A Different Washington

November 9, 2013

Annex to November 6, 2013

The following is an analysis of the documents most often claimed to support nullification.

The Federalist
It is argued that Madison, even in the early years, when he was an advocate of strong central government, supported nullification, citing Federalist No. 46.[132] In the passage relied upon, Madison said this:

Should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.

An unpopular, even unconstitutional, law might be met with opposition: not a startling notion. The disquietude of the people, even their refusal to cooperate, might result. The governor might frown; the legislature might resort to embarrassing "devices." Does this passage, or does Federalist 46, refer to nullification? Well, no.

The Virginia Resolutions of 1798 [133]

This document consisted of eight resolutions, the first of which "Resolved, That the General Assembly of Virginia, doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, . . . and that they will support the government of the United States in all measures warranted by the former." This suggests that Virginia will support the federal government, but only in "measures warranted by" the Constitution. This hints at a theory of state review of the constitutionality of federal laws, but we must see how or whether Virginia used that theory before deciding whether it aids neo-nullifiers.

The second resolution recited that "this assembly most solemnly declares a warm attachment to the union of the states, to maintain which it pledges its powers; and that, for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure its existence and the public happiness." In other words, for the good of the union, it proposed to offer an opinion about acts of Congress. Many of us do that regularly.

The third resolution draws the most attention.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.

There is states’-rights language here, but its significance depends on the intent of the term "interpose." As we will see, in practice it had a limited meaning, of no aid to neo-nullifiers.

The fourth resolution charged that the federal government had arrogated power "so as to consolidate the states, by degrees, into one sovereignty. . . ." This is a complaint which was as unrealistic in the 1790s as it is now. In any case, it is a political complaint, of no relevance to the nullification issue, except that nullification is offered as a cure for such alleged tendencies. However, nullifiers must justify the theory before deciding how to use it.

The fifth resolution is the heart of the document:

That the General Assembly doth particularly PROTEST against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts," passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government . . .

Contrary to the sweeping interpretation given to the Resolutions by advocates of nullification, and contrary to the implications of its bolder language, Virginia limited itself to protesting the Alien and Sedition Acts.

The sixth resolution objected to restrictions, under the Acts, on "liberty of conscience and the press" in violation of the First Amendment.

In the seventh resolution, the Assembly, again declaring "the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitution," asked for support:

[T]he General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each, for coöperating with this state, in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.

The last phrase may excite nullifiers, as it echoes the Tenth Amendment but, like the Tenth, it has no specific meaning. Although the seventh resolution declares that the Acts are unconstitutional, it does not mention nullification and there is nothing in the Resolutions which even hints at it. Virginia expressed its opinion that the Acts were unconstitutional and called on other states to agree. The eighth and last resolution asked the Governor to transmit a copies of the resolutions to the other states.

The Kentucky Resolutions of 1798[134]

Jefferson and Kentucky were less cautious, taking a bold constitutional position in the first resolution. It began by reciting its view of the limitations of the federal government:

That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; . . .

Based on that theory, Kentucky asserted, in several ways, a right in the states to determine the limits of federal power; the following is another part of resolution one:

[T]hat whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this [federal] government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among 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.

Jefferson’s draft included this phrase: "where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy." The legislature omitted that, perhaps thinking it too bold, but its language, "unauthoritative, void, and of no force," and "each party has an equal right to judge for itself," might seem to imply the same conclusion.

The second resolution denounced all federal criminal laws except those specifically identified in the Constitution. It began with a list: "the Constitution of the United States . . . delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offences against the law of nations, and no other crimes, whatsoever. . . ." It added that "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." It concluded that any "acts which assume to create, define, or punish crimes" other than those listed in the Constitution "are altogether void, and of no force" and, for good measure, "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." That is strict construction carried to an absurd length, in effect claiming that the Constitution should be interpreted as if it were a criminal statute, denying to the federal government the right to deal with any crime not mentioned there. The resolution’s list isn’t complete, as it ignores federal jurisdiction over the District and other federal properties and the territories, but the more important point is that defining crimes and enforcing criminal laws is both a core attribute of sovereignty and a classic case of the application of the necessary and proper clause.

The purpose of the second resolution’s overreach was to find a basis for declaring the Alien and Sedition Acts unconstitutional, but it also condemned "An Act to punish frauds committed on the bank of the United States."

