WE HAVE come this far in the argument: First, that the political entities created with the Declaration of Independence were free and independent States, even as the instrument proclaimed them to be; second, that the States asserted for themselves the powers of sovereignty, and exercised those powers for more than a decade thereafter; third, that it was the States, as States, which formed the new Union of 1788; fourth, that in binding themselves to the Constitution the States delegated—not surrendered, but delegated—only certain of their powers, retaining all others to themselves.

More mistaken prophecy never was made by men of vision. The Union barely had become complete, with Rhode Island’s long-delayed ratification, before the States were shocked by a decision of the Supreme Court which challenged their sovereign authority and violated a clear Constitutional understanding. This was, of course, the Chisholm case. It marked the first major conflict in the continuing struggle of the States to preserve their rightful powers. It is here that a brief account of that struggle must begin.

In the United States, there is not much concern for the finer arts, though the new Republic boasts twenty-four colleges or universities, nine of them created in the preceding ten years. The country is too new, too raw, the hazards of the expanding frontier too much a reality. Linking the States—perhaps “linking” is too strong a word—is a primitive network of postroads and trails. One stage a day serves Boston and New York.(1) Of the 3,929,000 inhabitants enrolled in the census of 1790, all but 201,000 live in rural areas; and while communications are improving beyond the miserable level of the Revolution, news still filters with great slowness to remote places.

What is the news that carries the most absorbing meaning? Politics. Government. The novelty, and the passion, of a new union. “Never in American annals,” Charles Warren once observed, “has there been a period when men ‘took their politics so hard’ as in the twenty-five years between the framing of the Constitution and the end of the War of 1812.”(2)

They are hard men: Washington, loved but enigmatic, rides at the crest of his popularity; the bitterness of his last years has not begun. That thin-skinned and well-stuffed Federalist, John Adams, presides over the Senate. In Massachusetts, the pugnacious diarist of Dedham, Nathaniel Ames, is warring with his brilliant Federalist brother, Fisher. The Spring of 1790 brings the death of Benjamin Franklin, an old man, much honored—but we forget how young so many of the founding fathers were: Jefferson is forty-seven in 1790; Madison thirty-nine, John Marshall thirty-five, Hamilton only thirty-three. In Virginia, Spencer Roane, one of the most neglected jurists of our history, is twenty-eight. John Taylor of Caroline, farmer, soldier, profound political thinker, is thirty-seven.

Some of the players in the developing drama are not yet born—Upshur and Hayne will not appear until 1791—and some are only boys: Henry Clay in Virginia; Wilson Lumpkin in Georgia; John Randolph, a precocious seventeen, impatiently learning law and politics. And far apart, as the last decade of the 18th century opens, are two eight-year-olds: In New England, Daniel Webster; and in up-country South Carolina, a slender, dark-eyed, brooding boy, John C. Calhoun.

IT WILL be recalled that Section 2 of Article III of the Constitution extended the Supreme Court’s jurisdiction to “controversies . . . between a State and Citizens of another State.” There was no question that a State could bring such an action. Georgia, in 1792, had brought an action against one Brailsford, a British subject, to confiscate payment of a debt that was owed him.(3) But it was equally clear, or so the States thought, that no citizen could sue a State without the State’s consent. Hamilton, among other advocates of the Constitution, had declared this immunity to be “inherent in the nature of sovereignty.”(4)

In the autumn of 1792, in Virginia, came rumblings of a storm ahead. Suit was filed in the Supreme Court of the United States against the Commonwealth of Virginia by the Indiana Company, seeking clear title to certain lands “between the Alleghany mountains and the river Ohio, above the mouth of the Little Kanawha Creek.” The company contended that it held valid title as the result of a deed, in 1768, from the Six United Nations of Indians.

But Virginia did not agree to this at all. Thirteen years earlier, on June 12, 1779, the Virginia General Assembly had disposed of the claim: “All deeds which have been or shall be made,” said the Assembly at the time, “by any Indians, or by any Indian nation or nations, for lands within the limits of the charter and territory of Virginia . . . to or for the use or benefit of any private person or persons, shall be, and the same are hereby declared utterly void, and of no effect.”

Yet here, in a new Union, before a new court, was the Indiana Company again reviving its claim. On December 18, 1792, the Virginia Assembly adopted a brief resolution. Because it marks a significant step in the beginnings of State interposition, it merits quotation substantially in full. The resolution first recalled the Assembly’s action of 1779, and continued:

From the foregoing resolutions it appears, that the claim of the Indiana Company, has been already decided on by the legislature of this Commonwealth: Your committee are therefore of opinion, that such decision having been made previous to the adoption of the present Constitution, and under the former instrument of confederation (which expressly guaranteed perfect and unimpaired sovereignty as to all matters of internal government to all the States leagued under it) cannot be again called in question, before any other tribunal than the General Assembly of this Commonwealth, without a dangerous and unconstitutional assumption of power, which, if exercised, would give birth to a series of pernicious and disgraceful consequences, the extent and duration of which it is hardly possible to measure or calculate.

Resolved, That the executive be requested, to pursue such measures in this case, as may to them seem most conducive to the interest, honor and dignity of this Commonwealth.(5)

Look back at that language for a moment. Here, in 1792, was Virginia saying bluntly that the court’s jurisdiction “does not and cannot extend” to a certain case, and further, that Virginia “cannot be made a defendant in the said court.” Here was Virginia instructing her Governor to take “such measures” as he deemed conducive with the “interest, honor and dignity” of the State. One hundred and sixty-four years later, it will be seen, Virginia was to echo the language.

Before the Indiana Company could perfect its suit against Virginia, however, Alexander Chisholm of South Carolina, in the fall of 1792 filed suit in the Supreme Court against the State of Georgia. Chisholm appeared as executor of one Robert Farquhar, seeking recovery of property confiscated during the Revolution. Chisholm appeared, but Georgia did not.

On December 14, 1792, a resolution was offered in the Georgia House of Representatives declaring that for the State of Georgia to respond to Chisholm’s petition would not only involve the States in numberless law-suits. Acquiescence before the Court, it was said, also

would effectually destroy the retained sovereignty of the States, and would actually tend in its operation to annihilate the very shadow of State government, and to render them but tributary corporations to the government of the United States.(6)

Therefore, Georgia would not appear. Georgia would not be bound by the court’s decree, whatever it might be. The Court was acting in a fashion “unconstitutional and extra-judicial.”

