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 Breckinridges 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.
Let us pause there for a moment. Hamilton is handy authority (though not even the most ardent apostle of centralized government could deny it), that laws, to be lawful, must have proper weight behind them. There is no position which depends on clearer principles, Hamilton had said, 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, therefore, contrary to the Constitution [and, it may be interpolated, no judicial decree either] can be valid. That is exactly what Jefferson was saying here, in the opening sentence of the Kentucky Resolution, and it is as true today as it was in 1798. The resolution continued:
That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party.
And then the essence of the right of interposition:
That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. [Emphasis supplied.]
What Jefferson was saying here was that, yes, the Constitution is the supreme law of the land; and, yes, the Constitution is superior to anything in the laws and Constitutions of the States. But one ultimate power remains, superior to the instrument itselfthe power that created the instrument, that made it and can unmake it, the power of the sovereign States themselves. By any other line of reasoning, a Frankenstein creature must be accepted, a creature more powerful than its creatora general government with power to make its discretion, and not the Constitution, the measure of its powers.
Kentuckys 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
that to take from the States all the powers of self-government, and transfer them to a general and consolidated Government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these States.
Then the resolve continued on a stronger and more ominous theme:
. . . Therefore, this Commonwealth is determined, as it doubts not its co-States are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth.
What were the unlimited powers here involved? Under the Alien and Sedition Acts, said the Kentucky Resolution,
the General Government may place any act they think proper on the list of crimes and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; . . . they may transfer its cognizance to the President or any other person who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction. . . .
The friendless alien had been selected as the safest subject of a first experiment in the absolute dominion of one man, but the American citizen would soon follow. Indeed, the Sedition Act already had seized upon American citizens for its prey. Prosecutions under these offensive laws, unless halted, would furnish new calumnies against Republican Governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron.
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.
Jefferson answered in hard and ringing words. Let it be resolved, said the Kentucky Resolution,
That it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is everywhere the parent of despotism; free government is founded in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts and say if the Constitution has not been wise in fixing the limits to the government it created, and whether we should be wise in destroying those limits. . . . In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.
Thus setting forth her views of the Alien and Sedition Acts, and of the nature of the Union, Kentucky asked in her resolution for co-States to resolve the question: Are these acts authorized, or are they not, by the Constitution? For Kentuckys own part, the Legislature viewed the acts
as so palpably against the Constitution as to amount to an undisguised declaration, that the compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States of all powers whatsoever.
This would mean, said the Kentucky Resolution, that the States had surrendered the form of government they so recently had createdthat they elected to live under a government deriving its powers from its own will, and not from our authority. The Resolution prayed that the co-States, recurring to their natural right, would concur in declaring these acts void and of no force, and would unite in demanding their repeal.
Speaking to this Resolution, Breckinridge made it plain in the Kentucky House that something more than a mere memorial was involved.
When the government of the United States enact impolitic laws, he declared, we can only say: We pray you to repeal them. As to matters of mere policy, they are, it is admitted, vested with a discretionary power.
But when they pass laws beyond the limits of the Constitution laws which they are no more authorized to pass than the Grand Turkwe 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.
Kentucky completed its action on November 16. Four weeks later, on Thursday, December 13, Virginia took up the cause. At the instance of James Madison, who was not himself a member of the General Assembly, John Taylor of Caroline offered in the House of Delegates what is now known simply as the Virginia Resolution. Eight days later it won approval in the House by a party-line vote of 100-63; the Virginia Senate promptly concurred, 14-3, and on Christmas Eve, the Resolution went forth to sister States.
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.
One amendment was made in this paragraph by the House prior to approval of the Resolution. As Taylor introduced the resolution, the language would have recited that Federal powers result from the compact to which the States alone are parties. With Taylors consent, the word alone was dropped.
Because this third paragraph of the Virginia Resolution is so essential to the doctrine of States rights which this essay undertakes to defend and to promote, it will be argued at some length hereafter. In the interests of an orderly presentation, it seems best at this point simply to proceed with the text of the Resolution as adopted in the Virginia Assembly that December.
