Numerous blog sites have been smoking recently with sharp debates over the right of states to nullify federal law. These debates have generated intense heat but very little light. This failure can be partly attributed to the fact that the advocates draw on secondary and tertiary sources, if they draw on any sources at all. In other words, most debates fail to draw directly from the original documents that bear on the question.
With frustration in all this, I decided to “go to the tape.” In this diary I draw from three sets of pre-Civil War documents that are the cornerstones of nullification theory and, further, on The Federalist Papers, to augment the discussion. The three documents are the Virginia and Kentucky Resolutions, written anonymously by James Madison and Thomas Jefferson, respectively, in 1798 and 1799, and South Carolina’s Ordinance of Nullification, which brought to a head the 1832 nullification crisis with the federal government.
The Virginia and Kentucky Resolutions were responses to the notorious Alien and Sedition Acts of 1798 enacted by President John Adams and the Federalists who dominated Congress at the time. The Sedition Act criminalized certain forms of speech, including “untrue” criticism of the President and Congress, and provided for fines and prison terms of up to two years. The Alien Act authorized the deportation, during times of war or the threat of war, of resident aliens who were found by federal courts to be enemies of the United States, whether they had engaged in hostilities or not.
The Sedition Act was clearly an egregious violation of the 1st Amendment. The Alien Act was an engraved invitation to the Federalists to find their political opponents who were not yet citizens, charge them as enemies of the state, try them in front of Federalist judges, and deport them. This, the Federalists proceeded to do.
The Alien and Sedition Acts of 1798 were enacted during one of the most politically contentious times in American history, with the disputes even more bitter than they are today. The new nation and its Constitution were barely a decade old and the unifying leadership of George Washington was now gone. The nation saw itself as surrounded by monarchies conspiring to see it fail. The presidential election of 1796 had revealed a major flaw in the Constitution, with a razor-close election giving John Adams the presidency and his long-time political adversary, Thomas Jefferson, the vice presidency, creating a deeply divided government. Many of the Federalists who had crafted the Constitution at the Convention and won its ratification in all 13 states (a feat we have little appreciation for today) were fading from the scene and being replaced by a new generation who were more partisans seeking power than philosophers steeped in the realities of political power.
Concerns were expressed across the spectrum of opinion that the nation’s experiment with democratic republicanism was in danger.
Jefferson, Madison and their allies in the proto-Democratic-Republican party sought a way to counter the Federalists’ extreme overreach. Their options were few. Seeking redress through the courts was foreclosed because the courts were dominated by Federalist judges. Moreover, the power of judicial review had not yet been established, and the last thing Jefferson and Madison wanted was to endorse the power of Federalist judges with lifetime appointments to determine the constitutionality of federal and state laws. (The power of judicial review was established six years later in the Supreme Court’s decision in Marbury v. Madison, written by the Federalist John Marshall, in which Jefferson and Madison won a bitter Pyrrhic victory.)
So, with those options closed, Jefferson and Madison turned to a theory that the states, in concert, had the right under the Constitution to take unspecified measures in the face of unconstitutional acts by the federal government.
That Jefferson would propose such a theory is not especially surprising. He was in Paris during the Constitutional Convention and the state ratification debates so he was not informed by them. Moreover, Jefferson held a great aversion to a strong federal government, and as he knew, just as all the anti-Federalists who opposed ratification at the Constitutional Convention and in the states knew, the Constitution created a strong federal government. They saw the Alien and Sedition Acts as the fulfillment of their fears.
There’s a lesson here we’ll get to later when we discuss Jefferson and Madison as political philosophers, students of Locke and Montesquieu writing the nation’s founding documents, now transformed into partisan street-fighters looking first to survive and then to dominate the street.
The Virginia Resolution (1798)
Madison’s support for the theory of state sovereignty is more surprising since he was present at the creation of the Constitution, had a major role it its composition, and along with Alexander Hamilton, was its strongest proponent through The Federalist Papers. The language Madison wrote in the Virginia Resolution directly contradicted what he wrote in The Federalist Papers, statements that go to the very principles of the Constitution. These stark contradictions require an examination and, if possible, an explanation.