This is a case of uncommon magnitude. One of the parties to it is a STATE; certainly respectable, claiming to be sovereign. The question to be determined is, whether this State, so respectable, and whose claim soars so high, is amenable to the jurisdiction of the Supreme Court of the United States? This question, important in itself, will depend on others, more important still; and may, perhaps, be ultimately resolved into one, no less radical than this—”do the people of the United States form a NATION”(7)

To the majority of the Court, there was no question of this. A nation had in fact been formed by “the People of the United States,” among whom were the people of Georgia. And in this nation, judicial authority over all things, over even the State of Georgia, had been vested in the high Court. That had been the will of the people of Georgia. They had joined others in forming themselves “into a nation for national purposes.” They had instituted, for such purposes, “a national government, complete in all its parts, with powers legislative, executive and judiciary; and in all those powers extending over the whole nation.” No person, said Wilson, and no State, could claim exemption from the jurisdiction of the national government. And as for the action brought by Farquhar’s executors? The action was validly filed.

It was a 4-1 decision by the Court, with Iredell dissenting. The Court ordered the plaintiff’s suit to be served on the Governor of Georgia, and commanded the State to appear or suffer judgment in default. From argument to opinion, the whole thing had taken but fourteen days.

A sense of profound shock swept the country. Massachusetts adopted a resolution denouncing the court’s opinion. Virginia’s Assembly declared:

That a State cannot under the Constitution of the United States, be made a defendant at the suit of any individual or individuals, and that the decision of the supreme Federal court, that a State may be placed in that situation, is incompatible with, and dangerous to the sovereignty and independence of the individual States, as the same tends to a general consolidation of these confederated republics.

The outrage in Georgia can be well imagined. Wilson’s opinion had come down in mid-February; the Georgia Legislature did not convene until the following November, but nine months provided no cooling-off period. Governor Edward Telfair advised the Legislature that he had refused to make an appearance, despite a process served upon him, because “this would have introduced a precedent replete with danger to the Republic, and would have involved this State in complicated difficulties abstracted from the infractions it would have made on her retained sovereignty.”(8) On November 21, the Georgia House of Representatives passed a bill providing that any Federal marshal who attempted to levy upon the property of Georgia in executing the court’s order “shall be . . . guilty of felony, and shall suffer death, without the benefit of clergy, by being hanged.”(9)

Let us take careful note of what happened next. The Court had said one thing—that it had power to hear this suit against Georgia. And Georgia, interposing, had said another thing—that the Court had no such authority. How was this question of contested power to be resolved? Who was right, Georgia or the Court?

The issue went to the States themselves. On February 19, 1793, the day after the Court’s opinion came down, a resolution was offered in Congress proposing an amendment to the Constitution. In January of 1794, this resolution was put in final form and in March it was submitted to the States. New Jersey and Pennsylvania, in effect, voted for the Court: they refused to ratify. But New York, Rhode Island, Connecticut, Massachusetts, New Hampshire, Vermont (which had joined the Union in March of 1791), Virginia, Kentucky, Maryland, Delaware, North Carolina—and of course, Georgia—held that the Court was wrong. They ratified what is now the Eleventh Amendment. They declared that:

The necessary number of ratifications could be counted by February of 1795, but the amendment was not formally proclaimed a part of the Constitution until 1798. What is important to note, in this regard, is that Georgia totally defied the Court from the very inception of the suit in 1792. Georgia defied the Court, and Georgia remained in the Union. There was no violence, no secession, no anarchy. There was simply a question of contested power, submitted to the States for decision. And when they had decided it, that was the end of it. The Court in 1798 struck the Chisholm case from its calendar, and with it went all other suits against States commenced prior to the effective date of the Eleventh Amendment.(10)

Actually, however, the controversy over suits against a State was antedated by a warm dispute over Federal resumption of debts incurred by the individual States during the Revolutionary War. In Virginia, the people “by persevering and strenuous exertions” had redeemed a considerable portion of their debts through the collection of heavy taxes imposed by the Virginia Assembly. They could look forward to “the most certain prospect of extinguishing the whole at a period not very distant,” and they were entirely unwilling to tax themselves further for the payment of debts contracted by other States “which either have not paid any part thereof themselves, or have reduced them but in a small proportion compared with the payments made by this State.” When Congress approved an act providing for assumption of all State debts, Virginia vigorously objected; and her resolutions of November 3 and 4, 1790, provide what are perhaps the earliest instances of State protest against Federal action. The first of these resolved

During the whole discussion of the Federal Constitution by the convention of Virginia, your memorialists were taught to believe “that every power not granted, was retained.” Under this impression and upon this positive condition, declared in the instrument of ratification, the said government was adopted by the people of this Commonwealth; but your memorialists can find no clause in the Constitution, authorizing Congress to assume the debts of the States! As the guardians then of the rights and interests of their constituents, as sentinels placed by them over the ministers of the Federal Government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion, they can never reconcile it to their consciences, silently to acquiesce in a measure which violates that hallowed maxim: A maxim on the truth and sacredness of which the Federal Government depended for its adoption in this Commonwealth.(11)

May it be suggested, in passing, that the high duty of State legislators, thus defined by Virginia in 1790, merits revival in our own time? The members of State legislatures could perform a service of immense value by serving today “as sentinels placed by [their constituents] over the ministers of the Federal Government,” to shield the people’s freedom from Federal encroachments “or at least to sound the alarm when it is threatened with invasion.” It is a pity to reflect that this obligation of State legislatures, as conceived by the Virginia Assemblymen of 1790, has been so neglected. Our sentinels have slept; and the few alarms they have sounded in recent years have come too late.

Two other instances of State interposition in this period may be noted.

