The Kentucky Resolutions and a More Perfect Union

by William Matthew McCarter

In September of 1787, the United States Constitution was adopted by the delegates to the Constitutional Convention in Philadelphia, Pennsylvania.  Legend has it that at the close of the Constitutional Convention, an interested party asked Benjamin Franklin, “Well, Doctor, what have we got – a Republic or a Monarchy?”  Benjamin Franklin replied, “A Republic if you can keep it.”[1] Franklin will never know how ominous his reply was because he died in 1790.  However, during the decade after the adoption of the Constitution, America’s first generation of statesmen grappled with the task of implementing the Constitution that they had just adopted.  The struggles that these early statesmen faced remind the modern reader of Mario Cuomo’s famous phrase: “You campaign in poetry but govern in prose” and there was no greater a struggle in these early years as the struggle between the poetry of personal liberty and the prose of governing this fledgling nation.  In these early years, the Alien and Sedition Acts passed by the Federalists during the Adams administration would certainly qualify as prose.  At first glance, one might consider The Kentucky Resolutions to be the poetry that stood opposed to that prose.  However, The Kentucky Resolutions and the social, cultural, and historical context out of which they emerged could also point to something that we Americans might not want to think about – that our Constitution might be flawed in that it rests on the central government having absolute power and as Lord Acton reminds us, “absolute power corrupts absolutely.”

In contemporary American Literature, American Government, and American History textbooks, The Declaration of Independence, The Constitution, and some of The Federalist Papers are often printed in their entirety for students of American history and culture.  In addition, very few of these textbooks even mention one divergent view when it comes to these almost “sacred” American texts.  In his best known political work, Congressional Government, Woodrow Wilson called into question America’s “almost blind worship” of the principles of the Constitution.[2]  Perhaps that is why The Kentucky Resolutions are absent from the canon of America’s “sacred” political texts.  At a time when the notion of the strong central government of our leviathan Federalism goes virtually unchallenged, introducing a text that marks the path of limited government would be inconveniently messy.  However, as America’s federal government seems to becoming increasingly divided and politicized, perhaps it is time for Americans to look at The Kentucky Resolutions and embrace the Principles of ’98 as a clarion call to find innovative ways to decentralize government so that it is more manageable and responsive to the needs of its citizens.

Exigence and Constraints

According to Lloyd Bitzer, discourse comes into existence as a response to a given situation.  Just as an answer follows a question or a solution follows a problem, discourse follows a given rhetorical situation.  Essentially, the rhetorical situation must exist as a necessary condition that precedes discourse and discourse is rhetorical discourse according to how it functions as a response to the rhetorical situation that made the utterance possible.  In addition, the utterance itself is limited by the rhetorical situation.  The situation controls the response in much the same way that a question controls the answer to the question.  For Bitzer, the rhetorical situation can be defined as: A complex of persons, events, objects, and relations presenting an actual or potential exigence which can be completely or partially removed if discourse, introduced into the situation, can so constrain human decision or action as to              bring about the significant modification of the exigence.[3]

Bitzer goes on to add that “prior to the creation and presentation of the discourse, there are three constituents of any rhetorical situation.” Bitzer calls these three constituents “exigence,” “the audience to be constrained,” and the “constraints which influence the rhetor and can be brought to bear upon the audience.”[4]  “Exigence” is defined as being “an imperfection marked by urgency; it is a defect, an obstacle, something wanting to be done, a thing which is other than it should be.”[5] Exigence is, simply put, something that happens which merits a discursive response.

While one could claim that the exigence of The Kentucky Resolutions was The Alien and Sedition Acts passed by the Federalists during the Adams administration, the grass roots resistance to the federal government – what Bitzer would call the “constraints which influence the rhetor and can be brought to bear upon the audience” – was building up long before The Alien and Sedition Acts.  Prior to The Alien and Sedition Acts, the Federalists under President George Washington’s administration, passed The Whiskey Excise Act more commonly known as the “Whiskey Act” in March of 1791.[6]  One of the limitations of The Articles of Confederation was that the central government could borrow money but was unable to adequately raise funds to pay its own debts.  The newly ratified Constitution enabled the federal government to raise revenues through means previously unavailable.  Alexander Hamilton, the first Secretary of Treasury under this newly formed government, in his Report on Public Credit, urged Congress to consolidate the state and federal debt and Congress approved of Hamilton’s measures in the summer of 1790.[7] Once the government bonds were issued, the government needed money to pay off the bonds when they came due.  Import duties (tariffs) were the government’s primary means of taxation.  However, Hamilton argued that these duties were approaching their limits and that revenue must be generated another way.[8] Because of this, Hamilton argued for a tax on distilled spirits.  This was the first tax that the government placed on a domestic product.[9]

The farmers along the frontier in Western Pennsylvania and in Kentucky resented this new tax. They argued that the tax targeted them unfairly.  Because they lived so far out on the frontier, it was easier to transport whiskey than it was grain.  Whiskey was essentially a “cash crop” for the farmers who operated small stills.  In addition, because the money supply wasn’t as fluid on the frontier as it was along the coast, whiskey was a medium of exchange in some communities.  Therefore, not only did the whiskey tax make those farmers out on the frontier less competitive than those on the coast, but the tax also functioned as a kind of income tax on those who used whiskey as a medium of exchange.[10]

