Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) by Kevin R. C. Gutzman Page A
Authors: Kevin R. C. Gutzman
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created-by the states for their own purposes. They
had retained all powers not delegated by them to the federal government
through the Constitution. When the federal government undertook to
exceed the bounds of its authority, its acts were "unauthoritative, void,
and of no force."
The states were sovereign and "to this
compact [of the Constitution] each state
acceded as a state, and is an integral party."
Who, then, was to decide when the federal
government adopted unconstitutional policies? Surely not the federal government,
"since that would have made its discretion,
and not the Constitution, the measure of its
powers; but ... 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." When it came right down to it, the
states, which had created the federal government, still bore ultimate
responsibility for ensuring that their monster did not oppress their people.
The Sedition Act, Jefferson said, was objectionable on two constitutional grounds. First, and most important, it violated the Tenth Amendment principle: that powers not expressly delegated to the federal
government through the Constitution were reserved to the states or to the
people. Second, it violated the First Amendment's prohibition on congressional infringement of the rights of free speech and press. It was,
therefore, null and void.
Time to Rebel?
Thomas Jefferson and James Madison said
in 1798 that a state must resist federal
enforcement of an unconstitutional and
dangerous policy.
In Virginia, James Madison drafted the resolutions adopted by the
House of Delegates. He argued that when the federal government persisted in an unconstitutional and dangerous policy, as with the Alien and
Sedition Acts, the states "have the right, and are in duty bound, to interpose" to prevent their enforcement within their "respective" territories.
The two Republican legislatures asked other states to join them in propounding the principles laid out in the Virginia and Kentucky Resolutions.
No other southern state did so (though North Carolina considered it). But
ten states north of Virginia issued their own refutations of the Resolutions.
On what grounds? In general, they argued that the Sedition Act was a
good law that should have been adopted sooner, and that interpreting the
federal Constitution was a task for the federal courts, not for the states.
Kentucky responded in 1799 with a second set of resolutions, these
two conceived by Jefferson. Kentucky's legislature said that Kentucky
loved the Union "for the purposes for which it was created," and insisted
that it would be among the last states to secede. (This was an implied
threat, because while Republican leaders had privately discussed the possibility of secession, only one, Virginia congressman William Branch
Giles, had advocated it in public. So this was the first official mention of
secession in the context of the Alien and Sedition Acts.) But when the
federal government propounded unconstitutional and dangerous laws, it
was the duty of the states to nullify those laws.
James Madison, too, wrote a sequel to his Resolutions. His Report of
1800 did far more than simply defend the Virginia Resolutions of 1798.
It objected to the entire direction of Federalist policy in the 1790s. Madison's most significant argument concerned the use of the word state. Federalists had objected to the idea that the states had created the federal
government. The Philadelphia Convention, Federalist legislatures rightly
noted, was not a state organ, nor were the ratification conventions parts
of the state governments. Clearly, then, the states had not created the federal government.
Madison noted that the word state had three common significations:
it could be used to refer to the territory of a state (as in "I'd like to go to
the state of North Carolina"); it
had retained all powers not delegated by them to the federal government
through the Constitution. When the federal government undertook to
exceed the bounds of its authority, its acts were "unauthoritative, void,
and of no force."
The states were sovereign and "to this
compact [of the Constitution] each state
acceded as a state, and is an integral party."
Who, then, was to decide when the federal
government adopted unconstitutional policies? Surely not the federal government,
"since that would have made its discretion,
and not the Constitution, the measure of its
powers; but ... 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." When it came right down to it, the
states, which had created the federal government, still bore ultimate
responsibility for ensuring that their monster did not oppress their people.
The Sedition Act, Jefferson said, was objectionable on two constitutional grounds. First, and most important, it violated the Tenth Amendment principle: that powers not expressly delegated to the federal
government through the Constitution were reserved to the states or to the
people. Second, it violated the First Amendment's prohibition on congressional infringement of the rights of free speech and press. It was,
therefore, null and void.
Time to Rebel?
Thomas Jefferson and James Madison said
in 1798 that a state must resist federal
enforcement of an unconstitutional and
dangerous policy.
In Virginia, James Madison drafted the resolutions adopted by the
House of Delegates. He argued that when the federal government persisted in an unconstitutional and dangerous policy, as with the Alien and
Sedition Acts, the states "have the right, and are in duty bound, to interpose" to prevent their enforcement within their "respective" territories.
The two Republican legislatures asked other states to join them in propounding the principles laid out in the Virginia and Kentucky Resolutions.
No other southern state did so (though North Carolina considered it). But
ten states north of Virginia issued their own refutations of the Resolutions.
On what grounds? In general, they argued that the Sedition Act was a
good law that should have been adopted sooner, and that interpreting the
federal Constitution was a task for the federal courts, not for the states.
Kentucky responded in 1799 with a second set of resolutions, these
two conceived by Jefferson. Kentucky's legislature said that Kentucky
loved the Union "for the purposes for which it was created," and insisted
that it would be among the last states to secede. (This was an implied
threat, because while Republican leaders had privately discussed the possibility of secession, only one, Virginia congressman William Branch
Giles, had advocated it in public. So this was the first official mention of
secession in the context of the Alien and Sedition Acts.) But when the
federal government propounded unconstitutional and dangerous laws, it
was the duty of the states to nullify those laws.
James Madison, too, wrote a sequel to his Resolutions. His Report of
1800 did far more than simply defend the Virginia Resolutions of 1798.
It objected to the entire direction of Federalist policy in the 1790s. Madison's most significant argument concerned the use of the word state. Federalists had objected to the idea that the states had created the federal
government. The Philadelphia Convention, Federalist legislatures rightly
noted, was not a state organ, nor were the ratification conventions parts
of the state governments. Clearly, then, the states had not created the federal government.
Madison noted that the word state had three common significations:
it could be used to refer to the territory of a state (as in "I'd like to go to
the state of North Carolina"); it
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