Constitutional role of the federal government
April 3, 2010
“Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] 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; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.”
So wrote Thomas Jefferson, Vice President of the United States, in a document drafted at the request of members of the Kentucky legislature in 1798. Kentucky passed Jefferson’s paper and broadcast it to the world as the definitive opinion and stand of the sovereign people of the State. The language drafted by James Madison for similar documents adopted by the Virginia legislature in 1799 and 1800 was similarly unequivoical in its constitutional position and forceful in expression.
The people, acting through their natural polities, the States, had created and given authority to the Constitution of the United States. The Constitution conferred powers on a general government to handle certain specified matters that were common to the “general welfare” of all the States. That government was an agent. It could not be the judge of its own powers. To allow it to be so would mean nothing less than a government of unlimited power, a tyranny. The partners to the Constitution, the sovereign peoples of the States, were the final judges of what they had intended the Constitution to mean. When the general government exceeded its power it was the right and duty of the State to interpose its authority and defend its people from federal acts of tyranny – yes, to render a federal law inoperative in the State’s jurisdiction…
The scholars of the rising leftist Establishment who took over American history writing beginning in the 1930s invented a self-flattering fable to render the Kentucky and Virginia documents themselves null and void. Jefferson and Madison, they said, really did not care about States’ rights. They were merely anticipating the great tradition of the American Civil Liberties Union in opposing the Alien and Sedition Acts. Their concern was to defend the freedom of speech of the non-conformist radicals of their time.
This established interpretation is a lie and requires a good deal of either ignorance, self-deception, or deliberate falsehood to peddle. It is true that the Virginia and Kentucky acts were not followed up by active resistance to the feds. They did not have to be, because Jefferson and his friends won the following elections, got rid of the bad laws, and compensated those who had been harmed by them. There is evidence that Virginia and North Carolina were quite willing and able to call out the militia if necessary and that grand juries were standing by to indict any offending feds.
Not interested in State rights? Jefferson reiterated the centrality of State rights to the preservation of liberty and self-government in his inaugural address (and in hundreds of letters for the rest of his life). His party and the succeeding Democratic party proclaimed “The Principles of 1798″ repeatedly as their foundational philosophy, right up to the War to Prevent Southern Independence. It could not be clearer: in the American government system State rights and liberty could not be separated. They were the same thing. They had the same defenders and the same enemies. The Sedition Act was not just an invasion of individual rights, it was an illegal invasion of a sphere that the people had left to their States.
Further, the Sedition Act, punishing criticism of federal officials with jail sentences and fines, had been passed in stark defiance of the recently adopted First and Tenth Amendments which absolutely forbade Congress to pass any law abridging the freedom of speech and press and reserved to the States all powers not specifically conferred on the government. How then could Congress pass such a law as the Sedition Act? Because the Federalists, Hamilton and Adams and their supporters, justified their legislation by invoking the Common Law’s provisions about the punishment of “sedition.” The Common Law existed in each State to the extent that State had found it worthwhile to adopt it, but it had no place in a written document of delegated powers such as the Constitution for the United States. If the feds could ignore specified power limitations by grafting Common Law jurisdiction into the Constitution, then literally everything under the sun could be brought under their power. Not only that, but everything under the sun could be ultimately disposed of by the federal courts, which would become the new sovereign. This had to be stopped.
Interposition by Virginia and Kentucky was intended to halt the Northeastern elite’s relentless agenda to become the economic and moral overseers of all Americans through the federal machine. This has always been the engine for the unconstitutional usurpation of federal power – then, since, and now. When State interposition next came into serious play in the United States, the occasion was the tariff laws, by which the Northeastern elite had perverted a constitutional power to raise a revenue into a means of excluding foreign competition and creating a captive market for their profit.