The historian Howard Zinn explains that, “In 1784 the farmers of Western Pennsylvania took up arms and rebelled against the collection of [the Whiskey Tax].  Secretary of Treasury Hamilton led the troops to put them down.  We see then, in the first year of the Constitution, that some of its provisions—even those paraded most flamboyantly (like the 1st Amendment) –might be treated lightly.  Others (like the power to tax) would be powerfully enforced.”[11]  Zinn talks about the Whiskey Rebellion in terms of Western Pennsylvania, where the tax provoked what the government perceived as an overt rebellion.  However, in Kentucky, the rebellion was more covert.  Mary Taschau writes, “there are so few documents by the perpetrators-and no official acknowledgements of their law-breaking by the government—that the entire movement has been overlooked by historians.”[12]

Whiskey was the only product that could be sold outside of the Kentucky community for a profit.  His was due, in part, because, in terms of weight and volume, whiskey had the greatest worth of any of its potential exports.  From the standpoint of the Kentuckians, in the taxing of whiskey, the federal government was placing a heavy burden on the taxpayers and was doing very little or nothing in return.  Taschau writes, “What Kentucky needed then was protection from the Indians and cooperation from Spain.”[13]  But the government was of little help with either and the people of Kentucky decided that they would not support a government that did not support them.  Colonel Thomas Marshall, the chief revenue officer for Kentucky complained about “the spirit of opposition to the laws so visibly prevalent among the People.”[14]

Taschau goes on to write “As time went on, the generally passive nature of the resistance gave way to sporadic acts of violence.  Distillers stole collectors’ records, attacked them in their sleep, threatened those who tried to inspect their stills, docked their horses’ tails, and in at least one instance tarred a collector and rolled him in leaves” but what really bothered the government, more than non-compliance or violence against “revenuers” were “reports that prominent Kentucky leaders were preparing to take matters in their own hands and secede from the Union, or seize for themselves what the government had not secured from Spain—free navigation of the Mississippi River.”[15]  In May of 1794, nearly four years before Jefferson’s Kentucky Resolutions, at a mass meeting in Lexington, “the crowd proceeded to adopt thirteen resolutions, one of which stated that civil liberty is prostituted, when the servants of the people, are suffered to tell their masters, that communication which they may judge important ought not to be entrusted to them.”[16]

While the Whiskey Rebellion may have been one of the “constraints which influence the rhetor and can be brought to bear upon the audience,” the exigence that led to Thomas Jefferson writing The Kentucky Resolutions was The Alien and Sedition Acts.  Under the Alien and Sedition Acts, the U.S. government orchestrated the worst restrictions on liberty in the history of the United States.  The Sedition Act basically made false or scandalous statements about the government, Congress or the President illegal and cause for prosecution.  Essentially, what the Alien and Sedition Acts hoped to do in theory—unite the colonists into one governing authority—was what the Federalists had already failed to do in practice.  According to James Morton Smith, President John Adams’ call for political unanimity underscored his earlier pronouncement that the French Directory had displayed ‘a disposition to separate the people of the United States from the Government; to persuade them that they had difficult affections, principles, and interests, from those of their fellow citizens, whom they themselves have chosen to manage their common                       concern; and thus to produce divisions fatal  to our peace.[17]

Some twenty years after he wrote the Kentucky Resolutions, Thomas Jefferson claimed authorship. It is important to note that perhaps the reason that Jefferson didn’t claim authorship at the time The Kentucky Resolutions were written is because he was Vice President of the United States at the time and this act could have been considered treasonous (especially considering the text of The Alien and Sedition Acts).  While some see the Kentucky Resolutions as a part of Jefferson’s political writings, Smith suggests that “no one has investigated in great detail the grass roots origins of the protest movement against the Alien and Sedition laws in Kentucky.”[18]  Smith goes on to illustrate that those living in Kentucky, blasted the act as unconstitutional, unjust, and impolitic, charging that it proceeded from ”a local dishonest policy in the Eastern states who voted for it—to prevent the growth of [new] states and [the] Western Country and keep the balance of power in their hands.”[19]  Finally, he confessed his fear that a settled design existed “to destroy our republican government.”  Smith goes on to add, “Unlike eastern America, where liberty seems at this time to be really expiring,” Kentucky was still free.[20]

While the context of The Kentucky Resolutions can best be understood through using Lloyd Bitzer’s ideas of constraints and exigence, The Alien and Sedition Acts also require context and thus merit an explanation of exigence as well.  It is difficult to imagine how France’s relationship with the United States had deteriorated after the Revolution.  After all, George Washington did say that he would regard Lafayette as a “friend and a father” and after the Revolution, the states of Virginia, Connecticut and Massachusetts granted “honorary citizenship” to Lafayette and his heirs.[21][22]  However, Ralph Ketcham reminds us that although the French helped the United States in the war against Great Britain, the French would never give up its own imperial ambitions.[23] When France began its own revolution, some Americans became enthusiastic about the regime change in France.  As a result of these geopolitical changes in Europe, factions emerged in America by the 1790’s.  The pro-French camp was led by Thomas Jefferson and the Republicans and was located primarily in the South.  In contrast, the pro-British camp was led by Alexander Hamilton and the Federalists and was located primarily in the North.

