Nullification: How to Resist Federal Tyranny in the 21st Century

by Thomas E. Woods

  The convictions began quickly enough. Although Matthew Lyon, a U.S. congressman from Vermont, had fought in the American Revolution, that wasn’t enough to save him from sedition charges for the crime of writing one letter and publishing another. The letter he wrote spoke of President Adams’s “continual grasp for power” and his “thirst for a ridiculous pomp, foolish adulation, and selfish avarice.” The letter he published was from an American in France who wondered why Adams had not been committed to “a mad house.” Lyon was sentenced to four months in prison and a fine of $1,000. Stevens T. Mason, a U.S. senator from Virginia, joined by ordinary citizens from Vermont, collected the money to pay Lyon’s fine. Popular opinion was very much in sympathy with Lyon following his arrest, so much so that he won re-election to the House while still incarcerated.51

  Other convictions were equally egregious. Political writer James Callender was given a biased, kangaroo proceeding by Justice Samuel Chase, whose later impeachment by the House was motivated in part by outrage at his conduct in this case. Writer and lawyer Thomas Cooper, reflecting on his own trial, cautioned that Americans “may learn some useful lessons from this trial; and principally, that if they mean to consult their own peace and quiet, they will hold their tongues, and restrain their pens, on the subject of politics.”52

  What was to be done? Jefferson saw that some form of resistance was surely necessary, but what form should it take? In the face of unconstitutional federal laws, Jefferson—constitutionalist first; vice president second—believed a stronger response than mere petitions and protests was called for, but he also wanted the states to avoid the other extreme of secession. Although he believed in a state’s right to withdraw from the Union (this being merely a logical extension of the principle of self-government, which was central to Jefferson’s political philosophy), he thought that right should be exercised only as a last resort. What he sought was a mode of resistance that would allow a state to remain in the Union, but at the same time recognize its right to defend itself against federal usurpation. Nullification, in this view, was not an extreme remedy at all. It was the moderate middle ground. It was a central feature of Jeffersonian thought that “the true barriers of our liberty…are our State governments,” and it was via nullification that Jefferson suggested those barriers be employed.53

  The judiciary was, for Jefferson, certainly not the answer to such problems. For one thing, the Supreme Court in his day was packed with Federalists who would surely have upheld the constitutionality of the Alien and Sedition Acts. For another, the Supreme Court was itself a branch of the federal government, and thus not an impartial arbiter. And finally, the judiciary was composed of human beings no different from the rest of mankind. “To consider the Judges of the Superior Court as the ultimate Arbiters of Constitutional questions,” he argued, “would be a dangerous doctrine which would place us under the despotism of an oligarchy. They have with others, the same passion for party, for power, and for the privileges of their corps—and their power is the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the Elective control. The Constitution has elected no single Tribunal. I know no safe depositary of the ultimate powers of society but the people themselves.”54

  It makes instructive reading to examine the correspondence between Thomas Jefferson and James Madison during 1798 and 1799, and to observe their heightened concern for the future of constitutional government in light of the misplaced war fever and especially the Alien and Sedition Acts. Unfortunately, the letters they might have written to each other regarding the details of what became the Virginia and Kentucky Resolutions in particular do not exist. Jefferson feared that Federalist postmasters were opening and reading their mail. He was ashamed that he could not speak his mind in his own country: “I know not which mortifies me most, that I should fear to write what I think or that my country bear such a state of things.”55 Jefferson later called the Sedition Act “a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image.”56

  Jefferson drafted a series of resolutions that (1) described the nature of the federal Union, (2) condemned the Alien and Sedition Acts as gross violations of the Constitution, and (3) considered the proper response by the states. He gave these resolutions to Wilson Cary Nicholas, his neighbor and a member of the Virginia Senate. When Nicholas gave them to John Breckinridge (a member of the Kentucky legislature who had also been Jefferson’s neighbor at one time), who happened to be passing through Virginia, both Jefferson and Nicholas trusted his assurances that the Kentucky legislature would pass them.57

  According to Professor Marco Bassani, author of a recent study of Jefferson’s political thought, these resolutions, which in modified form became the Kentucky Resolutions of 1798, contain “the whole of his theory of the federal union.”58 They begin with this pithy defense of the Jeffersonian view of the nature of the United States:

  1. Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their general [federal] government; but that, by a 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; and that 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 part, its co-States forming, as to itself, the other party: 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; 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. [Emphasis added.]