The fourth resolve, except for its concluding reference to monarchy (which seems anachronistic now, but was a serious matter then), might have been drafted in our own time. It declares
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the Federal Government, to enlarge its powers by forced constructions of the Constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of powers in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the States by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
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, andit may be added, with a Virginia editors pride in his Stateis held as devotedly now. Here the Assembly resolved:
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the Alien and Sedition Acts passed at the last session of Congress; the first of which exercises a power nowhere delegated to the Federal Government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government, as well as the particular organization, and positive provisions of the Federal Constitution; and the other of which acts, exercises in like manner, a power not delegated by the Constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto;a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.
That this State having by its convention, which ratified the Federal Constitution, expressly declared, that among other essential rights, the liberty of conscience and of the press cannot be cancelled, abridged, restrained, or modified by any authority of the United States, and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other States, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution, it would mark a reproachful inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.
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 sidelineshe 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 readingJohn Randolph of Roanoke once complained that Taylor needed a translator for his books(30)but they rank with Calhouns 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 Taylors 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 Jeffersons 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 Carolinas action of November, 1832, were the people in State conventionsthey 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 Taylors response carefully, for he is replying here to the objection most frequently voiced against the doctrine of interpositionthat 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 Taylors 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)
Taylors 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 Taylors 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.
And throughout the spring of 1799, the half-war with France brought new prosecutions of Republican sympathisers. Samuel Chase, his wig askew, continued on circuit. The Federalist party, bent on its own destruction, rushed headlong into the revolution of 1800 that swept Jefferson into the presidency.
The adverse replies of Federalist legislatures, as Barbour had noted, were clearly predictable; but predictable or not, they had to be answered:
Kentucky, acknowledging that further action would be unavailing, nevertheless stood her ground in a second resolution, adopted unanimously on November 14, 1799. It is not long:
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 despotismsince 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 compactthis 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 nullificationthat 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 Kentuckys protest of 1799 a Jeffersonian sanction for South Carolinas action of 1832. Considered as a whole, the resolution is what its concluding phrase declares it to bea 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 yearthey scanned it not merely with a strict, but with a severe eyeand 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 Constitution was submitted to the States; in that sense, the States ratified it; and, in that sense of the term States, they are consequently parties to the compact, from which the powers of the Federal government result.
The next assertion, in the controversial third resolve, was that Federal powers are limited by the plain sense and intention of the instrument constituting that compact, and also, that Federal powers are no farther valid than they are authorized by the grants therein enumerated. It does not seem possible, said Madison, that anyone could object to that statement. The Constitution meant what the participating parties to it intended it to mean; and as for the limit on Federal powers, this was clear: If the powers granted be valid, it is solely because they are granted; and, if the granted powers are valid, because granted, all other powers not granted, must not be valid.
Then comes the key sentence: 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.
This is the heart and soul of the right to interpose. The language was to be re-affirmed, substantially verbatim, by the Hartford Convention in 1814; by the Wisconsin Legislature in 1859; and by the Virginia General Assembly in 1956. When men talk of the Doctrine of 98, this is the paragraph they are talking of. Let Madison speak at length, and without interruption:
It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature of compacts, that, where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated. The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this legitimate and solid foundation. The States, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
It does not follow, however, that because the States, as sovereign parties to their constitutional compact, must ultimately decide whether it has been violated, that such a decision ought to be interposed, either in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a breach of the whole, every part being deemed a condition of every other part and of the whole, it is always laid down that the breach must be both wilful and material to justify an application of the rule. But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles of their political system.
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.
But the resolution has done more than guard against misconstruction, by expressly referring to cases of a deliberate, palpable, and dangerous nature. It specifies the object of the interposition which it contemplates, to be solely that of arresting the progress of the evil of usurpation, and of maintaining the authorities, rights, and liberties appertaining to the States, as parties to the Constitution.
From this view of the resolution, it would seem inconceivable that it can incur any just disapprobation from those who, laying aside all momentary impressions, and recollecting the genuine source and object of the Federal Constitution, shall candidly and accurately interpret the meaning of the General Assembly. If the deliberate exercise of dangerous powers, palpably withheld by the Constitution, could not justify the parties to it, in interposing even so far as to arrest the progress of the evil, and thereby to preserve the Constitution itself, as well as to provide for the safety of the parties to it, there would be an end to all relief from usurped power, and a direct subversion of the rights specified or recognised under all the State constitutions, as well as a plain denial of the fundamental principle on which our independence itself was declared.