War and the march to war can usually be attributed to an economic base and the “cold war” with France in the 1790’s was no exception to that maxim.  Alexander Hamilton’s financial system was largely dependent upon tariffs on imported British goods.  If these commercial interests were disrupted, America’s system of credit would crumble.  However, many of the Southern elites were deeply indebted to the British and favored the French because of their indebtedness.  These Republicans objected to Hamilton’s policies as the Treasury Secretary, seeing them as being a way to make the wealthy vassals of the federal government and undermine the power of the states.[24]  Two of the United States diplomatic moves created a larger rift between the United States and France as well as the Federalists and the Republicans.  President Washington’s Neutrality Proclamation of 1793 and The Neutrality Act of 1794 created animosity with France because they were at war with Great Britain.  While neutrality was probably the best course of action for the fledgling nation (because it could hardly defend itself much less get into a transcontinental war between Britain and France), the Republicans sympathized with the French and believed that the United States had an obligation to help them in their revolution.[25] The ratification of the Jay Treaty in 1795 really hardened relations between the United States and France and between the Federalists and the Republicans.

 

The United States was not the only nation to have diplomatic mishaps that contributed to the “cold war” between the United States and France during the 1790’s.  After the Jay Treaty was ratified, the French government began the practice of seizing American ships and within the year, France had either captured or destroyed more than three hundred American ships resulting in an undeclared naval war between the United States and France.  As a result, President Adams sent John Marshall, Elbridge Gerry, and Charles Cotesworth Pinckney to Paris as emissaries from the United States hoping that they could negotiate a peaceful settlement to the hostilities between the two nations.  Three French agents (known only as X, Y, and Z), claiming to be acting on behalf of the French Foreign Minister, Charles Maurice de Tallyrand, demanded a bribe, a ten million dollar loan from the United States, and a formal apology from President Adams.  When word got out to the American people, they proclaimed, “millions for defense, sir, but not one cent for tribute.”[26]  The XYZ Affair provided the Adams administration with the pretext to raise taxes, borrow millions of dollars, create a standing army, and pass what has come to be known as The Alien and Sedition Acts.[27]

The Alien and Sedition Acts is the term used to describe four separate bills passed by the Congress in 1798 during the “cold war” with France.  The Alien and Sedition Acts consist of: 1.) The Naturalization Act which extended the residency requirements for aliens to become citizens from five to fourteen years.  2.) The Alien Act which authorized the President to deport any resident alien that the President thought was “dangerous to the peace and safety of the United States.” 3.) The Alien Enemies Act which authorized the President to deport any resident alien whose home country was at war with the United States and 4.) The Sedition Act which made it a crime to publish “false, scandalous, and malicious writing” against the government.[28] Passing the acts was enough to garner the ire of the Republicans, however, when the Federalists acted on the laws in an obviously partisan manor, it drove an implacable wedge between the Federalists and the Republicans and between Adams and Jefferson.

In many ways, one could see the factions that emerged from this first test of America’s Constitutional government as a “clash of the titans” of the American Revolution.  While having Federalists John Adams and Alexander Hamilton on one side and Republicans Thomas Jefferson and James Madison on the other would have been enough of a “clash” among the Founding Fathers of the United States of America, even Benjamin Franklin’s grandson, Benjamin Bache couldn’t stay out of the fray.  Bache was the publisher of the pro-Republican newspaper, The Aurora.  He claimed that the paper “will always be open, for the discussion of political, or any other interesting subjects, to such as deliver their sentiments with temper and decency, and whose motives appears to be, the public good.”[29] Bache routinely cited Republican talking points, claiming that the federal government had fallen into the hands of aristocrats who were doing the bidding of the British and neglected the interests of its constituents.  Bache wasn’t so much interested in the form that the federal government took as he was in the policies of the Federalists who ran the government.[30]  Bache was arrested two weeks prior to the passage of the Sedition Acts despite the prohibition of ex post facto laws in Article I, Section 9 of the United States Constitution.[31] After posting bail, Bache spent much of his time crying foul, claiming that the Sedition Act was in violation of the First Amendment right to Freedom of Speech.[32] However, this did not stop the Federalists from charging the Boston Independent Chronicle, the New York Argus, the Richmond Examiner, and the Baltimore American with violations of the Sedition Act as well.[33]

Perhaps the most famous case tried under the Sedition Acts and, arguably, the most partisan case as well was the trial of Thomas Cooper.  On October 26, 1799, Cooper published an attack against the Federalists in the Reading, Pennsylvania Advertiser. Cooper complained of the standing army and cumbersome navy, of the millions of dollars that the federal government had borrowed, and of Adams actions that “might justly have provoked war” with France.  Cooper went so far as to say that Adams exercised “a stretch of authority which the Monarch of Great Britain would have shrunk from.”  After being arrested for violating the Sedition Act, Cooper pled not guilty and used the fact that he was telling the truth as a defense.  During the trial, Cooper claimed that he knew that the king of England could do no wrong, but “did not know till now that the President of the United States had the same attribute.”[34] Samuel Chase, the judge in the case, was a devout Federalist.  He exhibited such partisan behavior on behalf of his Federalist faction that he was later impeached by the Republicans when they gained power after Jefferson’s election in 1800.  Chase was acquitted of the charges but remains the only Supreme Court justice to have been impeached by Congress.[35]

The Kentucky Resolutions

In the fall of 1798, Thomas Jefferson began working on The Kentucky Resolutions.  In 1791, Jefferson called The Tenth 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”[36] – “the foundation of the Constitution.”[37]  Because of this, it seems natural that he would begin with the Tenth Amendment.  Just as Jefferson laid out the grievances of the colonies in the Declaration of Independence, he lays out the grievances (or what he imagines should be the grievances) of the states in The Kentucky Resolutions.  Jefferson begins by claiming that the states were not “united on the principles of unlimited submission to their general government” and that the states had only “delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government.”[38]

Jefferson comes to the conclusion that “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”[39] He goes on to add 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.”[40]  For Jefferson, the people acting through the state governments were the final arbiters of the meaning of the Constitution.  Jefferson writes; “as in all other cases of compact among powers 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.”[41]  Jefferson was concerned that if the federal government had the exclusive right to interpret the Constitution, it would lead to a leviathan state not that much different than the British Crown.