The third resolution addressed limitations on free speech in the Sedition Act. It expanded on its argument of unconstitutionality and, in so doing, met itself coming back. First, it declared again "That 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," and concluded that, since "no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people." Thus far the argument is clear, if not necessarily correct. However, the resolution added that "another and more special provision has been made by one of the amendments to the , which expressly declares, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press." If the federal government had no power under the Constitution to abridge freedom of speech or of the press, then an amendment was unnecessary. Therefore the resolution argued either that the First Amendment was superfluous or that such a power could be implied from the original language of the Constitution, exactly what it was attempting to deny.

Resolution four declared that "alien friends are under the [exclusive?] jurisdiction and protection of the laws of the state" because no power over them is mentioned in the Constitution.

The Constitution contains a clause prohibiting the federal government from halting the slave trade before 1808. Resolution five illogically offered up that provision as an argument against the legitimacy of the Alien Act. Resolution six offered a more sensible argument based upon due process. Resolution seven argued against a broad interpretation of the necessary and proper clause.

Kentucky had made sweeping, self-assertive claims; what, then, would it do? It merely asked, in the eighth resolution, that the laws be repealed: "Resolved, That the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are enjoined to present the same to their respective houses, and to use their best endeavors to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts."

The ninth and final resolution requested that the Governor send the Resolutions to other states. There followed a long, convoluted statement of reasons for forwarding them which ended with a combination of rhetoric and realism, calling on other states to "concur in declaring these void and of no force, and . . . unite with this commonwealth in requesting their repeal at the next session of Congress."

The Kentucky Resolutions of 1799[135]
Kentucky addressed the issue again the following year; The resolutions were set out in one long paragraph, but there are nine separate propositions. The responses of other states expressed concern over Kentucky’s assertions. Accordingly, it felt the need to reassert its loyalty, so (in resolutions one and two) it did so, hesitantly: "Resolved, That this commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution."

In the third, it asserted that, if the federal government were "permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence." This highly unlikely result seemed to be a constant worry.

In the fourth, Kentucky disavowed "the principle and construction, contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it. . . ." In the fifth and sixth, it reiterated its theory of state adjudication and added the only express reference in any of the Resolutions to nullification: "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 color of that instrument, is the rightful remedy." The last is a paraphrase of the clause drafted by Jefferson for the 1798 Resolutions.

In the seventh resolution, Kentucky limited its complaint to the Alien and Sedition Acts but hinted at unilateral action:

[T]his commonwealth does . . . declare, that the said Alien and Sedition Laws are, in their opinion, palpable violations of the said Constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal.

Having reached the rhetorical brink, Kentucky backed away from it in the eighth resolution:

[A]lthough this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare, that it will not now, nor ever hereafter, cease to oppose, in a constitutional manner, every attempt, from what quarter soever offered, to violate that compact. (emphasis added)

The ninth added a rhetorical flourish:

And finally, in order that no pretexts or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact; this commonwealth does now enter against them, its solemn PROTEST.

The more ambitious passages may not quite amount to sound and fury signifying nothing, but they certainly provide no constitutional or historical basis for the doctrine of nullification. Virginia and Kentucky expressed their entirely proper opposition to the Alien and Sedition Acts and, especially in the case of Kentucky, indulged in some venting, but the solution was, as it always had been, political.

Report of the Virginia legislature of 1800[136]
Nullifiers claim that Madison’s adherence to states rights and nullification is recorded in a further document, a Report of the Virginia legislature. The Report adopted in January, 1800 (drafted by Madison in late 1799), is a long, rambling document which was prompted by pique at the negative responses by other states to the Resolutions of 1798.

About sixty percent of the 1800 Virginia Report addressed itself to the evils of the Alien and Sedition Acts and, apart from the repetition of some rhetoric in earlier passages, that section is neither controversial nor of much relevance to the present topic.

In the earlier sections, the Report made several statements which are generally supportive of a theory of states’ rights. There is a reference to the Tenth Amendment: "the powers not given to the government, were withheld from it . . . ." The theory of state adjudication is repeated:

The Constitution of the United States was formed by the sanction of the states, given by each in its sovereign capacity. . . . The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and, consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

The Report acknowledged that interposition could be considered an encroachment on the role of the Supreme Court: "But it is objected that the judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort; and it may be asked for what reason, the declaration by the General Assembly, supposing it to be theoretically true, could be required at the present day and in so solemn a manner." In justification, the Report stated that interposition would be limited to "those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it." After all, the Court might make the wrong decision, i.e., uphold a federal law considered in Virginia to exceed constitutional powers:

The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

What does all of this talk of interposition and decision in the last resort really mean? Despite the foregoing, it doesn’t mean substituting the state’s ruling for that of the Court:

[A] declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.