So, we’ll start with Madison’s Virginia Resolution, which can be found here: http://avalon.law.yale.edu/...
The Resolution is brief, though it seems long thanks to the turgid prose of the period. I’ll focus on two sections:
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… so as to destroy the meaning and effect [of the Constitution]… 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.Two phrases deserve attention in this passage. First, Virginia expresses its “deep regret”. This is not language indicating intent to nullify any federal law. It is moderate language intended to persuade Congress to repeal the acts or, failing that, to persuade other states to express their opposition to the acts. It does not propose any step toward nullification, much less a unilateral one by a single state. Later in this diary, we will see how different this is from the nullification doctrine of the South Carolinians 34 years later.
The second phrase worth attention is “so as to consolidate the states by degrees, into one sovereignty”. This is shocking language to come from the pen of James Madison who propounded in The Federalist Papers the theory that the new nation and its Constitution were creations of Popular Sovereignty, deriving their legitimacy directly from the people, not from the states. He expressly stated this in numerous places in The Federalist Papers. One example is found in The Federalist No. 39, where Madison describes the federal government established by the Constitution as “a government which derives all its power directly and indirectly from the great body of the people.”
The Virginia Resolution’s theory of state sovereignty also contradicts the first 15 words of the Preamble to the Constitution in which the Founders state their intent “to form a more perfect union”. Madison knew the Constitutional Convention was convened because the compact formed by the Articles of Confederation was failing, threatening the survival of the new nation. The Founders did not intend to form a more perfect compact or a more perfect confederation of sovereign states. In fact, their first act was to throw out the old Articles of Confederation and start over. Of course, Madison signed onto the Constitution knowing and sharing this intent.
Now, the second section of the Resolution:
… the General Assembly doth solemnly appeal to the … the other states, in confidence that they will concur with this commonwealth in declaring… that the acts aforesaid, are unconstitutional; 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, referred to the States respectively, or to the people.Here, again, the Resolution calls for the states, in concert, to merely “declare” their opposition to the unconstitutional acts, but it goes one step further by expressing a hope or expectation that the states, together, would pursue some unspecified but “proper” measure to, not nullify the Alien and Sedition Acts, but to maintain their rights, and those of the people, guaranteed by the Bill of Rights. There is no claim that any group of states, even all states combined, has standing to nullify federal law, much less a single state acting unilaterally.
These two sections of the Resolution are embedded in language comprising nearly half the document and bordering on obsequiousness in its deference to the Constitution. Moreover, the word “nullification” never appears in the document. If Madison is calling other states to the barricades, it’s a gentleman’s invitation to other gentlemen who will use reason to turn the tide. It is not a call to arms or anything close to it.
So, how did the other states respond to this polite call from the gentlemen of Virginia? Other than Kentucky, no state supported the Virginians while ten opposed them. Six states sent responses taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures, directly opposing the Virginians. It was a resounding rejection of the modest theory proposed by Madison.
The Kentucky Resolution (1799)
Jefferson’s Kentucky Resolution, written a year after the Virginia Resolution, was a response to both the Alien and Sedition Acts and the resounding rejection of the Virginia Resolution by the other states. The Kentucky Resolution can be found here: http://avalon.law.yale.edu/...
Jefferson’s writing is even more turgid than Madison’s in the Virginia Resolution. Considering the contrast between their prose in these documents and the power of their rhetoric when writing under the own names, one wonders if they were attempting to hide their hands. As we’ll see later, Jefferson, in particular, had good reason to do so.
In the first paragraph, Jefferson acknowledges that the other states have rejected Kentucky’s plea to endorse the theory of state sovereignty and concedes that it would be beating a dead horse to continue trying to persuade them. Jefferson’s second paragraph is telling:
We cannot however but lament, that… our sister states, [have cast] unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument....He has been stung by the breadth and intensity of opposition his theory of state sovereignty has generated. From the fourth paragraph:
[Kentucky] does now unequivocally declare its attachment to the Union, and to that compact [i.e., constitution]… and will be among the last to seek its dissolution…This passage speaks for itself, but immediately, Jefferson does what in the first paragraph he says there’s no point in doing—beating the dead horse. He channels the Jefferson of the Declaration with its indignant recitation of the long train of abuses the colonists suffered at the hands of the Crown, with all its charged rhetoric.