One occurred late in 1790, in North Carolina, when a Federal circuit court attempted, by writ of certiorari, to transfer a case to its jurisdiction from the Supreme Court of North Carolina. The State judges, said Nathaniel Macon later, simply refused to obey the Federal command, and the marshal found himself unable to execute the order. North Carolina’s General Assembly warmly approved the State judges’ resistance.(12)

A second chapter of interposition against Federal courts was written in New Hampshire in 1793 and 1794. Here the grievance dated from the capture of the brig Susannah by the privateer McClary in October of 1777. The McClary was owned and manned by citizens of New Hampshire, but was acting under a commission of the Continental Congress. New Hampshire’s courts condemned the Susannah as a lawful prize, and in the view of New Hampshire, that ended the matter: No appeal was permitted, by State laws, to the Congress. However, objectors did appeal, and in September, 1783, the newly created Court of Appeals in Cases of Capture undertook to reverse the Supreme Court of New Hampshire. But New Hampshire paid no attention to this edict, and there the matter rested until the new Union was formed in 1788, and the new Federal courts came into being.

unsettling all the proceedings of the State governments prior to the existence of the Constitution; and will inevitably involve the States, and this State in particular, in confusion, and will weaken, if not perhaps destroy, the National Government.(13)

When this accomplished nothing, the New Hampshire Legislature, in January, 1795, for a second time remonstrated “against a violation of State independence and an unwarrantable encroachment in the courts of the United States.”(14)

“Can the rage for annihilating all the power of the States, and reducing this extensive and flourishing country to one domination, make the administrators blind to the danger of violating all the principles of our former Government?” asked the Legislature. For their part, the New Hampshiremen well remembered tyranny; they were aware of the meaning of the Confederation; they would remind Congress that under that Confederation, State powers not expressly delegated were reserved. What New Hampshire had done prior to formation of the Union was wholly the business of New Hampshire: Her legislature would not submit laws made before the Constitution “to the adjudication of any power on earth, while the freedom of the Federal government shall afford any constitutional means of redress.”

The declaration was in vain. A month later, the Supreme Court handed down a decision upholding the power of the new Federal courts to carry into effect decrees of the old Prize Court.(15)

It was a bitter dose for the States to swallow. The new Union was scarcely six years old. Yet already a pattern was taking shape along the lines that Patrick Henry had feared and Pendleton, Marshall, Madison, and Hamilton had discounted. In the debt assumption act, Congress had taken an action deemed unconstitutional by Virginia. Federal courts in two States had attempted to arrogate powers unto themselves in orders angrily resented by the States themselves. Worse still, the Supreme Court of the United States had acted in the Chisholm case in a manner so palpably unconstitutional that the States had been compelled to amend their fundamental law to preserve their sovereign power.

All this was part of the background that figured in events of 1798 and 1799, when the right of the States to interpose against Federal encroachment took eloquent and emphatic form.

THE EVENTS that were to lead to the Kentucky and Virginia Resolutions in the winter of 1798 had their genesis at least five years earlier, and in a sense, twenty years earlier. On the one hand were those patriots, among them some courageous officers in the Revolution, who maintained a warm affection for England even as they made war upon the tyranny of George III. On the other were the followers of Jefferson, grateful for the aid of Lafayette, who viewed the coming French Revolution as a further flowering of the independent man.

This loose division abruptly widened in 1793, with the beheading of Louis XVI and Marie Antoinette; many a New Englander, generally indifferent in the cause, suddenly awoke to the excesses of the French Revolution. Friendly salutations of “Citizen Banker” and “Citizen Farmer” seemed no longer so pleasant. As the conflict between France and England burst forth with new fury, the political cleavage in the United States widened still more with Washington’s proclamation of neutrality. This was bitterly received by Republicans, and when Jay’s Treaty of 1795 was added to it, their resentment knew no bounds. The French also were angered: By 1796, the number of raids by French corsairs on American shipping had reached a level just short of total humiliation to the United States. Diplomatic relations between France and the United States, severely strained, reached a breaking point as Ambassador Pinckney cooled his heels in Paris.

The political situation that obtained then, in the spring of 1798, could not occur now: Adams, a stout Federalist, was President; Jefferson, an ardent Republican, was Vice-President. No ready comparisons come to mind, but it was almost as if a McKin-ley were in the White House and a Wilson were presiding over the Senate. When Jefferson and other Republicans demanded to know the basis on which Adams had requested his defense measures, the President made public (on April 3, 1798) the dispatches from abroad. The French go-betweens were identified only as X, Y, and Z. With publication of the insulting offer, a cry arose that has come down in history: Millions for defense, but not a cent for tribute. In Philadelphia and New York, French sympathizers were stoned or publicly ridiculed. There began what Jefferson later was to describe as “this reign of witches.”

To say that political partisanship alone prompted the almost incredible events that followed is to oversimplify the story. The fight between Federalists and Republicans far transcended mere party labels. As James Morton Smith has emphasized,(16) the times reflected the growing division between the commercial North and the agrarian South, between creditors and debtors, and most significantly, between different views on the matter of how, and by whom, government should be administered. Adams and Hamilton saw control of government slipping from their hands into the hands of a rabble of wild Irishmen, Jacobins, and libertarians. They saw it happening, and in the fashion of distressed politicians from time immemorial, they undertook to meet the situation in the only manner that occurred to them: They undertook to pass a law.

Actually, in the period between June 18 and July 14, 1798, they passed four laws. The first of these was a tightened Naturalization Act, by which an alien’s period of residence, prior to obtaining citizenship, was increased from five to fourteen years. The object here was to keep immigrants, and especially the Irish, out of the Republicans’ clutches. A second law (though it was chronologically the third in the sequence) was an Alien Enemies Act, a permanent piece of wartime legislation, which was not too bad an enactment.

But on June 25, Adams signed the Alien Friends Act, and on July 14, he signed the Sedition Act.

Reasonably minded men might debate the constitutionality of the Alien Friends Act: Under the broad powers of the Congress to provide for the common defense and the national security, perhaps a case could be made for vesting such sweeping powers, even in peacetime, in a President—though the case would have to be made at the sacrifice of every tradition of Anglo-Saxon justice and right conduct.

The two years that elapsed after adoption of the Sedition Act merit our attention today for two reasons. One is to put in perspective the “dark night of oppression” that Mr. Elmer Davis is so fond of bewailing these days. The second is to comprehend the serious nature of the provocation that led to the Kentucky and Virginia Resolutions, and to Madison’s famed Report of 1799.

A contagion of “anti-Jacobinism,” spread by some shrewd propagandists for the Federalist party, swept the land: “The eyes of the devouring monster are upon us.”(17) Crowds of young Americans donned the black cockade, emblem of true Americanism, and roamed the streets of Philadelphia and New York searching for Jacobin sympathizers. It was the Federalists’ contention that a “French faction” was at work under the sinister direction of Thomas Jefferson, a disloyal and subversive element engaged in infiltrating government, press, even textbooks and schools. French tutors were denounced as French spies. The entire Republican party, even then, was termed the party “of treason.”(18) The only “true Americans” were Adams, Hamilton, and other leaders of the Federalist party.

