Nullification: How to Resist Federal Tyranny in the 21st Century
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At the New York Convention, even Alexander Hamilton—as we have seen, one of the strongest advocates of a powerful central government and among the least committed to the cause of states’ rights—declared that, in all federations, the proposed American one not excepted, “whatever is not expressly given to the Federal Head, is reserved to the members.” The people, moreover, had “already delegated their sovereignty and their powers to their several [state] governments; and these cannot be recalled, and given to another, without an express act.”20 When New York ratified the Constitution, it accompanied its ratification with a brief rendition of the nature of the Union it understood itself to be joining: “Every power, jurisdiction, and right which is not by the said Constitution clearly delegated to the United States of America, or the departments of the government thereof remains to the people of the several States, or to their respective State governments.”21
The people of half a dozen states were specifically assured that the proposed federal government would indeed possess only those powers expressly delegated to it. We may cite a few more of them here. Thus at the Pennsylvania Convention, James Wilson said that “everything not expressly mentioned will be presumed to be purposely omitted.”22 At the North Carolina Convention Governor Samuel Johnston explained that “Congress cannot assume any other powers than those expressly given them, without a palpable violation of the Constitution,” adding that the “powers of Congress are all circumscribed, defined and clearly laid down. So far they may go, but no farther.”23 Charles Pinckney told the convention in South Carolina that the federal government could not execute or assume any powers except those that “were expressly delegated.”24 James Madison emphasized the same point repeatedly both in The Federalist and at his state’s ratifying convention. In Federalist #40 he noted that “the general powers are limited; and that the States, in all unenumerated cases, are left in enjoyment of their sovereign and independent jurisdiction.” In #45 he observed: “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite.” At the Virginia Convention he noted that the federal government would have “defined and limited objects beyond which it cannot extend its jurisdiction.”25 In 1789, the Salem Mercury of Massachusetts published Roger Sherman’s Observations on the New Federal Constitution, and the Alterations That Have Been Proposed as Amendments; Sherman was a Connecticut lawyer who signed the Constitution, and a future U.S. representative and senator. Sherman concurred with the above: “The powers vested in the federal government are particularly defined, so that each State still retains its sovereignty in what concerns its own internal government, and a right to exercise every power of a sovereign State, not expressly delegated to the government of the United States.”26
Well into the early republic, the same assurances were regularly repeated, sometimes by the Federalists themselves—that is, the party in the early republic known for its support for a strong central government.27 Thus Samuel Chase, as partisan a Federalist as ever lived, declared in Calder v. Bull (1798) that “the several State Legislatures retain all powers of legislation, delegated to them by the State Constitutions; which are not expressly taken away by the Constitution of the United States.”28
When we survey the states’ demands for constitutional amendments at the time of ratification, we consistently find reference to the “expressly delegated” principle. In Massachusetts, John Hancock proposed that the Constitution be amended so that “it be explicitly declared, that all powers not expressly delegated by the aforesaid Constitution are reserved to the several states, to be by them exercised.”29 John Adams, in turn, believed such an amendment would serve to diminish or remove people’s apprehensions about the Constitution. The matter was then referred to a committee, whose subsequent report read, in part:
And it is the opinion of this Convention, that [since] certain amendments and alterations in the said Constitution, would remove the fears and quiet the apprehensions of many of the good people of this Commonwealth, and more effectually guard against an undue administration of the Federal Government, the Convention do [sic] therefore recommend that the following alterations and provisions be introduced into the said Constitution. First, that it be explicitly declared that all powers not expressly delegated by the aforesaid Constitution, are reserved to the several States, to be by them exercised. [Seven other proposed amendments followed.]