Then he throws down the gauntlet of nullification based on the theory of state sovereignty:
That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedyFollowing all this sound and fury, Jefferson backs off:
… however cheerfully it [Kentucky] may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, … 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... [emphasis mine]But he can’t resist one last rhetorical flourish of righteous indignation:
… yet it [Kentucky] does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact…And Jefferson exits stage right having confirmed, implicitly, Madison’s position that states must act in concert against unconstitutional acts of the federal government through measures unspecified and that they have no standing to act unilaterally. But Jefferson, in his charged rhetoric, has planted the seed of nullification in the fertile soil of the South, which three decades later bears poisonous fruit in the near-insurrection in South Carolina.
The South Carolina Nullification Ordinances
The Nullification Crisis of 1832 developed out of a conflict over tariff policy between South Carolina and the federal government. Tensions were mounting when Andrew Jackson, a southerner, slaveholder and supporter of states' rights, was elected president in 1828. Since Jackson was from the South, South Carolina and the other southern states expected him to reduce tariffs significantly and, in fact, he moved quickly to defuse the conflict through negotiations. The compromise Jackson struck, embodied in the Tariff of 1832, won the support of most northerners and half of the southerners in Congress.
But the South Carolinians were not satisfied. The most radical faction in the state immediately called for nullification of the tariff and soon enacted the 1832 Ordinance of Nullification, which declared the federal tariffs of 1832 to be unconstitutional and therefore null and void in the sovereign state of South Carolina. Then the state began military preparations to resist the federal enforcement action they thought might follow.
Many expected the pro-States Rights Jackson to side with the South Carolinians on the tariff, but once they threatened nullification and began talking of secession, Jackson took a hard line and never wavered. On the occasion of a visitor from South Carolina asking if Jackson had any message he wanted relayed to his friends back in the state, Jackson said,
Yes I have; please give my compliments to my friends in your State and say to them, that if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.Later, upon hearing rumors of efforts to subvert military forces in Charleston, Jackson directed the army and navy to rotate troops based on their loyalty, and he ordered the national army to prepare for military operations and a naval squadron in Norfolk to prepare to sail to Charleston.
As 1832 closed, Jackson issued a Proclamation to the People of South Carolina
in which he described his views on the doctrine of nullification:
I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.Seeking to resolve the crisis, Congress offered South Carolina a carrot in the form of a tariff reduction while handing Jackson a stick: authority to use military force against the nullifiers. South Carolina soon repealed its Nullification Ordinance although more than a decade later radicals were still calling for nullification unless the tariff was removed entirely.
The South Carolinians claimed victory despite having made concessions. But the United States had prevailed on the question of nullification. And as in 1799, the doctrine of nullification drew strong criticism, even in southern states. The Alabama legislature denounced nullification as “unsound in theory and dangerous in practice.” Georgia called it “mischievous,” “rash and revolutionary”, while Mississippi criticized the nullifiers for acting with “reckless precipitancy.”
After the crisis passed, Jackson presciently wrote,
...the tariff was only a pretext, and disunion and southern confederacy the real object. The next pretext will be the negro, or slavery question.In South Carolina, there were grave misgivings about backing down on nullification. Many believed it boded ill for the South and the preservation of slavery. Robert Rhett, one of the state's most vehement opponents of the tariff and soon to be one of its most radical proponents of succession, expressed these reservations, warning that,
A people, owning slaves, are mad, or worse than mad, who do not hold their destinies in their own hands... Every stride of this [federal] Government, over your rights, brings it nearer and nearer to your peculiar policy [slavery].For all appearances, South Carolina took Rhett’s warning to heart. Over the next 30 years, the state's leadership undertook a concerted campaign to indoctrinate its citizens on state sovereignty, nullification, and the threat posed by the federal government, laying the groundwork for secession. And in 1860, when South Carolina became the first state to secede, it was more united and better prepared than any other southern state.