The bulk of the press of that day supported the Federalist cause and fed the anti-Jacobin fires. But there were exceptions. One was Benjamin Bache’s Aurora, in Philadelphia. Bache was a grandson of Benjamin Franklin, which surely might have provided him respectable auspices, but he was a stinging gadfly with a marvelous gift for the contemptuous phrase. A virulent, vindictive, scurrilous fellow, only twenty-nine the summer of the Sedition Act, he first traduced Washington and then turned on “the blind, bald, crippled, toothless, querulous ADAMS.”

On June 27, 1798, two weeks before the Sedition Act was passed, Bache was arrested on a Federal warrant charging him with having libeled the President. Before Bache could be brought to trial, however, he died of yellow fever.

Bache was succeeded on the Aurora the following November by William Duane, another young journalist of Republican sympathies who also was a master of invective—so remarkable a master, indeed, that scarcely eight months passed before Pickering was demanding that he be prosecuted for pouring “an uninterrupted stream of slander on the American Government.”(19) Duane was arrested in July, 1799, charged with seditious libel, and subjected to more than two years of vengeful harassment by Federalists before they abandoned their persecution.

Another influential editor of the day, who like Duane had an Irish background, was John Daly Burk, of the Time Piece. He had settled in Boston, then moved on to New York. He wrote, among other things, that John Adams was responsible for the approaching war with France; that Adams had his heart set on becoming King; that Adams had deliberately falsified Gerry’s dispatches from France. In a truculent impulse, Burk cried that he wished the French would come and put “every scoundrel in favor of the [Federalist] government . . . to the guillotine.” On July 6, 1798, Burk was arrested for seditious libel, and bailed for trial in the autumn. While he waited trial, his newspaper collapsed.(20)

There also was Thomas Cooper, an Englishman who came to Northumberland County, Pennsylvania, in 1794, and in time became editor of the Northumberland Gazette. He, too, ran afoul of Pickering and Adams. On April 9, 1800, he was arrested for seditious libel. On April 24, he was found guilty, fined $400, and sent to prison for six months.

One of the most active Republican editors of the time was James Thompson Callender, of the Richmond Examiner. He was a despicable little man, usually filthy, most often dressed in a greasy jacket and a pair of stained and rumpled pants. One writer has described him as a “brilliant, drunken, fearless, mercenary product of Grubb Street, whose scurrilous pen was at the service of the highest bidder and whose libels were produced to order.”(21) Callender had written a book, The Prospect Before Us, and a copy of this polemic, thoughtfully put in the hands of Justice Chase as he was out riding circuit, was sufficient to send Chase snarling after Callender’s scalp. Callender’s sin was that he had described Federal judges and ambassadors as “paper jobbers” and “poltroons.” He had written that Adams “contrived pretenses to double the annual expense of government, by useless fleets, armies, sinecures and jobs of every possible description.”(22) This was enough for Chase to see to it that Callender was indicted for sedition as “a person of wicked, depraved, evil-disposed, disquiet and turbulent mind and disposition,” who falsely and maliciously had designed to defame the President and bring him into disrepute.

Thus Callender was tried, in the summer of 1800, before a justice of the Supreme Court determined to convict him at any price. Chase throttled defense counsel, and badgered attorneys until they retired in disgust. When William Wirt attempted to argue the constitutionality of the Sedition Act, Chase forced him to sit down, declared that no jury could pass on the point, and bellowed from the bench that to permit a petit jury to pass on the constitutionality of a law “would be extremely dangerous.” “Hear my words,” cried Chase, “I wish the world to know them—my opinion is the result of mature reflection.” It was no surprise when Callender was found guilty, fined $200, and sentenced to nine months in prison.(23)

Bache, Duane, Burk, and Callender were not the only editors persecuted in this period; they were only the most influential. There was Thomas Adams, of the Independent Chronicle in Boston, who died before he could be brought to trial. There was Abijah Adams, his brother, sentenced to one month in jail; and Anthony Haswell, of the Vermont Gazette, a $200 fine and two months in jail; and Charles Holt, of the Bee in New Haven, tried before Bushrod Washington, six months and $200; and David Frothingham, of the New York Argus, driven to the wall by Alexander Hamilton, four months and $100.

Nor were editors the only victims. There was a Vermont Congressman, Matthew Lyon, a belligerent fellow who once tangled with a fellow Congressman on the floor of the House in a fight with canes and fire tongs. Because of articles he published in the Vermont Journal critical of Adams, Lyon was indicted for sedition, brought to trial before Paterson, and sentenced to four months in jail. While languishing in his cell at Vergennes, a martyr to the Republican cause, he proceeded to run for re-election and defeated his opponents by almost two to one.

There were still other prosecutions. In Newark, one July day in 1799, townsfolk turned out for a parade honoring Adams. As the cannons burst forth in presidential salute, a village drunk, one Luther Baldwin, came listing toward John Burnet’s saloon. For what reason, inquired this bleary Republican, were the cannons firing? For Adams, he was told. To this Baldwin replied, perhaps with gestures, that for his own part, he did not care if the cannon ball went up the President’s arse.(24) For this he was arrested for sedition, tried before Bushrod Washington and District Judge Robert Morris, found guilty, and fined $150.

There was also a crackerbox radical in Dedham, Massachusetts, David Brown, who made the mistake of refusing to tell Justice Chase the names of friends and associates who shared his Republican views: He was fined $450, and sent to jail for eighteen months.

The list could be much extended throughout the Eastern Seaboard. The whole period from mid-Summer of 1798 to Jefferson’s inauguration in 1801 saw newspapers closed, Republican critics tarred and feathered, opposition Congressmen abused and vilified. Directing the whole ugly scene were the cool hands of Hamilton and Pickering. The hostile eyes of Judges Washington and Paterson gazed from the Federal bench, and everywhere there raged the burly, bustling, pig-eyed figure of Samuel Chase, a tyrant who held in his coarse hands the meaning of the Constitution.

Jefferson had almost clipped the wings of the Federalists’ Naturalization Law of June 18, 1798. The fourteen-year requirement passed by one vote only. Presiding over the Senate, however, he was unable to block the Alien Act of June 25 or the Sedition Act that followed on July 14. Sick at heart, he watched the dominant Federalists make a mockery of individual liberties and press freedom. Barely ten years after a new Constitution had become the supreme law of the land, Jefferson witnessed its palpable violation.

