In 21st century America, the idea of states declaring unconstitutional laws null and void, and resisting unconstitutional overreach of federal power, seems radical and even extremist to many citizens. But in fact, the idea of states nullifying unconstitutional federal acts rests on a philosophical foundation squarely in the mainstream of political thought for our nation’s founders.

And the Commonwealth of Kentucky sinks its roots deep into the soil of liberty.

In November 1798, the Kentucky legislature passed a series of  resolutions known as the Kentucky Resolutions of 1798, declaring the Alien and Sedition Acts passed by Congress “altogether void, and of no force.”

Who authored this radical resolution?

Thomas Jefferson.

Congress passed the Alien and Sedition Acts, actually four separate laws, in the summer of 1798. With winds of war with France blowing strongly, Congress passed the laws to expand federal power to prevent “seditious” acts from weakening the U.S. government.

The first law required aliens to remain residents in the U.S. for 14 years instead of five before becoming citizens. The second authorized the president to deport aliens “dangerous to the peace and safety of the United States” during peacetime. The third allowed for the arrest, imprisonment and deportation of any alien who was a citizen of an enemy nation during wartime. The final law declared any treasonable activity a high misdemeanor punishable by fine and imprisonment. Treasonable activity included “any false, scandalous and malicious writing.”

Based on this law, federal officials arrested 25 men, most editors of Republican newspapers. The law also effectively shut down their presses. Benjamin Franklin’s grandson was among those arrested. Benjamin Franklin Bache, editor of the Philadelphia Democrat-Republican Aurora, was charged with libeling President John Adams. Matthew Lyon was fined $1,000 and sentenced to four months in prison. He was a congressman from Vermont and the editor of the Republican paper known as The Scourge of Aristocracy. And a prominent Pennsylvania lawyer,  physician and  editor of the Northumberland Gazette served six months in prison for criticizing the Alien and Sedition Acts.

It doesn’t take a constitutional lawyer to see the violation of the First Amendment posed by this fourth law, known as the Sedition Act.  Other provisions in the laws proved equally constitutionally problematic, including granting judiciary power to the executive branch.

Kentucky acted quickly.

Governor James Garrard addressed the legislature on Nov. 7, 1798, saying the state, “being deeply interested in the conduct of the national government, must have a right to applaud or to censure that government, when applause or censure becomes its due.” He urged the legislature to declare its support for the U.S. Constitution, while “entering your protest against all unconstitutional laws and impolitic proceedings.”

Rep. John Breckinridge, of Fayette County, proposed the Kentucky Resolutions in the House of Representatives on Nov. 8, 1798. They passed on Nov. 10 and won unanimous concurrence in the Senate. Gov. Garrard approved the resolution on Nov. 16.

It wasn’t learned until some years later that Jefferson penned the resolutions. Virginia passed similar resolutions, authored by James Madison and the two likely collaborated to some degree.

The Kentucky Resolutions built their case against the constitutionality of the Alien and Sedition Acts on the 10th Amendment. In fact, Jefferson restates the amendment verbatim three times. “The powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people.”

Jefferson lays out the philosophical grounds for declaring the laws void in the first section.

Resolved, 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 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.

In section eight, Jefferson forcefully asserts the state’s right to nullify unconstitutional acts of the federal government.

…that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, 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, (casus non fœderis) 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.

Jefferson, and the legislators of Kentucky, feared the unfettered power of the federal government. That fear proved justified in light of the arrest of 25 men for merely expressing political opinion deemed inappropriate by the powers that be.

We live in a time of ever expanding federal power, and the threat to our liberties from an overreaching government is no less real today than it was in 1798. We have a federal government that would demand individuals purchase a service in health insurance; a federal government spending money with no oversight, spiraling the nation into ever deepening debt; a federal government creating rules and regulation through non-legislative and virtually unaccountable bureaucratic agencies. Our only remedy lies in standing up against this unconstitutional and dangerous intrusion into the affairs of the states and the people – standing up and telling the feds that we reject their unconstitutional acts.

And we must stop cowering in fear at the mere mention of federal power, as if the United States government were some omnipotent god to whom we must bow down and serve. We the people have forgotten that government operates by our will. We are not slaves, servants and serfs of the government. Government serves the people and exists only by the consent of the governed.

Those who would stand against the unconstitutional expansion of power are not the radicals. We stand firmly within the philosophical foundation upon which the United States was built. We are not the extremists. The Statists and progressives hold that honor. Let them take that mantel upon their shoulders. I reject it.

