As we can see, much of the reason for these indignant replies was that many of the states issuing them supported the Alien and Sedition Acts whose constitutionality the Resolutions so robustly denied. In fact, as we’ll see in chapter 3, some of the very states that professed to be so appalled at the Principles of ’98—as the ideas contained in the Virginia and Kentucky Resolutions came to be known—themselves made use of them not ten years later. So we may take their shock and horror in 1798 with a grain of salt. (Remember, too, that these state legislatures were dominated by Federalists, the party that supported the Alien and Sedition Acts and in whose interests those laws had been drafted.)
Also significant is that it was not Jefferson’s compact theory of the Union, discussed in greater detail in chapter 4, to which these states objected. Of the states issuing critical replies to the Resolutions, only Vermont actually called into question the idea that the Union had been formed as a compact among sovereign states. Thus the Jefferson/Madison conception of the Union was not itself a source of particular controversy.70
In light of the disappointing response by the other states, Virginia decided to draft a special report, to be written by James Madison, which would respond to the arguments advanced against the position Virginia had taken and consider whether any retreat from the Resolutions of ’98 was warranted. The resulting Report of 1800 declared that having examined the matter with great care, Virginia saw no reason to withdraw or amend its Resolutions. To those states that had pointed to the Supreme Court as the arbiter of disputes over power between the federal government and the states, Madison argued in the Report that the judiciary, too, could commit transgressions against the Constitution and likewise had to be guarded against:
The resolution supposed 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.
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.71
In short, the Virginia and Kentucky Resolutions of 1798, along with the follow-up Report of 1800 and Kentucky Resolutions of 1799, held that (1) the federal government had been created when sovereign states granted it a few enumerated powers;(2) any powers not so delegated remained reserved to the states or the people, a point expressly stated in the Tenth Amendment; and (3) should the federal government exercise a power it had not been delegated, the states ought to interpose—that is, they ought to stand between their own people on the one side and the federal government’s unconstitutional law on the other.
The Principles of ’98 are essentially ignored and unknown today. No bicentennial commemoration was held in their honor in 1998. Even professional scholars have chosen (“mostly for ideological reasons,” according to Professor Bassani) to downplay the Kentucky Resolutions in studies of Jefferson’s thought, despite their centrality to his understanding of the Union. Dumas Malone spends six pages on the subject out of six entire volumes on Jefferson; Merrill Peterson’s biography of over one thousand pages covers the Resolutions in four or five pages. R. B. Bernstein’s study, often referred to as the best short biography of Jefferson, grants them a quarter of a page. Bernard Weisberger’s study of the political battles culminating in the election of 1800 covers the Kentucky Resolutions in one sentence.72
This deliberate neglect has resulted in a distorted and biased rendering of American history. With the Virginia and Kentucky Resolutions and their doctrines downplayed and their subsequent history completely ignored, political decentralization and the defense of the powers of the states have come to be viewed as the political goals only of those who wish to preserve slavery and oppression. Much of the rest of this book (and much of what we have already said) is dedicated to disproving this unsupportable claim.
Historian Eugene Genovese made a good start toward this end when he considered the five Virginians who made the greatest intellectual contributions to the strict constructionist, states’ rights interpretation of the Constitution: George Mason, Thomas Jefferson, John Randolph of Roanoke, St. George Tucker, and John Taylor of Caroline. “If strict construction and state rights were merely or essentially a façade for the defense of slavery,” he said,
we need to account for a disturbing and incontrovertible fact. Of the five, only Taylor was proslavery, and even he regarded it as an inherited misfortune to be tolerated, rather than celebrated. Mason and Randolph spoke out against slavery. Tucker wrote the first important plan for emancipation to come out of Virginia. And when the legislature ignored it, he appealed to the American people by including it as an appendix to his edition of Blackstone, which was widely read by those who aspired to the bar and, indeed, by a great many of those who, in the manner of the day, aspired to be proper gentlemen. In the minds of these five men, and to a considerable extent in their political practice, strict construction and state rights had little to do with slavery.73
The Principles of ’98 had exactly nothing to do with slavery. And they did not perish when the eighteenth century drew to a close. To the contrary, in the years to come, these essential constitutional ideas would become commonplace even in the very states that had once denounced them. The next chapter discusses this forgotten part of American history, which not one American in one hundred learned about in school. For Americans who are frustrated by the ongoing and evidently unstoppable expansion of government power, the example of states that dared to oppose the federal government’s violations of the Constitution might get them thinking. Which is probably why we never learn this material in the first place.