Jefferson's rhetoric in the Kentucky Resolution was a call for the states, in concert, to nullify unconstitutional acts, without suggesting any measures to effectuate nullification. Moreover, it was anchored in a pledge of loyal to the nation and the Constitution. Thirty years later, the doctrine of nullification had morphed into something far more dangerous.
Nevertheless, the seed Jefferson planted in 1799 had grown into the vines of nullification, secession, and states' rights, wrapping around the tree of liberty, first in South Carolina then spreading across the South on fears the federal government would abolish slavery. By the 1850s, the states' rights doctrine and the practice of slavery were making its way into the western territories and even the North through the Kansas-Nebraska Act, the Fugitive Slave Act, and the Supreme Court's Dred Scott decision.
As slavery was dying out in most of the world, in the world's great experiment of republican democracy, slavery was rapidly spreading.
Understanding Madison’s Turnabout
As I said earlier, Jefferson’s attachment to the theory of state sovereignty is not surprising considering his skepticism toward the Constitution and his opposition to the strong federal government it created. In fact, Madison, his closest political ally through much of his career, did yeoman’s duty in restraining Jefferson’s most anti-Constitution rhetoric. But as Jefferson aged, and especially near the end of his life, his position hardened on nullification, writing privately that the time might come when the southern states would have no choice but to use nullification against the growing power of the federal government or even dissolve the Union.
Understanding Madison’s position on the theory of state sovereignty is more complex. First and foremost, Madison never endorsed the doctrine of nullification, and during the nullification crisis of the 1830s, he denounced the concept of as unconstitutional:
But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.How might we explain Madison’s transformation from writing in The Federalist Papers that the Constitution and the strong federal government it created were products of Popular Sovereignty to, only ten years later, writing in the Virginia Resolution that the Constitution was based on state sovereignty and the federal government was subservient to the states?
Certainly, one possibility is that he changed his mind. But another is that by 1798 Madison and Jefferson were embroiled in a fight with the Federalists that both sides saw as a struggle over the future for the nation they had risked everything to bring into being.
Jefferson was a brilliant political strategist and he knew how to play to an audience. When he wrote the Kentucky Resolution in late 1799 he was vice president and was set on winning the next year the presidency he came so close to claiming in 1796. He knew the 1800 election would be a very close, and indeed it was. Jefferson finally prevailed after 36 ballots by the Electoral College.
The Virginia and Kentucky Resolutions were an attempt to rally the states to oppose, and in the case of Kentucky, to nullify the Alien and Sedition Acts. In that, they failed. But the Resolutions served a second purpose: to mobilize the anti-Federalists for the upcoming election. However, Jefferson and Madison could not write the Resolutions under their own names. Why? Because as Jefferson's biographer Dumas Malone said, had his actions become known at the time, Jefferson might have been impeached for treason. That would be no way to enter an election season.
So Madison wrote the moderate Virginia Resolution, then a year later Jefferson proposed nullification when he could maximize its political effect while minimizing the risk to himself and his ambitions. And, further, he wrote it anonymously to maintain deniability. Jefferson did not invent the concept of nullification; it was in the air by 1798, feeding the fire of resistance by anti-Federalists. Jefferson was a master of the inside game as well, as he demonstrated in Paris and as Secretary of State.
With the options for resistance through any of the three branches of government apparently foreclosed, Madison’s resort to the theory of state sovereignty and Jefferson’s to nullification represented a profound lack of faith in the very system they revered: a democratic republic in the hands of the people. Less than a year after Jefferson planted the seemingly eradicable seed of nullification in American soil, he and his party captured the presidency and swept the Federalists from power in one of the most decisive and consequential elections in American history. Thereafter, the Alien and Sedition Acts went unenforced and soon expired, and Jefferson, Madison and their protégé James Madison would hold the presidency for the next 24 years.
There were several ironies, some would say marked inconsistencies, in Jefferson’s career. One, of course, is his high language in the Declaration regarding the equality of all men while holding men in bondage throughout his life and, after death, leaving them to be sold as part of his estate or passed as property to his family. For many years before his death, Jefferson expressed a hope, even an expectation that slavery would die out in the South as it had in the North and much of the rest of the world. But he proposed no means by which this would occur, and he took no action to encourage it on its way to oblivion.