  Here, in brief, is the essential statement of the principles behind nullification. The states had not agreed to a system in which they would submit without protest to whatever the federal government should do. To the contrary, the states established a federal government with limited powers, and reserved for themselves all powers they did not delegate to that government. Any measures the federal government should take beyond the powers delegated to it are absolutely void. The federal government, which the states themselves created, cannot hold a monopoly on constitutional interpretation and cannot decide for itself what the extent of its own powers are. That would mean the people were governed by the mere discretion of their rulers rather than by the Constitution. Since the federal government, either as a whole or in its branches, is not and cannot be an impartial arbiter of disputes between itself and the states of which it is composed, it is up to each state’s own judgment to decide when the Constitution has been violated and how that violation is to be addressed. (As we shall see in chapter 4, although Jefferson deserves much credit for his exposition of these ideas, they in fact long preceded his Kentucky Resolutions.)

  Much of the remainder of the Kentucky Resolutions involved an attack on the constitutionality of the Alien and Sedition Acts. The argument, in brief, was twofold: (1) restrictions on political speech violated the First Amendment; and (2) the states never delegated to the federal government the powers to be exercised under the Acts, and thus the exercise of those powers violated the Tenth Amendment. The federal government’s appeal to the “general welfare” and “necessary and proper” clauses in defense of the legislation was, according to the Resolutions, an absurd violation of the original understanding of those phrases and tended toward the “destruction of all the limits prescribed to [the federal government’s] power by the Constitution: that words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to
be taken, as to destroy the whole residue of the instrument.”

  The conclusion then returned to general principles. “This Commonwealth,” read the text, “is determined, as it doubts not its Co-states are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth.” It expressed confidence that the other states would see things the same way—namely, that the acts in question were clear violations of the Constitution, and indeed “altogether void and of no force.”

  John Breckinridge, who sponsored the Resolutions in the Kentucky House, argued that when the federal government enacted merely “impolitic” laws, the people should strive to repeal them. But when the federal government passed laws that extended beyond its constitutional powers, the people at the state level ought “to make a legislative declaration that, being unconstitutional, they are therefore void and of no effect.” With regard to the Alien and Sedition Acts in particular, while Breckinridge hoped Congress might repeal them, or that decent judges might refuse to act upon them, he declared that the states could nullify them: “I hesitate not to declare it as my opinion that it is then the right and duty of the several States to nullify those acts, and to protect their citizens from their operation.”59 And to those who replied that federal judges had found the Acts to be constitutionally unobjectionable and so the matter was closed, Breckinridge replied: “Who are the judiciary? Who are they, but a part of the servants of the people created by the Federal compact? And if the servants of the people have a right, is it good reasoning to say that the people by whom and for whose benefit both they and the government were created, are destitute of that right?”60

  In section eight of his draft of the Kentucky Resolutions, Jefferson had included the word “nullification,” describing it as the “rightful remedy” in such situations, but a skittish legislature removed it. The use of that word had to await the Kentucky Resolutions of 1799, which read in relevant part:

  If those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures [here the reference is to states that had responded unfavorably to the Kentucky Resolutions of 1798], that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration 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.61

  There it is, as clear as anyone could ask for: “nullification…is the rightful remedy” against infractions of the Constitution.