I will stand with Thomas Jefferson, who wrote:

“In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.“

Note: Take the time to click on the Kentucky Resolutions of 1798 link and read the entire Kentucky Resolution of 1798. It provides a brilliant look into the mind of one of our nation’s founders and his understanding of the Constitution. I will be writing more in the coming days on the philosophical underpinnings of the resolution, the effect of the resolutions,  as well as the Kentucky Resolution of 1799.

In 1798 Thomas Jefferson secretly drafted another declaration few know about...

by Derek Sheriff

Most Americans know that Thomas Jefferson was the principal author of “The Declaration of Independence”, the most important of all our founding documents.

Yet few of them have even heard of another document that I would say might be the second most important declaration he ever wrote: The Kentucky Resolutions of 1798. He drafted them secretly while he was serving as vice president. It was written in response to the hated Alien and Sedition Acts which were passed under the Adams administration during an undeclared war with France.

The acts authorized the president to deport any resident alien considered dangerous to the peace and safety of the United States, to apprehend and deport resident aliens if their home countries were at war with the United States, and criminalized any speech which might defame Congress, the President, or bring either of them into contempt or disrepute. You could compare it to the Patriot Act, but really it was much worse. Either way, The Alien and Sedition Acts were probably Thomas Jefferson’s worst nightmare.

Some people are surprised to learn that in response to these acts, Jefferson did not hold up the First Amendment in protest. Rather he invoked the Tenth Amendment, which states 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.”

Essentially, he argued that by passing and enforcing the Alien and Sedition Acts, the federal government had over stepped its bounds and was exercising powers which belonged to the states.

In other words, the Alien and Sedition Acts were acts of usurpation.

James Madison corresponded with Jefferson about these issues, (they suspected that their mail was being secretly opened and read by the way). As a result of their correspondence, James Madison penned another series of resolutions against the Alien and Sedition Acts, which were passed by the Virginia legislature in 1798 and 1799.

As important as these resolutions were in objecting to the unconstitutional Alien and Sedition Acts, their lasting importance was due to the the fact that they were strong statements in defense of federalism, the sovereignty of the people of the several states, and the authority of state governments to check or resist the tyrannical proclivities of the federal government.

Jefferson began the Kentucky Resolutions by explaining the exact nature of the relationship between the new federal, or general government and the states that predated it:

“Resolved, 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 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.”

These resolutions, authored by Jefferson and Madison, and passed by the Kentucky and Virginia Legislatures, came to be known as the Kentucky and Virginia Resolutions, or Resolves, of 1798. The ideas they expressed were later referred to as “The Principles of ’98″.

Over time, “The Principles of ’98″ would be invoked by many states, for a variety of issues. States invoked them to oppose everything from unconstitutional embargoes in 1807-1809, to the misuse of their militias during The War of 1812, the Second Bank of the United States in 1825, and the Fugitive Slave Acts of 1850.

Even today, The Principles of ’98 have been rediscovered and are being used by both Republicans and Democrats to address unconstitutional federal laws such as federal firearms regulations, Cap and Trade, REAL ID, Obamacare and Congressional “commerce clause” abuse in general.

The Principles of ’98, as expressed in Thomas Jefferson’s other declaration, The Kentucky Resolutions, are non-partisan in nature and are just as relevant today in 2010 as they were in 1798. All we have to do is rediscover and reassert them! Start talking to your state legislators about the Principles of ’98 today!

CLICK HERE – To read or listen to an audio presentation of Thomas Jefferson’s OTHER declaration — the Kentucky Resolutions of 1798!

CLICK HERE – To read more about how the Principles of ’98 were used by states throughout American history.

This article was originally featured on the website of United We Stand For Americans.

by David Sands

As early as 1796, the year of the first contested Presidential election, the battle lines were drawn. Although there were no formal political parties, there were loose coalitions of political thought, and as is the nature of any war, it came down to two sides: The Federalists, who preferred a more powerful national government, and the early beginnings of the Republicans, who favored a less powerful national government. Both parties recognized the need for a national government, but as always, the devil is in the details.

John Adams, the Federalist candidate, won the electorate by 3 votes. At that time the runner-up became the Vice President, and Thomas Jefferson represented the Republicans in that office. The Federalists retained control of Congress, and it didn’t take long for human nature to kick into gear. When given a little bit of power, most of us tend to use it to gain more power. We rationalize this abuse of power by claiming it is for the “greater good”. But just as we are witnessing the effects of political power run amok today, the first Americans also had to deal with this problem.