CHAPTER 3
American History and the Spirit of ‘98
BEFORE THEY TUMBLED DOWN THE ORWELLIAN MEMORY HOLE, the Principles of ’98 enjoyed a long and distinguished life in American history. Media spokesmen today, who as usual know none of the pertinent history, have tried to associate nullification with disreputable causes. Our public servants in Washington are only too glad to see this false version of our history peddled to American audiences, since it casts in a perverse light anyone who might wish to employ these great Jeffersonian principles today—if they were thought up and used by slaveholders for wicked purposes, what kind of extremist would want to bring them back? This chapter seeks to recover some of our lost history, both for its own sake and to detoxify the idea of nullification, an unjustly maligned Jeffersonian remedy.
We saw in chapter 2 that the Principles of ’98 had nothing to do with slavery, and that the key proponents of the states’ rights, strict-constructionist view of the Constitution were not known for sympathy to slavery. The evidence in this chapter amplifies that argument many times over. References to the Principles of ’98 over the six ensuing decades can be found all over the United States. “During conflicts between state and national authority,” writes a historian of the Virginia and Kentucky Resolutions, “reports and resolutions adopted by state legislatures, messages from state chief executives, opinions of state appellate courts, and speeches of leading citizens all ring with the words of the Kentucky and Virginia Resolutions.”1 In Virginia in particular, the Resol
utions were especially influential, forming the basis of legal education at the University of Virginia and the College of William and Mary until well after the Civil War.2 And as we shall see, it was the northern states, and not the southern, that had more frequent recourse to these Jeffersonian principles.
It was New England, for example, that cited the Principles of ’98 most insistently in the decades that followed the Virginia and Kentucky Resolutions. As the Napoleonic Wars raged in Europe in the early years of the nineteenth century, the rights of neutrals like the United States on the seas were increasingly disregarded, as both the British and French searched American ships for goods intended for the other side and seized any such cargoes. The British, furthermore, claimed the right to impress back into service any former members of the British navy they might find on board American merchant ships. In some cases, American citizens were seized. Jefferson, who sought to vindicate American rights, was sure that military action would be foolish, even suicidal. He chose economic warfare instead: in December 1807 he instituted an embargo that prevented American merchant ships from traveling to any foreign port anywhere in the world. The policy wound up having no effect on the behavior of Britain and France, but created great hardship and intense political opposition at home.
Jefferson’s embargo devastated New England’s maritime economy. New Englanders could take out insurance against seizure of their cargoes by Britain or France, but the complete cessation of international trade at the hands of Jefferson transformed their situation from challenging to impossible. The enforcement of the embargo was also a source of complaint: sweeping search powers, along with the authority to seize ships or even goods wherever they were to be found throughout the country on mere suspicion of intent to export, struck New Englanders as obnoxious and unconstitutional. Although protests were initially muted because the northern ports were frozen and commercial traffic was at a natural standstill, within months Jefferson faced the most intense opposition he had encountered in his two terms as president. We get a flavor of that opposition from the letters the third president received. The nicer ones condemned him as incompetent or a scoundrel. The nastier ones threatened him with assassination. One merchant urged him to “take off the embargo[,] return to Carter’s Mountain and be ashamed of yourself, and never show your head in publick Company again.”3 Another correspondent said the President had set “aside and trampled on our most dearest rights bought by the blood of our ancesters [sic]…. You can not be considered any thing but a curse to this Nation and the whole wrath and indignation of an injured people is pointed at you!”4 One especially desperate fellow wrote:
PRESIDENT JEFFERSON
I have agreed to pay four of my friends $400 to shoat you if you dont take off the embargo by the 10th of Oct 1808 which I shall pay them, if I have to work on my hands & nees for it. Here I am in Boston in a starving Condition. I have by working at jurney wurk got me a small house but what shall I git to eat? I cant eat my house & it is the same with all the Coopers. I cant git no work by working about on the warves for you have destroy’d all our Commerce & all the ships lie rotting in our harbours & if you dont take off the embargo before the 10 of Oct. you will be shott before the 1st of Jany 1809. You are one of the greatest tyrants in the whole world. You are wurs than Bonaparte a grate deel. I wish you could feal as bad as I feal with 6 Children round you crying for vittles & be half starved yours[elf &] then you would no how good it felt.5