  The Virginia Resolutions of 1798 likewise protested the Alien and Sedition Acts and urged the states to take action against them.62 Up until the very recent renewal of interest in these ideas, it was scarcely possible to imagine one of the feckless and docile American states confronting the federal government in such language as Virginia did in 1798:

  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 the 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.

  In Document IX of this book, Judge Abel P. Upshur considers various means of “interposing for arresting the progress of the evil” of usurpation, and concludes that the only avenue of redress by which a state may effectively interpose its authority is indeed nullification.

  The Resolutions continue:

  The General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty.

  This is a formal protest against broad interpretation of the Constitution, whereby the “general phrases” we examined earlier in this chapter are interpreted so loosely as to pretend the subsequent list of the federal government’s powers did not exist. (In Madison’s famous Report of 1800, he confirmed that the general welfare clause was what the Virginia legislature had had particularly in mind.)

  The Virginia Resolutions close with an appeal to the other states to join with that state in declaring the Alien and Sedition Acts unconstitutional, and to take such measures as are necessary to protect the rights of the states and the people.

  The initial draft of the Resolutions, as John Taylor introduced them into the Virginia legislature, referred to the Alien and Sedition Acts as “unconstitutional, and not law, but utterly null, void, and of no force or effect.” The words following “unconstitutional” were later struck out with Taylor’s consent. Taylor considered them superfluous, since it went without saying that an unconstitutional law was not law but rather void and of no effect.63 That was a widely held position. Congressman James Barbour, who later served as governor of Virginia and U.S. Secretary of War, concurred: “If the alien and sedition laws are unconstitutional, they are not law, and of course of no force.” Another Republican agreed that “if they were unconstitutional, they, of course, were null and void.”64

  The principles of the Virginia Resolutions, Taylor contended, were essential to the maintenance of a federal republic. Should the states sit idly by as their reserved powers are invaded, vainly waiting years for elections to put things right, then “all powers whatsoever would gradually be absorbed by, and consolidated in, the general government.” The states do not “hold their constitutional rights by the courtesy of Congress…. Congress is the creature of the States and of the people; but neither the States nor the people are the creatures of Congress. It would be evidently absurd, that the creature [Congress] should exclusively construe the instrument of its own existence [the Constitution].”65

  For his part, Congressman Edward Livingston of New York declared in the U.S. House of Representatives that the states and the people must resist the unconstitutional acts in question:

  If regardless of our duty as citizens, and our solemn obligations as representatives; regardless of the rights of our constituents; regardless of every sanction, human and divine, we are ready to violate the Constitution we have sworn to defend—will the people submit to our unauthorized Acts? Will the states sanction our usurped power? Sir, they ought not to submit—they would deserve the chains which these measures are forging for them, if they did not resist.66

  The Virginia and
Kentucky Resolutions were not warmly received by the other states, which either ignored or denounced them. Delaware curtly dismissed the Resolutions as “a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendency, and therefore not a fit subject for the further consideration of the General Assembly.”67 Rhode Island declared that in the private opinion of its legislators, the Alien and Sedition Acts were perfectly constitutional, indeed well “within the powers delegated to Congress, and promotive of the welfare of the United States.”68 The state legislature “cannot contemplate, without extreme concern and regret, the many evil and fatal consequences which may flow from the very unwarrantable resolutions aforesaid of the legislature of Virginia.” (Thus the Alien and Sedition Acts themselves were perfectly constitutional, but Virginia’s call to resistance was to be deplored.) The Massachusetts state senate “explicitly declare[d], that they consider the acts of Congress, commonly called ‘the alien and sedition acts,’ not only constitutional, but expedient and necessary.” The Sedition Act, it said, was “wise and necessary,” since “an audacious and unprincipled spirit of falsehood and abuse had been too long unremittingly exerted for the purpose of perverting public opinion, and threatened to undermine and destroy the whole fabric of the government.” Not surprisingly, it denied the power of “any of the state governments to decide upon the constitutionality of the acts of the Federal Government.”69