Not only does Jefferson remind his readers that the powers not explicitly granted to the federal government are reserved for the states, but he also reminds the readers of what is specifically within the purview of the federal government when he writes that “the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations and no other crimes.”[42] After defining what is within the purview of the federal government, Jefferson claims that the Alien and Sedition Acts “assume to create, define, or punish crimes, other than those so enumerated in the Constitution.”[43] Because these acts are beyond the purview of the federal government, Jefferson claims them to be “altogether void, and of no force” because the “power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.”[44]

It is important to point out that by this time each of the states had laws on the books to punish libelous speech (and for any state that didn’t, the commentaries of Blackstone and Coke would suffice for prosecution in the state courts) and that the Sedition Acts were substantially similar to these laws (how else could Thomas Cooper use “the truth” as a defense).  While one could argue that Jefferson didn’t need to go any further than to claim that the Alien and Sedition Acts were beyond the purview of the federal government and violated the Tenth Amendment to the Constitution, Jefferson also saw the Alien and Sedition Acts as a violation of the First Amendment as well.  However, Jefferson differed from Benjamin Bache in his interpretation of the First Amendment.  For Bache, the Alien and Sedition Acts were clearly violations of the individual right to free speech.  However, for Jefferson, the First Amendment was only a restraint upon the federal government and that the states could decide for themselves “the right of judging how far the licentiousness of speech” could go.[45] Essentially, the states could decide for themselves what their libel laws should entail and that libel was beyond the purview of the federal government.

Jefferson addressed the “alien” part of the Alien and Sedition Acts in the remainder of The Kentucky Resolutions.  In this part of his Kentucky Resolutions, Jefferson seems to be moving from making a philosophical argument about the Constitution into a more “gotcha” political argument.  He claims that resident aliens are “under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens.”[46] Jefferson cites Article I, Section 9 of the Constitution – “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808” – as he makes this argument.[47]  This section of the Constitution is interesting because it was written for the purpose of prohibiting the states from importing more slaves after 1808.  Jefferson’s application of this clause to resident aliens takes the clause out of context.  Clearly, Jefferson is not reading the Constitution with the Framers in mind here.  In fact, generally, we can say that when it comes to limiting federal power, Jefferson reads those Constitutional provisions very liberally.  However, when it comes to the clauses that grant power to the federal government, Jefferson tends to see them in a very conservative way.  This is evidence of a politicized view of Constitutional interpretation.

Jefferson makes his strongest argument against the “alien” part of the Alien and Sedition Acts when he ties the acts to the due process provisions in the Fifth Amendment.  Because the Alien and Sedition Acts: authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force.[48]

In addition, Jefferson claims that “transferring power of judging any person, who is under the protection of the laws from the courts, to the President of the United States, as is undertaken by the same act concerning aliens” is unconstitutional because the Constitution calls for “the judicial power of the United States” to be “vested in the courts, the judges of which shall hold their offices during good behavior.”[49]  According to Jefferson, the “transfer of judiciary power” to the “magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers” negates the separation of powers provision in the Constitution.[50]

Jefferson compels Americans to “reclaim the constitutional rights and liberties of the States and people” lest the federal government “drive these States into revolution and blood” as it furnishes “new calamities against republican government” and “new pretexts” for those who believe that “man cannot be governed but by a rod of iron.”[51] For Jefferson, “free government is founded in jealousy, and not in confidence” because it is “jealousy and not confidence which prescribes limited constitutions” to bind those who “we are obliged to trust with power.”[52] Jefferson called on America’s state governments to join him in this endeavor.  In addition to the Kentucky Resolutions, Jefferson and James Madison authored the Virginia Resolution to accompany Kentucky’s indictment of the Alien and Sedition Acts.  Both Jefferson and Madison believed that the other states would join them in this action.  None did.

The Whiskey Rebellion in Kentucky laid the groundwork for the grass roots support for the Kentucky Resolutions.  However, the Alien and Sedition Acts were the catalyst that led to The Kentucky Resolutions.  Specifically, The Alien and Sedition Acts violated the First Amendment, the Fifth Amendment, and the Tenth Amendment.  However, the larger implications of the Acts—the increased centralization of government authority- is what really bothered the people of Kentucky.  While the Kentucky and Virginia Resolutions didn’t get any traction with the other state governments and most of the provisions in the Alien and Sedition Acts expired in 1800 anyway, the Republicans used this as a rallying cry in the 1800 elections and swept the Federalists out of office.  Jefferson became the first candidate to beat an incumbent President in an election and America saw the power of the federal government change hands peacefully for the first time in the history of this young Republic.  While it would seem that the Constitution must work because the entire country was divided up into factions and yet managed to weather this first Constitutional challenge, the Kentucky and Virginia Resolutions did introduce the country to new political theories that would dominate the political discourse of the 19th century – judicial review, nullification, interposition, and secession.