He could not remain idle. Six years earlier, Kentucky had come into the Union, but six years had done little to quiet the frontier spirit of the Kentucky wilderness. In Kentucky was his good friend John Breckinridge, who had studied law in Charlottesville, served in Congress from Virginia, and then returned to Lexington, to become first Attorney General of Kentucky and later a member of the Ken-tucky House of Representatives from Fayette County. So Jefferson arranged a meeting at Monticello one evening with Breckinridge and his fellow Kentuckian, Colonel W. C. Nicholas. “Happening to be together,” he was to write Breckinridge’s son in 1821, they consulted upon the dangers of the Alien and Sedition Acts.(25) “These gentlemen pressed me strongly to sketch a resolution,” said Jefferson, but it may better be imagined that it was Jefferson himself who tactfully did the pressing. As Vice-President, he could not participate publicly in the move he had in mind; already, he was being denounced daily as a traitor and a Jacobin. But enjoining Breckinridge and Nicholas to secrecy, he did in fact draft a resolution for the Kentucky Assembly, and in early November of 1798, Breckinridge offered it in the Kentucky House.

Now, the Kentucky Resolution of November 16, 1798, is a fairly long document. It was composed of nine separate resolves. Numbers Two through Eight related to specific grievances under the Alien and Sedition Acts, and may be passed over here. But the first and the ninth resolves establish foundation stones for the whole concept of State sovereignty and States’ rights. This was the first:

I. Resolved, that the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self-government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.

Kentucky’s final resolve in 1798 began with a declaration of affection for the Union and faithfulness to “the plain intent and meaning” of the Constitution. But Kentucky profoundly believed

Yet it had been urged that the Sedition Act was not intended to stifle honest criticism or reasonable opposition to the government; it was aimed only at libellers who would defame all government. Have confidence, the Federalists had urged, and all would be well.

Speaking to this Resolution, Breckinridge made it plain in the Kentucky House that something more than a mere memorial was involved.

“But when they pass laws beyond the limits of the Constitution —laws which they are no more authorized to pass than the Grand Turk—we do not ask a repeal, but ought to make a legislative declaration that, being unconstitutional, they are therefore void and of no effect.”(26)

Breckinridge hoped that Congress would repeal the offending laws, without waiting for them to expire. Meanwhile, he prayed that honest judges would refuse to act upon them. But if the courts should nevertheless attempt to enforce the laws?

“I hesitate not to declare it as my opinion that it is then the right and duty of the several States to nullify those acts, and to protect their citizens from their operation.”

It was objected that Paterson, Washington, Chase, and some lower Federal judges already had held the acts Constitutional. If the courts said the laws were Constitutional, who could say otherwise?

“Who are the judiciary?” demanded Breckinridge. “Who are they, but a part of the servants of the people created by the Federal compact? And if the servants of the people have a right, is it good reasoning to say that the people by whom and for whose benefit both they and the government were created, are destitute of that right?”

It was not to be supposed, he added, that the peoples’ immediate representatives, serving in the government of a State, were to do nothing but “to behold in silence the most flagrant violations of their rights, and bow in silence to any power that may attempt to impress them.” Certainly the States had a right “to remonstrate with men who may meditate their annihilation,” and for the time being, only an expression, a remonstrance, and an appeal were proposed: “We do not pretend to set ourselves up as censors for the Union, but we will firmly express our own opinions and call upon the other States to examine their political situation.”

The Virginia Resolution(27) is considerably shorter than its counterpart in Kentucky. It opens with a conciliatory resolve that the Virginia General Assembly

doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

The second resolve continues on a firmer note:

That this Assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that union, because a faithful observance of them, can alone secure its existence and the public happiness.

As Madison was to observe in his report the following year, “no unfavorable comment” could be directed toward the sentiments expressed to that point.

It is in the third paragraph that the Virginia Resolution gets to the heart of the State and Federal relationship under the Constitution:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.

In the fifth and sixth paragraphs, the resolution takes up the immediate provocation of the Alien and Sedition Acts, and recalls the devotion to freedom of the press that was deeply held in Virginia then, and—it may be added, with a Virginia editor’s pride in his State—is held as devotedly now. Here the Assembly resolved:

In the seventh paragraph, the Virginia Resolution returns to the conciliatory note with which Madison and Taylor began. The people of Virginia express their sincere affection for their brethren in other States, acknowledge their anxiety for establishing and perpetuating the Union, and avow their “most scrupulous fidelity to that Constitution which is the pledge of mutual friendship and the instrument of mutual happiness.” On this basis,

the General Assembly doth solemnly appeal to the like dispositions of the other States, in confidence that they will concur with this Commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional;(28) and that the necessary and proper measures will be taken by each, for co-operating with this State, in maintaining the authorities, rights and liberties, reserved to the States respectively, or to the people.

The concluding, ninth, paragraph of the resolves directs that copies be sent to other States.

Now, that is the Virginia Resolution of 1798. It was thoroughly debated from December 13 through December 21 in the House of Delegates. To be sure, many of the most illustrious and best known Virginians of the Convention of 1788 were not present in the Hall: Mason was dead; Henry, dying by inches at Red Hill; Marshall, busily campaigning for Congress; Madison, on the sidelines—he had retired from Congress the year before, and was not to be elected to the Virginia Assembly until the following year. But no apologies are necessary for the quality of the debate. Led by John Taylor of Caroline in favor of the Resolution, and by George Keith Taylor of Prince George County, an ardent Federalist, against it, the argument profoundly explored the nature of the Federal Union.

Something should be said of John Taylor. He was born, probably in 1753,(29) in Orange County, Virginia; left an orphan at ten; raised by his uncle, Edmund Pendleton, in Caroline County. He had fought in the Revolution; as a major, he had commanded troops under Lafayette in the weeks before Yorktown. Twice he served in the Virginia Legislature, first from 1779 to 1785, again from 1796 to 1800. He was an active and successful lawyer, three times a member of the United States Senate, a resourceful farmer whose theories of soil conservation (set out in Arator in 1813) antedated many of the modern farm practices of today. Above all, Taylor was a student of politics and government. He set out, in Construction Construed and Constitutions Vindicated (1820) and again in New Views of the Constitution (1823) a veritable Summa Theologiae for the States’ Righter. These works are not easy reading—John Randolph of Roanoke once complained that Taylor needed a translator for his books(30)—but they rank with Calhoun’s great addresses of 1831 and 1832 in expounding the federal nature of the Union. Thomas H. Benton placed him high among “that constellation of great men which shone so brightly in Virginia in his day,”(31) and Beveridge much later was to describe him as “the bravest, most consistent, most unselfish, as well as one of the ablest of Republicans.”(32)

John Taylor of Caroline opened debate on the Virginia Resolution with a direct attack on the Alien and Sedition Acts, but shortly the issues broadened. And when Archibald Magill, a Federalist Delegate from Frederick County, declared it “clear and evident” that the Federal government had a right “at common law” to enact the Sedition Law,(33) the whole debate was enlarged to explore the State and Federal relationship. It was Taylor’s position, of course, that the Federal government had no inherent powers of “common law.” The truth was then (and is now), that the Congress draws its authority from the enumerated powers of the Constitution only, and beyond these limits Congress has no authority.

