When ratification of the Constitution was still up in the air, James Madison and others wrote a series of papers about how things would work. In one, Federalist #46, Madison laid out a clear plan – a blueprint – for what was needed to keep the federal government in check when words on paper wouldn’t do the job.
Surprisingly, James Madison didn’t advise using as a first response to federal overreach – what are known as the most vaunted parts of the American system. That is, voting bums out, suing in federal court, or demanding that federal politicians repeal their own laws.
Instead, James Madison advised a series of four actions by individuals and states.
1. Protest on a large scale. Madison called it “disquietude of the people”
2. Noncompliance. Madison recommended disobedience in general and “a refusal to cooperate with officers of the Union.”
3. Outspoken Governors. Madison advised what he called “frowns of the executive of the State” to build awareness in the general public.
4. State legislation. Madison said “legislative devices” should be used in the states. That is, passing resolutions or bills as needed to counter federal power.
James Madison told us that using these steps together in multiple states would be extremely effective against the federal government. He wrote that doing so
“present obstructions which the federal government would hardly be willing to encounter.”
This advice was written in a time when the federal government did very little. Today, when the federal government is active in nearly all areas of life, James Madison’s blueprint will have far more impact and success than it did in his day.
That’s because Washington D.C. relies on support and cooperation from the states for almost everything. As the National Governor’s Association put it, states are partners with the federal government on “most federal programs.”
Partnerships don’t work too well when half the team quits.
In other words, if individuals and states protest and refuse to participate on a wide scale, there’s very little the federal government can do about it.
A little-known Founder from Massachusetts made the case, just like James Madison did, that the states were the strongest check on federal power should they work together to oppose it
Theophilus Parsons wrote that the state legislatures were, “superior to all the parchment checks that can be invented.”
In other words, no matter how you try to balance federal power among various federal branches, they’re all still part of the same entity, the federal government. And if you have a problem with the federal government, you need something outside the federal government to stop it.
Parsons taught us that this mechanism is the states. And when they’re organized in opposition against federal acts, he wrote that “none but madmen would attempt a usurpation.”
Even Alexander Hamilton agreed. In Federalist #28 he wrote that State governments would offer security against “invasions of the public liberty by the national authority.”
The common thread from Madison to Parsons and even Hamilton is that states are an essential part of the checks-and-balances of the Constitution. They are a counteracting force, especially when two or more branches of the federal government work against us. When states take action, they’re extremely effective as a roadblock to increasing federal power.
During the summer of 1798, Congress passed four laws together known as the Alien and Sedition Acts. These laws represented a gross exercise of power never delegated to congress.
Thomas Jefferson drafted the Kentucky Resolutions and the state legislature passed a revised version of them on Nov. 10, 1798. Asserting that “the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government,” Jefferson proclaimed that nullification was the proper response to deal with all federal overreach. In his original draft, he wrote:
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
On Dec. 24, 1798, the Virginia Senate passed similar resolutions penned by James Madison, further asserting not just the right, but the duty of states to step in and stop the federal government. He wrote:
“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.”
Taken together, the Kentucky and Virginia Resolutions lay out the principles of nullification. That is, state-level resistance as a duty to stop federal power.