The Legacy of the Kentucky Resolutions

While one might think that the first cases of interposition and nullification in the 19th century would have come from the American South, they did not.  The American republic’s first encounter with nullification in the 19th century came from New England.  In an effort to put pressure on both Britain and France during the Napoleonic War, the Republican Congress passed The Embargo Act in 1807 restricting foreign trade.  The act had little effect on the British and the French and did little to improve diplomatic relations, however, the Embargo Act hurt America economically and a disproportionate amount of that economic pain was in the North.  As a result, the Massachusetts legislature passed a resolution claiming that “in the opinion of the legislature,” the Embargo Act was “unjust, oppressive and unconstitutional, and not legally binding on the citizens of the state.”[53]  However, the Massachusetts resolution differed from The Kentucky Resolutions in that The Kentucky Resolutions claimed that the states could (and did) nullify a federal law.  Instead, the Massachusetts resolution claimed that ‘the judicial courts are competent to decide this question, and to them every citizen, when aggrieved, ought to apply for redress.”[54]  Massachusetts asked Congress to repeal the act and was joined in this effort by Connecticut.  In 1808, the federal courts ruled that the law was constitutional, however, Congress repealed the act in 1809 because it didn’t put the necessary economic pressure on Britain and France and was seen as being largely ineffective.  Because neither state pursued the case in the courts, the theory of nullification didn’t make it to the courts so there was still no legal test for this theory.

However, the legal test for the theory of nullification did come in 1809 in another case.  In 1809, the Supreme Court ruled against the State of Pennsylvania in the case of United States v. Peters.[55]  The Pennsylvania legislature had passed an act nullifying the decision of a federal court.  This statute claimed that the federal court had acted unconstitutionally because it lacked jurisdiction and the judgment was rendered “null and void.” The Supreme Court rejected the Pennsylvania legislature’s claim that it had the power to nullify an order from the federal courts and issued this opinion:

If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments,  the Constitution itself becomes a mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals.[56]

In response, the legislature of Pennsylvania passed a resolution declaring that the Supreme Court decision was unconstitutional and made a states’ rights argument to support its position.[57]  Like Jefferson with the Kentucky Resolutions and Madison with the Virginia Resolutions, Pennsylvania appealed to the other states for support.  Eleven states disapproved of Pennsylvania’s states’ rights argument.  None of the states supported this attempted nullification and Pennsylvania was unsuccessful in its appeal.[58]

While one would think that the legal test in the Supreme Court would negate any future talk about the theory of nullification that was not the case.  When Congress authorized the Second Bank of the United States, both Maryland and Ohio tried to tax the bank in order to obstruct its operations.  Two cases made it to the Supreme Court: McCulloch v. Maryland and Osborn v The Bank of the United States.  In McCulloch v. Maryland, the state government argued that since the Constitution didn’t specifically say that the federal government could charter banks, the act was beyond the purview of the federal government and therefore unconstitutional.  The court ruled that the “necessary and proper clause” in the Constitution gave the federal government the power to charter the bank.  It is also important to note that Justice Marshall claimed that it was the people that ratified the Constitution and not the states.  Therefore, the people are sovereign and not the states.  This was an important distinction that undermined the states’ rights arguments in The Kentucky and Virginia Resolutions.[59]  The State of Ohio relied on The Kentucky and Virginia Resolutions in its case before the court.  The Supreme Court reaffirmed its decision in McCulloch v. Maryland in Osborn v. The Bank of the United States claiming that: “The act of the State of Ohio, which is certainly more objectionable than that of the State of Maryland, is repugnant to a law of the United States, made in pursuant of the Constitution, and therefore void.”[60]

Perhaps the most famous historical moment involving the theory of nullification was the Nullification Crisis during the Jackson administration.  In the wake of the War of 1812, the United States government wanted to make American manufacturing more competitive than that of the British.[61]  This made sense at the time because Americans had just finished fighting a war with the British.  However, these tariffs disproportionately benefitted the Northern states and politicians in states like South Carolina thought that these tariffs had subsidized Northern industry long enough.  John C. Calhoun, of South Carolina, had favored the 1816 tariff but opposed the new tariff of 1824.  When John Quincy Adams signed the new tariff into law, he also began sowing the seeds of the coming nullification crisis.  Calhoun and the Southerners saw one of their own – Andrew Jackson of Tennessee – elected to the office of President in 1828 and must have imagined that Jackson, being a Southerner, would take some action on this sectional tariff.  However, Jackson did not address any of the concerns upon assuming the office and a schism began to occur between Jackson and his Vice President, John Calhoun of South Carolina.[62]

Instead of reducing the tariff in 1828, they raised it.  This tariff became known as the “Tariff of Abominations” to its detractors.  This tariff marked the high point of tariffs in the United States.  Finally, the Congress addressed the tariff issue in 1832 and sought to provide some relief for the tariff of 1828 but it was seen as too little by many of its detractors and particularly those detractors in South Carolina.  In November of 1832, the South Carolina legislature issued the South Carolina Ordinance of Nullification declaring both the Tariff of 1824 and the Tariff of 1828 unconstitutional and therefore null and void within the sovereign boundaries of the state of South Carolina.[63]  In February of 1833, the Congress passed The United States Force Bill authorizing the President to use military force against South Carolina so that the tariff could be enforced.[64] At the same time, Congress passed a revised tariff that John Calhoun and South Carolina would find satisfactory.  As a result, South Carolina repealed the Nullification Ordinance in March of 1833.[65]  While the compromise allowed both the federal government and the state government to claim victory in the standoff, it still didn’t ultimately resolve the questions of nullification, interposition, and secession.  Essentially, the question of whether the federal government gained its power from the sovereign states or the sovereign people was still unresolved.