In 1798 Congress passed the Alien and Sedition Acts, a set of 4 laws that are eerily similar in nature to the kind of legislation we’re seeing today. The Alien Acts gave the President the power to detain, imprison, or deport individuals believed to be “dangerous to the peace and safety of the United States.” The Sedition Act made it a crime to publish “false, scandalous, and malicious writing” against the federal government. In fact, there were Republican journalists that were prosecuted and convicted under this law.

This was simply an early test of American federalism. Our contemporary debate is really pretty old. How much power should be given to the federal government? But as Thomas Jefferson pointed out, the real question is this: who gives the federal government the power in the first place? It’s fine to debate how much power the feds should have, but if we don’t understand where it comes from, we are destined for failure.

When these federal laws were passed in 1798, there were people who began talking about secession. Thomas Jefferson stepped in and worked behind the scenes to show people that there was a better solution. Remember, Jefferson was a Republican Vice President serving in a Federalist administration, so he couldn’t directly oppose this nationalistic trend. Instead, he covertly worked with James Madison to author state resolutions that would condemn these unconstitutional laws. Jefferson himself authored the Kentucky Resolutions of 1798 and Madison drafted the Virginia Resolution of 1798.

Both of these documents are extremely important to American federalism. Just as Jefferson intended, these resolutions laid the groundwork for the principles of nullification and interposition. His message was a reminder that “we the people” are ultimately in charge, not the federal government. The federal government derives its power from the people. It’s surprising to me that this was an issue as early as 1798.

David Sands is the local coordinator for the Blount County (TN) Tenth Amendment Center.

While speaking to a large crowd of over a thousand people on the campus of Arizona State University last December, Congressman Ron Paul mentioned one thing that might come about as the result of the federal government habitually ignoring the Constitution: Nullification.

About five minutes into the video segment which you’ll find below, he said, “There’s not much attention paid to the Constitution in Washington. There’s not much attention paid to it by our executive branch of government. And we don’t get much protection from our courts. So one thing that might finally happen from this if the people finally feel so frustrated that they can’t get the results out of Washington — They’re going to start thinking about options. They might start thinking about nullification and a few things like that.”

As someone who attended that rally and was doing my best to represent my state’s chapter of The Tenth Amendment Center, I know I cheered very loudly and was very pleased when the rest of the crowd applauded enthusiastically.

For anyone who is unfamiliar with the concept of state nullification, it was the idea expressed by then sitting vice president, Thomas Jefferson, when he authored what came to be called the Kentucky Resolutions of 1798. The resolutions made the case that the federal government is a creature of the states and that states have the authority to judge the constitutionality of the federal government’s laws and decrees. He also argued that states should refuse to enforce laws which they deemed unconstitutional.

James Madison wrote a similar resolution for Virginia that same year, in which he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state’s legislature is duty bound to interpose its power to prevent the federal government from victimizing its people. Very similar to Jefferson’s concept of nullification, Madison’s doctrine of interposition differed in some small but important ways.

These two documents together came to be known as The Virginia and Kentucky Resolutions (or Resolves), of 1798. Both were written in response to the dreaded Alien and Sedition Acts, and the phrase, “Principles of ’98″ became shorthand for nullification and / or interposition. Over time, “The Principles of ’98″ would be invoked by many other states, many times for a variety of issues.

Getting back to Ron Paul’s speech in December at ASU, Congressman Paul qualified his prediction about the revival of nullification by saying the following:

“But my suspicion is that there will never be official nullification or secession, but if the [federal] government continues to fail, and they can’t deliver anything..checks bounce..that we will be forced to take care of ourselves. And we will be forced to almost ignore everything they do.”

Less than a week after the speech I attended at ASU, Congressman Paul was interviewed by Mike Church on his radio show. When Mike asked him what his thoughts were on nullification, Ron Paul responded by saying:

“I think it’s a great idea. It was never really successful in our history. But I think it’s going to grow in importance. And I think it’s going to grow because the government, the federal government will be seen as inept and ineffective. And I think it’ll almost be de facto in the sense that the states will eventually just ignore some of the mandates.”