New Hampshire proposed the same thing. So did Maryland and Pennsylvania. By means of such an amendment, these states sought explicit recognition of the principle that the Federalists themselves assured them was already there: that the federal government possessed only those powers “expressly delegated” to it.30
The absence of the word “expressly” in the Tenth Amendment to the Constitution was not a subterfuge by means of which the federal government could someday exercise a wide array of additional powers. In fact, the addition of the words “or to the people” (as in, all powers not delegated to the federal government are reserved to the states or to the people, from whom they originated) in tandem with the Ninth Amendment,31 had essentially the same effect as the words “expressly delegated.” Emmerich de Vattel, one of the great international lawyers of the eighteenth century, taught in his 1758 work The Law of Nations that sovereigns possess all power they have not expressly delegated, and therefore that any delegation of power by a sovereign must be construed strictly. In the American system, the sovereigns are the peoples of the various states.32 Therefore, their delegations of power to the federal government, according to accepted norms of international law, are to be construed strictly, and their agent is to hold only those powers expressly delegated to it.33
Congressman John Page, who served in the Congress that drafted the Bill of Rights, agreed that the combination of the Ninth and Tenth Amendments had the effect of restoring the word “expressly.” That was also the view of James Madison. Madison publicly noted, shortly after the ratification of the Constitution, that the state conventions had ratified on the understanding that the federal government would possess only “expressly delegated power.” And indeed, Madison believed the Ninth and Tenth Amendments taken together had accomplished exactly that.34 In fact, Thomas Tucker, the congressman who sought without success to add the word “expressly” to the amendment, was also the one who added “or to the people,” a phrase he considered more important even than “expressly.” He envisioned both of these additions as accomplishing the same end. Explicit reference to the principle of popular sovereignty in the Constitution would, by the American understanding of the existing “law of nations” (as “international law” was then known), confine the federal government to only those powers expressly delegated by the peoples of the states.35
The omission of “expressly” had a far less ambitious aim than is popularly understood today. It was intended to leave room for the federal government to exercise clearly incidental means to carrying out its assigned tasks. In the Virginia Ratifying Convention, for instance, Edmund Randolph noted the inability of the Articles of Confederation government to issue passports, even though such a power, while not “expressly delegated” to the Congress, was surely incidental to the diplomatic tasks entrusted to it. By omitting this specific word—“expressly”—which had yielded inconveniences in the past, the framers of the Amendment addressed this earlier difficulty. But by inserting the idea of popular sovereignty, they restored the principle that the federal government possessed only expressly delegated powers, and that any powers it might further exercise would have to be clearly incidental to the exercise of the delegated powers. Thus, whatever we may think of the decision to omit the word “expressly,” the omission in no way justifies the view that the federal government possesses an endless source of additional, unspecified powers.
The historical record is much too clear and consistent for any other interpretation of the issues we have discussed in this chapter to have much chance of suc
cess. That is why critics typically give up trying to argue the matter. They change the subject, proposing instead that none of this matters anyway, since what the Framers may have written over 200 years ago is of no import to modern-day Americans. Even if this argument were true, it is silent on the question that really matters: how exactly are we to know what the original Constitution should be replaced with, in accordance with people’s supposedly different outlook today? Who decides? The implicit answer is that we let federal judges decide on the evolving meaning of the Constitution. But this would merely give a small group of politically well-connected lawyers a monopoly on determining how Americans will be governed.36 Such an arrangement sounds much less desirable when stated that way, which is why it never is stated that way.
Furthermore, since the Framers of the Constitution made clear that the clauses we examined above—general welfare, commerce, and necessary and proper—were very far from open-ended grants of power to the federal government, how can the mere passage of time transform these clauses into the broad grants of power that our critics want them to be? Even Alexander Hamilton insisted, in Federalist #78, that unless the people had solemnly and formally ratified a change in the meaning of the Constitution, the courts could not proceed on any other basis. “Until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.” Likewise, James Iredell, a leading North Carolina Federalist and the youngest of the original Supreme Court appointees, explained that the people had chosen “to be governed under such and such principles. They have not chosen to be governed or promised to submit upon any other.”37 Thomas Cooley, the distinguished Chief Justice of the Michigan Supreme Court, declared in 1868 that a court
which should allow a change in public sentiment to influence it in giving construction to a written constitution not warranted by the intention of its founders, would be justly charged with reckless disregard of official oath and public duty…. A Constitution is not to be made to mean one thing at one time, and another at some subsequent time when the circumstances may have changed as perhaps to make a different rule in the case seem desirable.38
We’re sometimes told that ours is a “living” Constitution that changes with the times. Again, this merely begs the question. Who decides what these changes should be? Judges? The Constitution does allow for amendment, which would secure the people’s consent to any major changes, but this is not what advocates of the “living” Constitution have in mind. They mean the federal government will have a monopoly on deciding how the Constitution should be interpreted now and in the future. Suspicions that it might abuse this power, that it might suddenly discover a whole host of new powers for itself as it re-examines day by day what the Constitution really ought to mean, are a sign that we are being paranoid and unreasonable. We should instead adopt the tranquil outlook of Britney Spears, who told us: “I think we should just trust our president in every decision he makes and should just support that, you know, and be faithful in what happens.”39
Thomas Jefferson took the opposite view. Should there be a desire to grant the federal government additional powers, it is better to do so the right way, with popular consent through the amendment process, than for the government itself simply to go ahead and exercise the powers, stretching the meaning of the Constitution to do so. As he told a correspondent, “When an instrument admits two constructions [interpretations], the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe & precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless.”40
A “living” constitution is precisely what the American colonists fought against in the American Revolution. The unwritten, “living” British constitution, they found, provided scant protection of their liberties. The colonists held fast to an older view of British constitutionalism, according to which a proposed measure was constitutional only if it conformed to customary practice.41 This approach had given way to the principle that the criterion of constitutionality was not custom and tradition but simply the will of Parliament. This is why Americans insisted on a written constitution for their new country—they knew all too well what it was like to live under a “living” constitution whose meaning could not be definitively pinned down. If we’d like to spit in the faces of our ancestors who fought for American independence from the British, we should by all means advocate a “living Constitution.”