While those who have heard of nullification and interposition most often associate these theories with South Carolina specifically and the American South in general, there were several instances where Northern states talked of nullification prior to the secession of the Southern states beginning in 1860.  In each of these cases, the controversial Fugitive Slave Act of 1850 was involved.  In Vermont, the legislature approved the “Habeas Corpus Law” which rendered the Fugitive Slave Act unenforceable.  This virtually nullified the federal law.  President Millard Fillmore, the same President who signed the Fugitive Slave Act into law, threatened to use the military to enforce the law (just as Jackson had threatened to use the military in South Carolina), however, there were no actual events in Vermont requiring the military action.[66]  Later in 1854, the Wisconsin Supreme Court declared the Fugitive Slave Law unconstitutional.  Five years later, the Supreme Court overruled the state court in Ableman v. Booth.[67]

While the surrender at Appomattox courthouse may have ended the Civil War and settled the question of whether the United States could exist as a nation as a house divided against itself, and it appeared that Appomattox also settled the questions surrounding nullification, interposition, and secession, history tells us that might doesn’t necessarily mean right.  The Kentucky Resolutions and all of the subsequent battles between the state and federal government highlight what some might consider to be a flaw in America’s Constitution – The Founders did not anticipate that there would be implacable differences between the state and the federal government and didn’t proscribe a remedy in the event that those implacable differences put the state and federal government at odds with one another.

Chief Justice John Marshall recognized this limitation in the Constitution after The Kentucky Resolutions and with the case Marbury v Madison established the Supreme Court as the ultimate arbiter in disputes between the state and federal government.[68]  Some would argue that judicial review was already understood by the Framers of the Constitution.  Federalist Paper No. 78 explains that “the interpretation of the laws is the proper and peculiar place of the courts.”  It goes on to add that “a constitution is, in fact, and must be regarded by the judges as, a fundamental law.”  Therefore, it “belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body.”[69] However, in a letter to William C. Jarvis, Thomas Jefferson claims “The Constitution has erected no such tribunal” and that “To consider the judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy.”[70]

According to Peter Schotten in Marbury v Madison, Rightly Understood, Chief Justice Marshall thought that it was unwise for the Federalists to pass the Alien and Sedition Acts.  However, Chief Justice Marshall “also believed that the Virginia and Kentucky Resolutions were far more dangerous because they undermined the constitutional foundations of the new nation.”[71] Ultimately, it was The Kentucky Resolutions that led Chief Justice Marshall to his conclusion in Marbury v. Madison.  However, Chief Justice Marshall’s remedy in making the Supreme Court the ultimate arbiter in disputes between the state and federal government overlooks one very important fact: If the Supreme Court is the ultimate arbiter of the Constitution, then the arbitrary and capricious whims of the national government is the supreme law of the United States and not the Constitution.  In Marbury v Madison and the precedent of judicial review, Chief Justice Marshall lets a fox in the hen house.  If the national government is the ultimate authority on the scope of its own power, why would it ever have a narrow ruling that continually limits the power of the federal government?  Wouldn’t it always interpret its power very broadly in a self-aggrandizing way until it became Thomas Hobbes’ Leviathan?  At that point, how could Americans have any hope for limited government based on Lockean visions of freedom and enlightened self-interest?

In a letter to John Cartwright, Thomas Jefferson responds to the question, “If the two departments [state and federal] should claim each the same subject of power, where is the common umpire to decide ultimately between them?”  Jefferson responds that in small or urgent matters, “the prudence of both parties will keep them aloof from the questionable ground.” However, Jefferson goes on to add, “If it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best.”[72]  It is interesting that Jefferson proscribes vesting more power in the states considering that Americans have systematically eroded state power in terms of the federal government.  While some would see the Seventeenth Amendment (the direct election of senators) as being a progressive move that grants the voters additional power at the ballot box, it also limited the one check that the states had on federal power.  Prior to the Seventeenth Amendment, state legislatures could theoretically put pressure on their Senators to vote a certain way on laws coming before the Senate, repeal laws that the states found to be problematic, and represent the interests of the states in the upper chamber of the legislature.  After the Seventeenth Amendment was ratified, the states had no check on the federal government at all.  In addition, they lost all representation in the federal government.

The Ninth Amendment to the Constitution states that “the enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”  The Tenth Amendment states “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.”  These two amendments to the Constitution suggest that the Framers of the Constitution and advocates of the Bill of Rights saw three parties to this contractual agreement – the people, the state government, and the federal government.  Because of the way in which the Amendments are written, they imply that it is judicious to keep the power as close to the people as possible (after all, isn’t this what Lockean visions of freedom based on enlightened self-interest is all about).  This suggests that if power cannot be wielded by the people, then the state is the next best thing (because its proximity to the people is closer than the federal government).  While The Kentucky Resolutions may have been a stone’s throw away from anarchy and a danger to the Republic, Jefferson’s notion of the state playing an active role in deciding whether or not its power was being usurped was not unwarranted.

Chief Justice Marshall’s concept of judicial review has worked for most of America’s more than two hundred year history.  However, just because it appears to have worked, doesn’t necessarily mean that it isn’t flawed.  For nearly a hundred and fifty years, Americans have believed that the theories of nullification, interposition, and secession were settled at Appomattox courthouse.  However, they were settled more because of might than because of right.  Unfortunately, because of several high profile cases in the Supreme Court and the increased polarization of the American people, there is once again talk of nullification and secession.  Chief Justice Marshall’s concept of judicial review is grounded largely in the idea of an independent judiciary. However, many Americans of all political stripes see the judiciary as being just as politicized as the rest of America’s institutions.  In a Rasmussen poll in March of 2012, only 28% of Americans gave the Supreme Court a favorable rating.[73]  If the judiciary remains as politicized as it appears to be, will Americans continue to have faith in judicial review?