Here I would like to pause for a moment and point out that I am not usually in the business of disagreeing with Congressman Ron Paul. I would hardly need one hand to count the number of times that I have actually disagreed with him on any issue of real substance. I am a great admirer and supporter of Congressman Paul, who is undoubtedly very supportive of the idea of state nullification, even if he has doubted its efficacy in the past. However, in spite of all this, I would like to make two observations.

First, nullification has, in fact, been somewhat successful in the past and more recently as well. Second, as President Obama loves to say, “Let me be clear”: “Official” nullification has ALREADY HAPPENED.

Before I explain why “official” nullification has already happened, let me briefly give some examples of what nullification is NOT.

Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.

So just what IS “official” nullification you might be asking?

Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, which is passed by both houses and is signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.

Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights by acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.

With the exception of a Constitutional amendment, the federal government cannot oppose (except perhaps rhetorically), a state’s decision to nullify an unconstitutional federal law without resorting to extra-legal measures. But such measures would more than likely backfire, since most Americans still affirm that might does not make right.

There is no question as to whether or when “official” nullification will happen: It has ALREADY HAPPENED. In fact, not only has it happened recently, it has been a success! Perhaps this is why the federal government hopes you will never hear about it. According to the Tenth Amendment Center:

“25 states over the past 2 years have passed resolutions and binding laws denouncing and refusing to implement the Bush-era law [REAL ID Act]..While the law is still on the books in D.C., its implementation has been “delayed” numerous times in response to this massive state resistance, and in practice, is virtually null and void.”

But that’s not all; another example of “official” nullification has occurred in the form of an unlikely states’ rights ally: Medical marijuana.

There was a time when the federal government took the Constitution seriously enough that Congress did what is required in order to enact a nationwide ban on a substance. Even though the experiment would eventually be seen by most Americans as a mistake and a failure, the 18th Amendment was passed and the era known as “Prohibition” began. Four years later, it was repealed.

When it came to marijuana prohibition, however, the feds had another trick up their sleeve. All three branches of the federal government would agree on a very novel, liberal interpretation of the “commerce clause” which would allow them to regulate virtually any substance, including marijuana, even though there’s supposedly no “legal” commerce in the plant. Since that time, the federal government has managed to claim, with a straight face, as it were, that a plant grown in your back yard, never sold, and never leaving your property, is somehow able to be completely banned by the federal government under the interstate “commerce clause.” The only problem with their claim is that the states just aren’t buying it.

Fourteen states have actively refused to comply with federal laws on marijuana, and it looks as if six more are about to join the effort. In a recent blog post, Mark Kreslins observes:

“..medical marijuana now poses a real threat to the enforcement power of the Federal Government. With state after state defying Washington DC over this issue..Washington DC has a choice to make; enforce their laws based on a very liberal interpretation of the Commerce Clause by sending thousands of DEA agents into all fifty states…or…look the other way. Thus far, they’ve chosen to look the other way for if they create the appearance of a Federal takeover of police powers in the States, they will fully expose their extra-constitutional behavior and provoke a direct confrontation with the States who will use the 10th Amendment (hopefully) to defend their prerogatives.”

Whatever your view may be regarding marijunana use, medical or otherwise, one thing is apparent: “Official” nullification has happened, and it works! Washington will have to get used to it.

What remains to be seen, however, is whether in addition to “officially” nullifying unconstitutional federal laws, state governments will be willing to use their power to “officially” interpose themselves between agents of the federal government and the people of their state. In the unlikely event that one or more branches of the federal government decides to take extra-legal measures to punish residents of a state for exercising their constitutional rights in defiance of unconstitutional federal laws, will that state’s government have the courage to hamper or even neutralize such extra-legal measures?

There are a whole host of peaceful actions that a state government can adopt if that day comes or appears to be just over the horizon. These measures range from county sheriffs requiring that federal agents receive written permission from the sheriff before acting in their county, to setting up a Federal Tax escrow account, which could potentially de-fund unconstitutional federal activities by requiring that all federal taxes come first to the state’s Department of Revenue.

Besides state interposition, the other thing Washington would have to consider, is whether enough of their agents would actually obey orders to punish people for exercising their constitutional rights. There is a significant chance that enough of them would either publicly or privately decide in advance to ignore such orders. As the probability of this increases, it becomes more likely that Washington will not risk overplaying its hand. The reality is that Washington just doesn’t have the manpower to enforce all their unconstitutional laws if enough states choose to defy them.