Instead, Jefferson left the country with the doctrines of nullification and states’ rights that over the next 60 years became the South’s justification for repeated threats to dissolve the Union and ultimately led to the Civil War--all to preserve the institution of slavery on which their personal wealth, their economy and their culture depended.
Another irony is found in the fact that the anti-Federalists, whom Jefferson would later join, opposed ratification on the grounds that the Constitution created a strong federal government whose laws were the supreme law of the land, and that the federal government would come to threaten the liberties of the people and the powers of the states. The anti-Federalists ultimately lost their ratification fights in all thirteen states but won a Bill of Rights addressing their concerns. Only one of those first ten Amendments addresses the power of the states, and it has been rewritten by states’ rights proponents to say that all powers not expressly delegated by the Constitution to the federal government are reserved to the states.
In fact, the word “expressly” does not appear in the 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.Indeed, the “expressly delegated” construction is contradicted in the Constitution by the Necessary and Proper Clause of Article One, which grants the federal government broad but not unlimited authority to carry out the powers delegated to it by the people through the Constitution. Furthermore, in one of the earliest and most significant cases decided by the Supreme Court, McCulloch v. Maryland, the Court held that federal laws need not be "absolutely necessary" to be necessary and proper and that, most importantly, the Necessary and Proper Clause was “among the powers of Congress, not among the limitations on those powers."
So, the irony is found in the fact that states’ rights proponents of the 1800s, like those of today, claimed then and claim now that the Constitution created a federal government subservient to the sovereign states. They now claim that the federal government derives its authority and legitimacy from the states when their **STATES'** rights forebears of the 1780s, in opposing ratification, took the opposite position, that the Constitution created too strong of a federal government, and lost that fight in all thirteen states.
But the greatest affront to the principles of the Constitution is the states’ rights proponents’ claim that the states are sovereigns when, instead, the foundation of the Constitution rests on the sovereignty of the people who created and sustain both the states and the federal government and who conferred on them their powers through the Constitution. This was the clear intent of the Founders, including Madison. And it was subsequently confirmed by Abraham Lincoln in his vision of the relationship between the people and the Union and by the force of arms he brought to bear on the states’ rights insurrectionists who tested the doctrine of nullification by bringing the nation to war.
So, in the nation’s first 70 years, we see three great battles over the question of the power of states versus those of the federal government. In the first, the advocates of a strong federal government prevailed at the Constitutional Convention and at the ratification conventions in all thirteen states. In the second, the South Carolinians’ attempt to nullify federal law was crushed by Jackson’s offer to bring federal troops into the state and hang the nullifiers. And in the third, after four years of slaughter, Lincoln defeated the states’ rights insurrectionists, abolishing the institution of slavery and ending the South’s ability to hold the nation hostage with its threats of nullification and disunion.
Despite this history of futility for the cause of states’ rights and the weakness of its claims to the 10th Amendment, present day nullifiers, secessionists, and states’ rights proponents continue to press their theory of state sovereignty and seek legitimacy in the words of the Founders. Most have given up on Madison, dismissing him as superficial and irresolute. Instead, they fix their claim on Jefferson and his tepid (and anonymous) endorsement of nullification in the Kentucky Resolution.
In doing so, they are unaware, or willfully ignore, that Jefferson did not advocate any act of nullification and suggested nullification only in the context of joint efforts by the states, not action by a single state. And they are blind to Jefferson’s pledge of loyalty to the Constitution in his assurance that Kentucky
unequivocally declare[s] its attachment to the Union, and to that compact [the Constitution]… and will be among the last to seek its dissolution… [T]his commonwealth as a party to the federal compact; will bow to the laws of the Union.So the roots of today’s states’ rights and nullification doctrines lie not with the Founders but with the South Carolinians who brought about the nullification crisis of the early 1830s and 30 years later launched the Civil War by bombing Fort Sumter. Their forebears are the Southern fire-eaters and irreconcilables who over 30 years relentlessly drove the nation to war with itself.
What have they learned?
More importantly, what have WE learned, about them, their rewriting of our Constitution and our history, and the cost our nation has borne for their theory?