What if Congress palpably exceed its authority? What was the remedy, if, as in this case, Congress enacted a grossly unconstitutional law, the executive signed it, and the courts approved it? Were the States and the people helpless?

Taylor thought not. Almost six months earlier, on June 25, he had planted in Jefferson’s fertile mind the seed of the Kentucky Resolution: “The right of the State governments to expound the Constitution,” he had written, “might possibly be made the basis of a movement toward its amendment.”(34) And beyond the State governments, said Taylor, anticipating South Carolina’s action of November, 1832, were the people in State conventions—they are “incontrovertibly the contracting parties.” But some step was imperative at once, and the asserted right of Virginia to interpose “for arresting the progress of the evil” provided a sound and Constitutional approach.

Now, William Cowan, a Federalist Delegate from Lunenburg County, had termed the Taylor-Madison Resolution a perfidious act, “because, by undertaking to declare one law of Congress unconstitutional, the Legislature would assume a power of declaring all their laws unconstitutional.”(35)

Let us follow Taylor’s response carefully, for he is replying here to the objection most frequently voiced against the doctrine of interposition—that it would breed constitutional chaos.

Let the proposition be reversed, said Taylor. Would it be said that the Legislature could not declare this act of Congress unconstitutional?

Admitting such a position, did not these consequences evidently follow, that the check meditated against Congress in the existence of the State governments, was demolished; that Congress might at its pleasure violate the Constitutional rights of these governments; that they must instantly become dependent, and be finally annihilated? Could it be perfidious to preserve the freedom of religion, of speech, of the press, and even the right of petitioning for a redress of grievances?(36)

Federalist speakers had insisted, Taylor observed, “that every government inherently possesses the powers necessary for its own preservation.” Without conceding the point, in the case of a Federal government created by the States, was it not evident that the broad principle surely applied to the State governments themselves? It must follow “that the State governments have a right to withstand such unconstitutional laws of Congress [and, it may be interpolated, unconstitutional decrees of a Supreme Court] as may tend to their destruction, because ‘such a power is necessary for their preservation.’”

Suppose, asked Taylor, Congress were to re-establish the plan of inheritance by primogeniture? Obviously, Congress had no Constitutional authority to enact such a law. Were the States to let their chancery courts fall into chaos, and all State laws of inheritance and descent be upset, while State legislatures merely remonstrated with the Congress or petitioned for repeal? By the time new Congressmen could be elected on a pledge to repeal the law, the mischief would be done; eggs once broken and scrambled could not be made whole again. Were the States to submit to such a clear invasion of their reserved powers, “all powers whatsoever would gradually be absorbed by, and consolidated in, the general government.”

Turning to another argument, Taylor noted that Congress clearly had a procedure, under Article V, by which it could check and challenge encroachment by the States upon the Federal sphere: Two-thirds of each House of Congress could propose an amendment to the Constitution to resolve a question of contested power. Similarly, two-thirds of the States, perceiving an encroachment by Federal authority, could demand that a convention be called to propose an amendment for the same purpose. But in the end, who was to decide such questions? Obviously, the States themselves. Congress could propose; the States would dispose. Let it never be supposed, said Taylor emphatically, “that the States hold their constitutional rights by the courtesy of Congress.”(37) No. “Congress is the creature of the States and of the people; but neither the States nor the people are the creatures of Congress. It would be evidently absurd, that the creature should exclusively construe the instrument of its own existence.”

In a milder tone, Taylor then emphasized the intention of the Virginia Resolution. Was insurrection proposed? Or violent secession from the Union? Resort to arms? None of these. Are the Republicans, he asked, possessed of fleets and armies? If not, to what could they appeal for defense and support? To nothing save public opinion. If that should be against them, they must yield. Meanwhile, the resolution of interposition offered to Virginia “the only possible and ordinary mode of ascertaining the opinion of two-thirds of the States, by declaring its own, and asking theirs.” The States, in the last resort, were the final referees.

It was objected that the Supreme Court was created to arbitrate such questions of contested power. This was Taylor’s reply:

With respect, he said, to the remedy proposed in the talents and integrity of the continental judges, without regarding the prejudices which might probably exist in favour of the government, from which an appointment should flow, it might be remarked, that the judges by the Constitution are not made its exclusive guardians. That if continental judges were the proper referees as to the constitutionality of continental laws, State judges were the proper referees as to the constitutionality of State laws; that neither possessed a power over the other, whence a clashing of adjudication might ensue; and that if either had been a superior, the same consequences would result as would flow from a superiority of Congress, or of the States over the other, with this additional aggravation, that the people could not by their elections influence a constitutional question, to be decided by the judges, as they could to a certain extent, when it was to be decided by a general or State legislature. . . .(38)

Taylor’s argument was long and tightly reasoned. Unlike Henry or Mason or Randolph, he had no gift for humor or for the digressions that relieve a major speech. His address of December 20 must have wearied the House, for late in the afternoon, when a Federalist Delegate from the Eastern Shore arose to reply, “such a noise prevailed, from the impatience of the committee to rise, that he could not be distinctly heard; he declined, and sat down.”

Yet Taylor’s arguments carried the day. On the next afternoon, despite an equally long and humorless address by George Keith Taylor, the Virginia Resolution came to a vote; and after three Federalist challenges had been beaten off; it passed and went to the Senate by a straight party-line division, 100-63. And on the 24th, as we have noted, the Senate sent it forth.