One possible solution to the problem of the state not having a voice in the federal government and the problem of the people losing faith in the Supreme Court exercising judicial review involves both a Constitutional Amendment and a change in how America confirms its Supreme Court justices.  America needs a Constitutional Amendment to repeal the Seventeenth Amendment.  Returning the power to appoint Senators to the state legislatures gives the states a much needed check on the federal government.  This would make it more difficult for the federal government to pass laws with unfunded mandates and to pass laws that usurp the power of the states and the people.  It would also provide a much needed check against incumbency.  There would be no guarantee that the state legislature would send the same person back to Washington for twenty or thirty years even if their party was in power.  Because incumbents enjoy a huge advantage over challengers (both primary and general election opponents), once they are elected, they tend to stay in office.  This leads to increased corruption.  At least if the states appointed the senators, the corruption would take place in the state legislatures and not in Washington.  If it is judicious to keep power as close to the people as possible, isn’t it equally judicious to keep the corruption close to the people as well?

In our current political system, the Senate is to provide advice and consent on the President’s candidates for Supreme Court justices.  In our current political climate, most of the time hot button issues like abortion dominate the discussions in the confirmation hearings.  If the Seventeenth Amendment was repealed and the Senators were appointed by the legislature, the Senators could then focus on a very different but more important part of the potential justice’s political and judicial philosophy.  Senators could focus on the degree in which the justices would interpret the power of the judiciary and federal government and base their decisions on that.  This is how the states can exercise some control over the federal government.  Through carefully vetting the President’s choices for the Supreme Court and only voting to approve those candidates that subscribe to the political and judicial philosophy of locating power as close to the people as possible, the Senate can restore the integrity of the judiciary and rebuild the public’s faith in an independent judiciary.  If the United States is founded on the consent of the governed and only 28% of Americans approve of the judiciary, the only way that the judiciary can function is if that faith is restored.  In addition, if the Supreme Court justices adhere to the political and judicial philosophy of locating power as closely to the people as possible, many of the cases that the court ruled on would restrict the power of the federal government, leaving less and less for the judiciary to rule on.  In this way, both Jefferson’s idea of limited government and states’ rights and Marshall’s idea of judicial review by an independent judiciary – Jefferson’s poetry in The Kentucky Resolutions and Marshall’s prose in Marbury v. Madison – can stand together as pillars of America’s Republic.

 

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[1] Ferrand, Max. The Records of the Federal Convention of 1787. New Haven: Yale Press, 1911. http://memory.loc.gov/ammem/amlaw/lwfr.html.

[2] Wilson, Woodrow. Congressional Government: a study in American politics. New York: Houghton Mifflin, 1901. http://books.google.com/books?id=r5IYAAAAYAAJ&pg=PR1&source=gbs_selected_pages&cad=3#v=onepage&q&f=false.

[3] Bitzer, Lloyd."The Rhetorical Situation." Philosophy and Rhetoric, 1 (January, 1968), 1-14.

[4] Ibid.

[5] Ibid.

[6] Slaughter, Thomas. The Whiskey Rebellion: Frontier Epilogue to the American Revolution. New York: Oxford University Press, 1986. P. 105.

[7] Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. P. 327-330.

[8] Chernow, Ron. Alexander Hamilton. New York: Penguin, 2004. p. 341

[9] Hogeland, William. The Whiskey Rebellion: George Washington, Alexander Hamilton, and the Frontier Rebels Who Challenged America's Newfound Sovereignty. New York: Scribner, 2006. p.27.

[10] Ibid. p. 63-68.

[11] Zinn, Howard. A People's History of the United States. New York: Harper Collins, 1980. http://www.historyisaweapon.com/zinnapeopleshistory.html.

[12] Taschau, Mary. "The Whiskey Rebellion in Kentucky: A Forgotten Episode of Civil Disobedience." Journal of the Early Republic 2.3 (1982): 239-59. Print.

[13] Ibid.

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] Smith, James M. "The Grass Roots Origins of the Kentucky Resolutions." The William and Mary Quarterly 27.2 (1970): 221-45. Print.

[18] Ibid.

[19] Ibid.

[20] Ibid.

[21] Clary, David. Adopted Son: Washington, Lafayette, and the Friendship that Saved the Revolution. New York: Bantam, 2007. P. 100.

[22] Gaines, James R. For Liberty and Glory: Washington, La Fayette, and Their Revolutions. New York: Norton, 2007. http://books.google.com/books?id=gOD2fRZcqJQC&dq=for+liberty+and+glory&hl=en. P.198-206.

[23] Ketcham, Ralph. "France and American Politics, 1763-1793." Political Science Quarterly (1963): 198-222.

[24] Elkins, Stanley, and Eric McKitrick. The Age of Federalism. New York: Oxford University Press, 1993.

[25] Brant, Irving. James Madison: Father of the Constitution, 1787-1800. New York: Bobbs-Merill, 1950.

[26] Stinchcombe, William. "The Diplomacy of the WXYZ Affair." William and Mary Quarterly 34 (1977): 590-617.

[27] Elkins, Stanley, and Eric McKitrick. The Age of Federalism. New York: Oxford University Press, 1993. P. 665-670.