Given the American colonists’ history of evading British taxation and regulation of their trade, we can hardly be surprised that a new wave of American smuggling greeted Jefferson’s policy. Goods were often transported to Canada and shipped from there instead. But it wasn’t just private individuals who resisted; it was also state governments. When a federal collector at Oswego requested help in enforcing the embargo, for instance, New York’s governor refused. For their part, the state courts of Rhode Island took action to prevent the detention of vessels.6
State opposition to the embargo on the grounds of its lack of constitutional sanction was also declared by means of formal protests. In January 1809, the Massachusetts legislature condemned the embargo as “in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state.” It promised to protect the people against it: “It would be derogatory to the honour of the commonwealth to presume that it is unable to protect its subjects against all violations of their rights, by peaceable and legal remedies. While this state maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the state government.” It urged its people only to “abstain from forcible resistance” until all peaceful remedies “shall have been exhausted in vain.”7
The following month, Governor Jonathan Trumbull of Connecticut spoke openly of state interposition: “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task—it is their right—it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.”8 The response of the Connecticut legislature, which supported the governor with vigor, deserves to be quoted at length:
Resolved, That to preserve the Union, and support the constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the Embargo.
Resolved, That this Assembly highly approve of the conduct of his Excellency the Governor, in declining to designate persons to carry into effect, by the aid of military power, the act of the United States, enforcing the Embargo, and that his letter addressed to the Secretary for the Department of War, containing his refusal to make such designation, be recorded in the public records of this State, as an example to persons, who may hold places of distinguished trust, in this free and independent republic.
Resolved, That the persons holding executive offices under this State, are restrained by the duties which they owe this State, from affording any official aid or co-operation in the execution of the act aforesaid.9
The following month the legislature of Rhode Island followed suit. It began by noting that “the dissolution of the Union may be more surely, and as speedily affected by the systematick oppression of the government, as by the inconsiderate disobedience of the people.” It then stated, as a matter of common sense, that “the people of this State” were “one of the parties to the Federal compact.” It was, therefore, “the duty of this General Assembly as the organ of their sentiments and the depository of their authority, to interpose for the purpose of protecting them from the ruinous inflictions of usurped and unconstitutional power.” Rhode Island’s resolutions read, in part:
Resolved, That the several acts of the Congress of the United States laying an embargo, by the permanent interdiction of foreign commerce, and by the numerous and vexatious restrictions upon the coasting trade, do, in the opinion of this General Assembly, infringe upon the undeniable rights and privileges of the good people of this State.
Resolved, That the act of Congress of the 9th of January last, enforcing the several embargo acts, is in many of its provisions unjust, oppressive, tyrannical and unconstitutional. Resolved, That to preserve the Union and to support the constitution of the United States, it becomes the duty of this General Assembly, while it is cautious not to infringe upon the constitution and delegated powers and rights of the General Government, to be vigilant in guarding from usurpation and violation, those powers and rights which the good people of this State have expressly reserved to themselves, and have ever refused to delegate.10
At the same t
ime that they set forth such a confrontational position, these states by and large insisted on their fidelity to the Union, a fidelity that required them to resist unconstitutional federal acts rather than acquiesce in them. They likewise urged their representatives and senators to work against the embargo and its oppressive and unconstitutional enforcement, and perhaps even to amend the Constitution to make the matter as clear as possible. But as they urged these peaceful remedies, they also insisted that the law in question was unconstitutional and void, and not legally binding.
Conflict between New England and the federal government persisted into the War of 1812. The New England states objected that the president could call upon the militias of the several states only for the constitutional purposes of “execut[ing] the laws of the Union, suppress[ing] insurrections and repel[ling] invasions.” To leave entirely within the hands of the president the determination of whether one of these exigencies actually held would, according to New England’s argument, efface the just rights of the governors over their own militias. Called upon to decide the question, several Massachusetts judges concluded that such a power of determination was indeed reserved to the states. No power was given to the president or Congress to decide whether “the said exigencies do in fact exist. As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia [i.e., the state governors].”11
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