During the course of the debate, twenty-four-year-old James Barbour, who later was to have a brilliant career in Virginia, had freely predicted what would happen: Other States, under the domination of Federalist legislatures, would reject any resolutions from Kentucky or Virginia critical of the Adams administration.(39) Indeed they did: Delaware promptly declared the Virginia Resolution “an unjustifiable interference with the General Government . . . and of dangerous tendency.” Rhode Island denounced “the very unwarrantable resolutions.” Massachusetts said that “The people, in that solemn compact which is declared to be the supreme law of the land, have not constituted the State legislatures the judges of the acts or measures of the Federal governments.” New York spurned these “inflammatory and pernicious sentiments and doctrines.” Connecticut viewed the Resolution “with deep regret.” New Hampshire, resolving that the Alien and Sedition Acts were “constitutional and expedient,” declared that “State Legislatures are not proper tribunals to determine the constitutionality of the laws of the General Government.” Vermont, which “highly disapproves,” added that the power to decide on the constitutionality of laws made by Congress had been “exclusively vested in the judiciary courts of the Union.”

RiESOLVED, That this Commonwealth considers the Federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several States: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution: That, if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State Governments, and the creation upon their ruins, of a General Consolidated Government, will be the inevitable consequence: That the principle and construction contended for by sundry of the State legislatures, that the General Government is the exclusive judge of the extent of the powers delegated to it, stop nothing [short] of despotism—since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers: That the several States who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction; and, That a Nullification by those sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy: That this Commonwealth does, under the most deliberate reconsideration, declare, that the said Alien and Sedition Laws are, in their opinion, palpable violations of the said Constitution: and, however cheerfully it may be disposed to surrender its opinion to a majority of its sister States, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That, although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet, it does, at the same [time] declare, that it will not now, or ever hereafter, cease to oppose in a constitutional manner, every attempt at what quarter soever offered, to violate that compact. And, finally, in order that no pretext or arguments may be drawn from a supposed acquiescence, on the part of this Commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the Federal compact—this Commonwealth does now enter against them its solemn PROTEST.(40)

The most notable aspect of this Second Kentucky Resolution, and the one to which attention most frequently is drawn, is the use of the word “nullification”—that “a nullification by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.” It is a mistake to read into Kentucky’s protest of 1799 a Jeffersonian sanction for South Carolina’s action of 1832. Considered as a whole, the resolution is what its concluding phrase declares it to be—a protest on the part of Kentuckians who “will bow to the laws of the Union,” but “will not cease to oppose, in a Constitutional manner,” laws which the State solemnly regards as palpably unconstitutional. This was an expression of opinion that the laws were void, and hence not laws at all; and it was a pledge to oppose them by every Constitutional means. When it is recalled that the hated enactments, at this point, had fewer than fifteen months to run before their statutory expiration, it may be submitted that neither Kentucky nor Virginia felt that more drastic action was required.

THIS WAS Madison's view in Virginia. The month after Kentucky adopted her Second Resolution, Madison brought to the Virginia House of Delegates the long report of a special committee to which the replies of other States had been referred. His object was to re-examine the Resolution of 1798, “and to inquire whether there be any errors of fact, or principle, or of reasoning, which the candour of the General Assembly ought to acknowledge and correct.” The committee gave special attention to the third resolve of the preceding year—they scanned it “not merely with a strict, but with a severe eye”—and confidently pronounced it, in its just and fair construction, to be “unexceptionally true in its several positions, as well as constitutional and conclusive in its inferences.”

The third resolve had opened with an assertion that the powers of the Federal Government “result from the compact. . . .” Madison found it sufficient to remark that in all the debates and discussions when the Constitution was pending for ratification, “it was constantly justified and recommended, on the ground, that the powers not given to the government, were withheld from it.” Indeed, he added, the subsequent Tenth Amendment should have removed all doubt in its reference to “the powers not delegated to the United States by the Constitution.”

What of the declaration that it is a compact “to which the States are parties”? Admitting that the term “States” is sometimes used in a vague sense, Madison could find no objection to the language. The proper meaning of the term here was to be found in the sense of States as “the people composing . . . political societies, in their highest sovereign capacity.” Thus employed, it could not be denied that

The resolution has accordingly guarded against any misapprehension of its object, by expressly requiring for such an interposition, the case of a deliberate, palpable, and dangerous breach of the Constitution, by the exercise of powers not granted by it. It must be a case, not of a light and transient nature, but of a nature dangerous to the great purposes for which the Constitution was established. It must be a case, moreover, not obscure or doubtful in its construction, but plain and palpable. Lastly, it must be a case not resulting from a partial consideration, or hasty determination; but a case stamped with a final consideration and deliberate adherence. It is not necessary, because the resolution does not require that the question should be discussed, how far the exercise of any particular power, ungranted by the Constitution, would justify the interposition of the parties to it. As cases might easily be stated, which none would contend ought to fall with- in that description, cases, on the other hand, might, with equal ease, be stated, so flagrant and so fatal, as to unite every opinion in placing them within that description.

On this objection it might be observed, first, that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department; secondly, that if the decision of the judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the judiciary, must be equally authoritative and final with the decisions of that department. But the proper answer to the objection is, that the resolution of the General Assembly relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it. The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

Special attention may be directed, perhaps, to the several paragraphs in which Madison dealt with the possibility of encroachment by the judiciary upon the reserved powers of the States. In Federalist 39, it will be recalled, he had described the Supreme Court as “the tribunal which is ultimately to decide” controversies between State and Federal authority. He had assumed, then, that such decisions would be “impartially made, according to the rules of the Constitution,” and he had remarked that “some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact.” Some thirty years later, with two terms in the White House behind him, Madison again was to take the side of national authority.(41) He was to insist, then, that the States must submit to unconstitutional encroachments upon their authority or take the ultimate resort of armed rebellion and secession. Late in his life, the idea of action by the States “to arrest the progress of the evil” seemed to have escaped Madison’s mind. The alternatives, to the Madison of 1830-31, were two: Submission, or war.

He was on the right track in 1799. As events in our own time have clearly demonstrated, it is indeed quite possible for the Federal judiciary, by arrogating unto itself the prerogatives of the Congress and the States, to usurp powers not granted to the general government by the Constitution nor prohibited by the Constitution to the States. In Madison’s own phrase, it has been abundantly proven that “dangerous powers, not delegated” may be usurped not only by Congress, “but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution.” And what was Madison’s remedy in 1799? Let it be repeated: The ultimate right of the parties to judge whether the compact has been dangerously violated “must extend to violations by one delegated authority as well as by another—by the judiciary, as well as by the executive, or the legislature.”

What Madison here recognized—and what he later was to overlook—is that the Constitution had one major flaw: The Constitution had established an ingenious system of checks and balances by which every conceivable source of oppression, with a single exception, may effectively be held in bounds.

That single exception is the Supreme Court of the United States.