In other words. there is nothing novel about a protest. Does Virginia claim to be doing more than that? No:

Nor can the declarations of either [citizens or legislatures], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.

The Resolutions, far from being acts of nullification or even a serious assertion of a right to judge the constitutionality of a statute, are merely expressions of opinion which, it is hoped, will change other opinions.

The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former [expressions of opinion] may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged. (emphasis added to both quotes)

Again, we have sweeping rhetoric reduced to innocuous dimensions: interposition means the emphatic expression of opinion, not substitution for the Supreme Court.

The Report renewed the call of the Resolutions: "Resolved, That the General Assembly . . . finds it to be its indispensable duty to adhere to the [Resolutions], . . . and more especially to be its duty to renew, as it does hereby renew, its protest against ‘the alien and sedition-acts,’ as palpable and alarming infractions of the Constitution."

Like the 1798 Resolution, the 1800 Report was a protest.[137]

Notes on Nullification[138]
In this 1836 document Madison repudiated the doctrine of nullification. Nullifiers argued then as they do now that the Virginia Resolutions supported their position, even though Virginia rejected that interpretation. As Madison put it: "Altho' the Legislature of Virginia declared at a late session almost unanimously, that S. Carolina was not supported in her doctrine of nullification by the Resolutions of 1798, it appears that those resolutions are still appealed to as expressly or constructively favoring the doctrine." (There is an argument [139] that Madison, in that comment, meant only to disapprove the South Carolina version of nullification, not the principle. The argument is confused and self-defeating).

Madison pointed out that the Virginia Resolutions had as their "main and immediate object . . . to produce a conviction everywhere, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts." He muddied the waters by referring to an inherent right of rebellion: "In this view of the subject there is nothing which excludes a natural right in the States individually, more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution." However, that is an entirely different matter, an extra-constitutional action: "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 state cannot nullify without repudiating the Constitution. "A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined." Again, "There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be incongruous in theory." This seems obvious enough not to require elucidation but then, as now, strange ideas were abroad.

Other writings

On at least two other occasions, Madison rejected the misuse of the Virginia Resolutions and the notion that states had the power to decide whether to obey federal laws. In a letter in 1830, he stated that the Constitution "cannot be altered or annulled at the will of the States individually" and that a "uniform authority of the laws, is in itself a vital principle." He also noted that the debate on the 1798 Resolution "discloses no reference whatever to a constitutional right in an individual State to arrest by force the operation of a law of the U. S." The solution to bad laws is to oppose and repeal them, which is what happened then: "When the Alien & Sedition laws were passed in contravention to the opinions and feelings of the community, the first elections that ensued put an end to them."[140]

In a letter of 1833, he observed that

The words of the Constitution are explicit, that the Constitution & laws of the U. S. shall be supreme over the Constitutions & laws of the Several States; supreme in their exposition and execution as well as in their authority. . . . The imagination itself is startled at the idea of twenty four independent expounders of a rule, that can not exist, but in a meaning and operation, the same for all.[141]

The contention of today’s nullifiers is more than twice as startling.

Where does a review of all of these documents leave us? The Kentucky Resolutions of 1798 asked its representatives in Congress to work toward repeal of unjust laws. There is one claim of a right of nullification, in the Kentucky Resolutions of 1799 which, however, stated that "this commonwealth . . . will bow to the laws of the Union." The Virginia Resolutions mentioned interposition once, and the Virginia Report used "interposition" or "interpose" several times, but those documents merely protested the Alien and Sedition Acts; the Report disavowed a challenge to the Supreme Court. There are other statements generally supportive of the doctrine of states’ rights, or more specifically of a right of opposition, some of which evaporate on inspection, some of which remain, but none of which proposes nullification, and some of which, being revolutionary, stand outside the compact theory. The nullifiers’ collection of proof texts forms the weakest of reeds on which to lean.

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132. See Mike Maharrey, "The Blueprint: James Madison’s Advice,"

http://tenthamendmentcenter.com/2013/08/07/the-blueprint-james-madisons-advice/#.UhusN4_n_Vw