But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner.
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.
However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
The truth declared in the resolution being established, the expediency of making the declaration at the present day, may safely be left to the temperate consideration and candid judgment of the American public. It will be remembered that a frequent recurrence to fundamental principles, is solemnly enjoined by most of the State constitutions, and particularly by our own, as a necessary safeguard against the danger of degeneracy to which republics are liable, as well as other governments, though in a less degree than others. And a fair comparison of the political doctrines not unfrequent at the present day, with those which characterized the epoch of our revolution, and which form the basis of our republican constitutions, will best determine whether the declaratory recurrence here made to those principles, ought to be viewed as unseasonable and improper, or as a vigilant discharge of an important duty. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind; and at no time perhaps more necessary than at the present.
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 Madisons 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 Madisons 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 Madisons 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 anotherby the judiciary, as well as by the executive, or the legislature.
What Madison here recognizedand what he later was to overlookis 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, saveas a learned justice was to comment much laterthe 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 Courts 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 Courts appellate powers, Congress speedily saw the Pandoras 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 Courts powers; most of it groped around the edges.
Whoever attentively considers the different departments of power, said Hamilton, must perceive that in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. He continued:
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 MontesquieuOf 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. Hamiltons 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 judgeshe 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.
Hamiltons point here was to emphasize that the Court and the Congress ranked as equals, but the power of the people, as declared in the Constitution, is superior to both. Ultimately, all authority must come back to the Constitution; here and here only is to be found the supreme law of the land.
The question that Hamilton was grappling with in the Federalist is the same question, basically, that troubles some of the States in the Union in mid-twentieth Century. How can the ultimate authority of the people declare itself effectively against encroachments by the Court? Is it to be argued that the judiciary, alone among all departments of government, is infalliblethat it cannot commit an unconstitutional act? If that be the argument, then is it not true that a majority of five on a Court of nine have the power, subject to no immediate and effective check, to shape the Constitution as they please?
No such sweeping and authoritarian power, it may be submitted, ever was intended to be vested in the Supreme Court of the United States. To defend this proposition is to cancel out the entire philosophy of a federal union of States; to advance this argument is to make a mockery of the whole plan of checks and balances.
In logic, in reason, in history, in plain common sense, there must be, in the American plan, some Constitutional check upon the Court. It is to be found today where it has existed all along, in the right of the States to interpose their sovereign powers against judicial tyranny. And in 1799, Madison saw this to be true.
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.
In the 1830s, Madison himself was to object that the doctrine of interposition, effectively applied, is the doctrine of anarchythat the right of a State to suspend one law, as to itself, is the right of a State to suspend all lawsor a right, vested in all of the States, to pick and choose those laws which they will obey, and those laws they will defy. But this objection is more theoretical than real. It presupposes, on the part of the States, a willingness to put State interests above national interests, which assumption scarcely can be defended in the light of a hundred years of submissive acceptance by the States of Federal expansion. It presupposes, also, that the States would interpose upon light or transient grounds. This is, at bottom, the assumption of those nationalists who aggrandize the Federal government as a power that can do no wrong (save only when it fails to reach as far as they would like), and treat the States as puny, self-interested bodies devoid of feeling or concern for those interests that truly are national in scope.
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 peoples 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.
Quis custodiet custodies? Who will watch the watchdogs? The Madison Report of 1799 provided the only possible basis for answering the question; it set forth the missing check-and-balance; it suggested a means by which the progress of judicial tyranny may be arrested. The right of the States to interpose, he said, must extend to violations by one delegated authority as well as by anotherby the judiciary, as well as by the executive or the legislature.
But how is this rightnot a privilege, but a rightto 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.
Now, the author of this essay is not here suggesting that in every case of grave usurpation of State prerogatives, the aggrieved State or Statesmust exert the right to interpose in its most drastic form. Interposition, as the term is used herein, embraces the widest possible range of State protest, remonstrance, objection and intervention. The term covers what Madison himself described, in the Federalist, as means by which Federal encroachments could be resisted. Should an unwarrantable measure of the Federal government be unpopular in particular States, he said,
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 Virginias 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.