Consider the other weights and counterweights contrived by the founding fathers: The pressure of large blocks of population, as represented in the House, would be offset by the authority of the States, as represented in the Senate. The power of the Congress could be checked by Presidential veto. The power of the President could again be balanced by the authority of Congress to over-ride a veto. The judicial branch, restraining Congress and the executive alike, was to provide a further barrier against usurpation of power. Beyond this, the people themselves, through their right of franchise, would serve as a direct check upon their Representatives in the House (and later in the Senate). The presidential electors, reflecting the will of the people, could refuse a second term to a President who overstepped his powers.

But in this whole remarkable machine, the founding fathers left one great power uncontrolled: The judiciary alone, of all agencies of government, was left with no effective restraint, save—as a learned justice was to comment much later—the judges’ own sense of self-restraint.(42)

It was not planned that way. At the time the Constitution was formed, three misconceptions affected critical thought. The first was that judges named to the Supreme Court would be men of towering reputation at the bench or bar, learned, impartial, beyond political feeling. The second was that the judiciary, lacking control over both purse and sword, would ever be the weakest branch of government. The third was that, in the wholly improbable event that the Supreme Court should transgress its powers, Congress could invoke the weapon of impeachment against individual judges, or could control the Court’s appellate jurisdiction by exercising its authority to fix “exceptions” and “regulations” under which cases could be heard on appeal.

In operation, these concepts swiftly proved faulty. Some of the early appointees to the Court were men of small stature; yet under Marshall, the Court was shaped into not the weakest, but in fact the strongest arm of the Federal government. Impeachment, as Jefferson scornfully remarked,(43) was no more than a scarecrow. As for making exceptions to the Court’s appellate powers, Congress speedily saw the Pandora’s box that would be opened by indiscriminate tinkering.(44)

But in the beginning, very little of this was foreseen; and those, like Henry, who perceived the dangers, were smoothly talked down. Little of the argument of 1787-88 went to the heart of the Court’s powers; most of it groped around the edges.

The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither force nor will, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments.(45)

Beyond comparison, Hamilton went on to say, the judiciary “is the weakest of the three departments of power.” He recalled a comment from Montesquieu—”Of the three powers above mentioned, the judiciary is next to nothing.” The Court, Hamil-ton predicted, could never attack the executive or the legislative branch successfully. And while individual instances of judicial oppression might occur, “the general liberty of the people can never be endangered from that quarter.” Hamilton’s chief concern was for the judiciary itself: Considering its “natural feebleness,” he thought it “in continual jeopardy of being overpowered, awed, or influenced by its coordinate branches.”

To be sure, it was contemplated that the Supreme Court would have power to pronounce legislative acts contrary to the Constitution and hence void. This might imply a superiority on the part of the court over the Congress. Not so, said Hamilton. It was the Constitution that would be supreme. The Court was no more than its interpreter. And suppose the interpreter should err? Suppose that judges might substitute their will instead of their judgment in passing on laws? Hamilton gave no weight to this argument. It might as well happen, he said, that members of the legislative branch would err by adopting contradictory statutes. The caprice of lawmakers, the caprice of judges—he could see no difference; but what Hamilton here overlooked is that lawmakers are subject to a direct and recurring approval from the people at the polls. Judges serve for life, beyond the reach of the franchise.

Now, it will be objected that it is nowhere spelled out in the Constitution, that the States have any right to raise a question of contested powers, and by such an appeal to seek to frustrate enforcement of an edict of the Court. For that matter, it is nowhere spelled out in the Constitution that the Court has any authority to declare an act of Congress, or of the executive, a void enactment. This power simply was asserted by the Court. It was a power that had to be asserted by the Court. Similarly, the power of the States to interpose against judicial tyranny is a power that must be asserted, simply in the nature of things, if the States are to survive. The alternative is a government in which the States-people are not supreme, but five men are supreme over them; it is a government in which the understood intention of the Constitution may be swept away by the caprice, or the sociology, of a majority of the Court.

More than this, the objections to interposition by the States against “deliberate, palpable, and dangerous” encroachments upon their rights, are basically the weak and tremulous cries of spineless fellows who would rather bear the ills of despotism than risk the dangers of a transient anarchy. They are the docile, automaton voices repeating, in deadly unison, “we must obey, we must be slaves, we must comply.” Opposed to them are the still vigorous voices, repeating, after Hamilton himself, “There is no position which depends on clearer principles, than that every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void.” No legislative act, no judgment of the Court, contrary to the Constitution, can be valid. To deny this would be to affirm that the deputy is greater than his principal, that the servant is above his master, that the judges, subject to the people’s Constitution, are above the Constitution; that nine men named for life may exercise not only those powers of adjudication with which they are vested, but also those powers of effective Constitutional amendment which are denied them.

But how is this right—not a privilege, but a right—to be exercised? Clearly, the first step is for an infraction of the compact to be charged. Who is to make such a charge? The answer must be, of course, the States. They are the parties to the compact, each standing equally with the others. Is it necessary that any particular number of States unite in charging an infraction? Obviously, no. A particular usurpation by the Federal government may affect only a single State, or no more than two or three, but the nature of the usurpation, to the affected States, may be such as to destroy their most cherished institutions. If the right to interpose could be exercised only by not fewer than one-fourth of the States, or one-third, acting in concert, the right would be meaningless; the federal nature of the compact, in which each respective State is an equal member, would thereby be subverted.

the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to cooperate with the officers of the Union; the frowns of the executive magistracy of the State, the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the Federal government would hardly be willing to encounter.(46)

Yet if the right to interpose has any effective meaning, it must extend beyond the range of mere protest, as in the Kentucky and Virginia Resolutions; it must be more than remonstrance, as in Virginia’s action on the debt assumption act. It must be more than a deferential memorial to the Congress. In practice, it must extend even beyond the “legislative devices” that Madison envisioned. In those rare and exceptional cases in which submission to usurped power would mean the destruction of a vital State institution, means must exist by which even one State may take action to suspend Federal encroachment pending an appeal to the ultimate sovereignty of all the States. In this last form, the right to interpose is the right of effective nullification; it is the right of appeal with supersedeas.

The States of the American Union, in their continuing conflict with Federal authority, have exercised this right many times, in varying forms and in different degrees of forcefulness. Not only State executives and legislatures, but State judges also have thus asserted State sovereignty. The right to interpose has been exercised by New England and Midwestern States no less than by Southern States, for the right is inherent in the existence of a State, apart from considerations of geography or commerce. In the next section, some of the applications of this right will be reviewed.