After their service as presidents, Jefferson and Madison lived by their republican ethics – they were private citizens with no special right to interfere in public affairs. But they expressed opinions on issues of the day privately to those who asked and who they trusted. When, less than a generation after the “Principles of 1798″ had been proclaimed, the possible nullification of the tariff laws by South Carolina drew attention, Jefferson was gone from the scene. Madison, in contradiction of his own plain language and the circumstances of 1798–1800, claimed that state interposition was not what they had had in mind at that time. Historians who want to trash States’ rights and the South Carolina resistance to the tariff during 1828–1833 lean heavily on Madison’s somewhat vague statements. Self-evidently, Madison contradicted himself, as he did quite often throughout his career. Unlike Jefferson, he was a superficial and inconsistent thinker who often swung from one side to the other. (That is why his pretentious speculations in The Federalist, which, by his own admission, have absolutely no constitutional authority whatsoever, are the favourite text of third string “constitutional lawyers” and would-be “political philosophers.”)
We do not have to wonder what Jefferson in his post-presidential years thought about State interposition. It is not in the least a mystery, although it is something of a secret since “scholars” have assiduously avoided exposure of the relevant documents, which are not easy to find. In 1825, the day after his last Christmas in this earthly realm, Jefferson wrote to William Branch Giles, former Senator from Virginia and stalwart Jeffersonian. He shared Giles’s concerns about the state of federal affairs. “I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of the government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their powers.”
The minority President John Quincy Adams was pushing a large program of federal expenditures and expanded powers. Adams and his Congressional allies, Jefferson said, for an example, had construed the delegated power to establish post roads into a power to cut down mountains and dig canals. The old, evil program of the Northeastern “monarchists” to enrich themselves off the earnings of the agriculturalists was once again in the saddle. Reason and argument were no good in such a situation. “You might as well reason and argue with the marble columns” in the Capitol.
The South might well be forced into a choice between “the dissolution of the Union with them, or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation.” However, not yet. “But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms, to protest them as wrongs to which our present submission shall be considered, not as acknowledgments . . . .”
Jefferson mentioned that he had written a letter to Giles on Christmas about important matters, of which Giles “will be free to make use what you please.” I have not found this letter, but it may have something to do with a document Jefferson wrote out on December 24, which he titled “The Solemn Declaration and Protest of the Citizens of Virginia on the Principles of the Constitution of the United States of America and the Violation of Them.” It seems to have been intended for the use of Jefferson’s neighbours in the grand jury of Albemarle County to begin a program for Virginia once more to interpose, against Congress’s usurpation in its “internal improvements” expenditures.
Just three years after Jefferson wrote this, another Vice-President of the United States, at the request of his State, drafted a “South Carolina Exposition,” which described the illegality and injustice of the protective tariff and the proper remedy for it: State interposition upon “The Principles of 1798.” This “Exposition” was approved and broadcast to the world by the legislature of South Carolina, along with a “Protest.” The usual clamour of rent-seekers and petty political operators was raised, claiming, among other things, that Jefferson had not written the Kentucky Resolutions. In 1831 Jefferson’s son-in-law produced the draft in the great man’s own hand.
[There was so much demagoguery broadcast by the opponents of nullification and the shoddy historians who repeat their propaganda, that it is worth saying something about the roles of Jefferson and Calhoun as drafters of the Kentucky Resolutions and the South Carolina Exposition. Jefferson, as we have noted, did not publicly acknowledge his authorship. Calhoun's authorship of the Exposition was characterised as an evil, secretive political operation. This propaganda is designed by and for people who can think only in terms of politicians and parties instead of principles and are ignorant of the ethics of republican virtue that influenced many Americans before Lincoln. Authorship was not acknowledged because it was desired that the statements be understood as the voice of the people of the State, not mischaracterised as merely the position of a national politician.]
In a later generation, another minority president seemingly destroyed forever the constitutional role of the States by declaring the open, democratic, deliberative acts of fourteen States to be only “combinations” of criminals who refused to obey him. Lincoln made that stick by a brutal war of conquest that did not “preserve the Union” but changed the Union into a central state with no limits to its power. Those who hope to revive a constitutional role for the States as counters to the present U.S. Empire, must hope to make the States once more into self-conscious, viable polities who have the political will to enact nullification and stand by it.
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