Of course, it all depends on the people of the several states: ordinary people like you and I. Although I’ve discovered that there are more elected representatives at the state level who are committed to acting in a courageous and principled manner than I ever dared hope, most of their peers lack such a brave commitment. Most of them will stick their head in the sand or sit on the fence until they determine which way the wind is blowing. And so it’s our opinion, not the opinion of the American people in aggregate, but our opinion as citizens of our respective states, that will influence the decision of our state representatives to either stand tall or to kneel down and knuckle under.

But do you even know the men and women who represent you? I’m not talking about those who represent you in Washington, but rather in Phoenix, Salem, Sacramento, Salt Lake City, Denver, Austin, Oklahoma City, Tallahassee, Atlanta, Nashville, Richmond, Harrisburg, Indianapolis, Columbus and Springfield.

If you don’t know them, and you care about our republic, you should make it your highest priority to get to know them and establish rapport with them as soon as possible.

For any of you who really want to preserve our union, and at the same time retain your rights guaranteed by the Bill of Rights, I can’t say it any better than 2008 presidential nominee of the Constitution Party, Chuck Baldwin:

“..it is absolutely obligatory that freedom-minded Americans refocus their attention to electing State legislators, governors, judges and sheriffs who will fearlessly defend their God-given liberties..as plainly and emphatically as I know how to say it, I am telling you: ONLY THE STATES CAN DEFEND OUR LIBERTY NOW! ..this reality means we will have to completely readjust our thinking and priorities.”

“The several states composing the US. of America are not united on the principle of unlimited submission to their general government…”
–Thomas Jefferson in the Kentucky Resolutions of 1798

William J. Watkins, Jr., Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (New York: Palgrave Macmillan, 2004).

Ask the typical undergraduate to discuss the ideas advanced in the Virginia and Kentucky Resolutions of 1798 and you may as well be asking for an overview of the Copenhagen interpretation of quantum physics. Yet these nearly forgotten documents fully merit a place among the most important political writings in American history, both in terms of the ideas they put forth and the influence they had on subsequent generations of American political thinkers. That’s why William Watkins’  book is something to celebrate.

The Resolutions in effect posed and sought to answer a series of fundamental questions. How is the central government to be restrained? Are frequent elections and internal checks and balances sufficient, or does the limitation of federal power require still more institutional safeguards? Which institution, if any, possesses the definitive word on constitutional disputes between the federal government and the states?

To the suggestion that the Supreme Court was the ultimate arbiter, the drafters of these documents had yet another question: how can the federal courts function as impartial umpires between the federal government and the states when they themselves are part of the federal government?

Watkins skillfully guides the reader through the context within which the Virginia and Kentucky Resolutions were drafted. The Alien and Sedition Acts of 1798, passed during the Quasi War with France, alarmed Thomas Jefferson, James Madison, and the Republican Party in general. The alien legislation, which authorized the president to deport resident aliens who had “treasonable” leanings, was a source of concern to Jefferson and other Republicans; Jefferson believed the legislation was aimed at Albert Gallatin, the important Pennsylvania Republican, who had been born in Geneva. (He later became Jefferson’s own treasury secretary.)

But it was the prohibition of seditious libel that concerned them most. For Jefferson, it wasn’t only that this prohibition would be enforced in a partisan way that made it objectionable – though of course it was, with Republican newspapers and spokesmen targeted for harassment, fines, and even jail time. (Watkins refers to correspondence between Jefferson and Madison at the time in which they express concern that someone might be tampering with their mail.) And it wasn’t that seditious libel could be arbitrarily or loosely defined – although, again, in practice it was: one poor soul, who expressed the fond wish that the presidential saluting cannon would “hit [President John] Adams in the ass,” was fined $100.

The primary issue was the acts’ dubious constitutionality. Jefferson based part of his objection on their violation of the First Amendment, but noted that they violated the Tenth Amendment as well. Nowhere had the states delegated any authority to the federal government to pass legislation pertaining to the freedom of speech or press. In doing so, then, the federal government had encroached on a state prerogative. For Jefferson, who spoke of binding men by the chains of the Constitution, immediate action was necessary lest such federal usurpations begin to multiply.

Was there a constitutional remedy – that is, a solution short of the extreme measures of secession or violent revolution? As far as Jefferson was concerned, there had to be. And that constitutional remedy, as so often in Jefferson’s political philosophy, involved the states. Given that the states were the constituent parts of the Union, and had enjoyed an independent existence long before the Constitution had come into effect, they had to have some measure of protection against the federal government.