In short, it was with good reason that Jefferson wrote, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”42 That constitution had to be construed strictly if it were not to defeat the purpose of its drafting. “Our peculiar security is in possession of a written constitution,” Jefferson wrote. “Let us not make it a blank paper by construction.”43 In other words, let us not interpret the Constitution so liberally that we destroy its deliberately crafted restraints on government power. One can only imagine what he would have thought of the Supreme Court of our day—which, in the face of all the evidence set forth above, can declare with a straight face, as it has numerous times, that “the power of Congress to authorize expenditure of public moneys for public purposes is not limited by the direct grants of legislative power found in the Constitution.”44
Having established the limited nature of the federal government under the Constitution, we now consider the Jeffersonian answer to the urgent question: what is to be done if that government violates the Constitution? What options are available to the people?
To answer that question, we proceed to the presidential term of John Adams, who was elected in 1796. Events leading to the Quasi War with France were already in progress by the time Adams took office. Diplomatic relations between the United States and France had been cool for years by then. Alienated by (among other things) the American government’s increasingly warm relations with Britain, as well as its refusal to repay its Revolutionary War debt to France (on the grounds that that debt had been contracted with the previous French regime rather than the revolutionary one), the French government, at war with the British, instituted a policy of seizing American ships trading with the British. The resulting Quasi War amounted to a series of relatively minor naval clashes between the two countries.
A war hysteria subsequently broke out, far out of proportion to the danger the country faced, which Adams himself privately acknowledged was minimal to nonexistent.45 Noah Webster’s newspaper warned that in the event of a French invasion, an American Executive Directory headed by Jefferson, Madison, James Monroe, and Aaron Burr would take control of the country. Porcupine’s Gazette condemned Jefferson as “the head of the democratic frenchified faction in this country.” Jefferson had favored the French Revolution, it is true; his enthusiasm had even bordered on the grotesque at a time when France was convulsed by the Reign of Terror. But he was obviously not aiding the French or planning a Jacobin-style revolution, and in fact he later spoke of “the horrors of the French revolution” and “the murderous Jacobins of France.”46 Not surprisingly, correspondence between Jefferson and Madison during this period reflects their growing alarm at the fanaticism they saw enveloping their country. “Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions against danger, real or pretended, from abroad,” wrote Madison.47
During the Quasi War, the federal government enacted four pieces of legislation that became known as the Alien and Sedition Acts of 1798. The Naturalization Act, the least controversial among them, extended the period required for foreigners to become American citizens, and was repealed four years later. The Alien Friends Act authorized the president to deport resident aliens considered “dangerous to the peace and sa
fety of the United States,” and expired in two years. The Alien Enemies Act, still on the books today, authorized the president to deport aliens whose home countries were at war with the United States.
Although Republicans objected to the Alien Acts on a variety of constitutional grounds, they were essentially not enforced, so we turn our attention to the Sedition Act, by far the Republicans’ greatest source of concern.48 That Act established fines and jail time
if any person shall write, print, utter, or publish, or shall cause or procure to be written, printed, uttered, or published, or shall knowingly and willingly assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either House of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States.
Congressional supporters of the Sedition Act, defended the legislation by citing the “general welfare” and “necessary and proper” clauses of the Constitution.49
In addition to the constitutional problems with the Sedition Act, its partisan nature seemed obvious. The president was a Federalist, and the Congress was dominated by Federalists. Under the Sedition Act, they could not be criticized. The vice president was the Republican Thomas Jefferson.* The Sedition Act imposed no penalties for criticizing him. That was fine by Jefferson, who believed calumny went with the territory when one entered politics, for it is “an injury to which duty requires every one to submit whom the public think proper to call to its councils.” He would not “suffer calumny to disturb my tranquility.”50