[28] Adams, John. "Alien and Sedition Acts." Library of Congress Website. http://www.loc.gov/rr/program/bib/ourdocs/Alien.html.

[29] Smith, Jeffery. Franklin and Bache. New York: Oxford University Press, 1990. P. 100.

[30] Ibid. p. 102-104.

[31] Madison, James. "The United States Constitution." United States Government Archives. http://www.archives.gov/exhibits/charters/constitution_transcript.html.

[32] Smith, Jeffery. Franklin and Bache. New York: Oxford University Press, 1990. P. 161.

[33] Smith, James M. "The Sedition Law, Free Speech, and The American Political Process." The William and Mary Quarterly 9, no. 4 (1952): 497-511.

[34] Cooper, Thomas. An Account of the Trial of Thomas Cooper. Philadelphia: J. Bioren, 1800. http://deila.dickinson.edu/theirownwords/title/0017.htm.

[35] Lillich, Richard. "The Chase Impeachment." American Journal of Legal History 4, no. 1 (1960): 49-72.

[36] Madison, James. "The United States Constitution." United States Government Archives. http://www.archives.gov/exhibits/charters/constitution_transcript.html.

[37] Jefferson, Thomas. "Jefferson's Opinion on the Constitutionality of a National Bank." Yale Law School. http://avalon.law.yale.edu/18th_century/bank-tj.asp.

[38] Jefferson, Thomas. "The Kentucky Resolutions." The Constitution Society. http://www.constitution.org/cons/kent1798.htm.

[39] Ibid.

[40] Ibid.

[41] Ibid.

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ibid.

[46] Ibid.

[47] Madison, James. "The United States Constitution." United States Government Archives. http://www.archives.gov/exhibits/charters/constitution_transcript.html.

[48] Jefferson, Thomas. "The Kentucky Resolutions." The Constitution Society. http://www.constitution.org/cons/kent1798.htm.

[49] Madison, James. "The United States Constitution." United States Government Archives. http://www.archives.gov/exhibits/charters/constitution_transcript.html.

[50] Jefferson, Thomas. "The Kentucky Resolutions." The Constitution Society. http://www.constitution.org/cons/kent1798.htm.

[51] Ibid.

[52] Ibid.

[53] Kilpatrick, James J. The Sovereign States: Notes of a Citizen of Virginia. Chicago: Regnery, 1957.

[54] Ibid.

[55] Legal Information Institute. "United States v. Peters." http://www.law.cornell.edu/supct/html/historics/USSC_CR_0009_0115_ZS.html.

[56] Ibid.

[57] Ames, Herman V. State Documents on Federal Relations: The States and the United States. New Yorkl: The Lawbook Exchange, Ltd., 2006. http://books.google.com/books?id=Bw8jd_zKuwIC&pg=PA46&lpg=PA46&dq=Resolution+of+the+Legislature+of+Pennsylvania,+April+3,+1809.&source=bl&ots=1C1UDmdjj4&sig=JX1MMtwhERVs8law8etKC2uIdwU&hl=en&sa=X&ei=d.

[58] Treacy, Kenneth. "The Olmstead Case, 1778-1809." Western Political Quarterly (1957): 675.

[59] Legal Information Institute. "McCulloch v Maryland." http://www.law.cornell.edu/supct/html/historics/USSC_CR_0017_0316_ZS.html.

[60] US Supreme Court Center. "Osborn v. Bank of the United States." http://supreme.justia.com/cases/federal/us/22/738/case.html.

[61] Ellis, Richard E. The Union at Risk: Jacksonian Democracy, States' Rights, and the Nullification Crisis. New York: Oxford University Press, 1987.

[62] Freehling, William. Prelude to Civil War: The Nullification Crisis in South Carolina 1816-1836. New York: Oxford University Press, 1992.

[63] Yale Law School. "South Carolina Ordinance of Nullification, November 24, 1832 ." http://avalon.law.yale.edu/19th_century/ordnull.asp.

[64] Calhoun, John C. Union and Liberty: The Political Philosophy of John C. Calhoun. Indianapolis: Liberty Fund, 1992. http://oll.libertyfund.org/index.php?option=com_staticxt&staticfile=show.php%3Ftitle=683&Itemid=27.

[65] Ibid.

[66] Houston, Horace K. "Another Nullification Crisis: Vermont's 1850 Habeas Corpus Law." The New England Quarterly 77, no. 2 (2004): 252-272.

[67] Cornell University Law School. "Ableman v. Booth." http://www.law.cornell.edu/supct/html/historics/USSC_CR_0062_0506_ZS.html.

[68] Cornell University Law School. "Marbury v Madison." http://www.law.cornell.edu/supct/html/historics/USSC_CR_0005_0137_ZS.html.

[69] Hamilton, Alexander. "Federalist No. 78." The Constitution Society. http://www.constitution.org/fed/federa78.htm.

[70] Jefferson, Thomas. "Thomas Jefferson: On Politics and Government." Family Guardian. http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeffcont.htm.

[71] Schotten, Peter. "Marbury v. Madison, Rightly Understood." Perspectives on Political Science 33, no. 3 (2004): 134-141.

[72] Jefferson, Thomas. "Thomas Jefferson: On Politics and Government." Family Guardian. http://www.famguardian.org/Subjects/Politics/ThomasJefferson/jeffcont.htm.

[73] Rasmussen Reports. "New Low: 28% Give Supreme Court Positive Ratings." http://www.rasmussenreports.com/public_content/archive/mood_of_america_archive/supreme_court_ratings/new_low_28_give_supreme_court_positive_ratings.