Certainly the federal government could not be permitted to have the exclusive authority to make authoritative judgments about the Constitution, since the obvious long-term consequence would be the eventual concentration of power in the federal government as it consistently handed down rulings in favor of itself.

The states had to be able to make their own interpretations of the Constitution, to which they themselves had acceded, count for something. Even the centralizing Alexander Hamilton had envisioned a role for the states in restraining the federal government, arguing in Federalist #28 that “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”

As far as Jefferson could see, the only way in which a state could both remain in the Union and retain its liberties in the face of an unconstitutional act on the part of the federal government was for the state to declare that by virtue of its being unconstitutional, the federal action was null and void and would not be enforced within the borders of that state. (He and others did indeed entertain and reply to the various objections to such an idea.)

An anonymous Jefferson (who was vice president at the time) penned what became known as the Kentucky Resolutions of 1798, which spelled out the objectionable aspects of the Alien and Sedition Acts as well as the states’ rightful response: nullification.

Madison penned similar resolutions that were approved by the Virginia legislature. Although Virginia and Kentucky found little support in other states for these ideas in 1798, with the passage of time all sections of the country would appeal at one time or another to what became known as the “Principles of ’98.”

You may have noticed that these ideas are rather out of fashion today on both left and right. Watkins, however, identifies these ideas as absolutely fundamental to American liberty and as legitimate means, faithful to the spirit of the Constitution, of preventing the expansion of the federal government.

Watkins could have strengthened still further his case that the Principles of ’98 merely vindicated older and settled doctrines about the nature of the federal Union by referring to some of the recent scholarship of Kevin Gutzman, a professor of history at Western Connecticut State University.¹ Gutzman has shown, contrary to the contentions of Straussians, neoconservatives, and left-liberals alike, that nullification was not simply a doctrine that Jefferson and Madison contrived out of nowhere as an ad hoc response to the threat to civil liberties posed by the Alien and Sedition Acts.

To the contrary, the line of thought that culminated in the Resolutions of 1798 can be traced all the way back to the Virginia ratifying convention, where its central principles were laid out by prominent Virginia Federalists. (That’s right: Virginia Federalists set forth these doctrines.)

The context was as follows. At the Virginia ratifying convention, Patrick Henry expressed his fear that the “necessary and proper” clause of the Constitution (which said that the federal government would have all powers “necessary and proper” to carry into effect the powers granted in Article I, Section would inevitably be interpreted by the federal government as a boundless grant of power, transforming the limited government that supporters of the Constitution promised into an unlimited government that would menace the people’s liberties. He was likewise concerned about the “general welfare” clause, since government could justify practically any action it might take by some strained reference to the general welfare.

Edmund Randolph, the leading Federalist speaker at the convention, argued that Henry’s fears were unfounded. Those phrases could not have the expansive meaning that Henry attached to them because, Randolph explained, the only powers possessed by the federal government would be those expressly conceded to it by the states. “All rights are therein declared to be completely vested in the people, unless expressly given away,” he said. “Can there be a more pointed or positive reservation?”

Randolph belonged to a committee of five men whose task it was to draft the ratification instrument – that is, the statement by which Virginia would officially ratify the Constitution. George Nicholas, another member of the committee, told the convention that if Virginia assented to the Constitution it would do so on the basis of the clear and manifest meaning of that document.

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted – I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

By the slimmest of margins the Virginia convention went on to ratify the Constitution, but on the terms of their instrument of ratification, whose exegesis they had heard from Randolph and Nicholas. They had announced to the people of the other states how they understood the document, and that Virginia should be exonerated from it should the new government stray from this understanding. They had acceded to a compact establishing a federal government that possessed only those powers expressly granted to it and no more.

Already in 1790 Virginia was expressing its displeasure with the direction of the federal government. Alexander Hamilton had proposed federal assumption of the state debts, in order to bind the wealthy more closely to the success of the new federal government. (In other words, the wealthy would have a vested interest in the success of the new government since if it failed, their bonds would be worthless.)

Patrick Henry introduced into the Virginia state legislature a resolution, approved by both houses, calling Hamilton’s plan “repugnant to the Constitution…as it goes to the exercise of a power not expressly granted to the General Government.”

As the decade progressed, John Taylor of Caroline kept up this posture of vigilance vis-à-vis the federal government. What is more, Taylor argued that the state legislatures had the authority and indeed the duty to enforce the original understanding of the Constitution, and to prevent the federal government from usurping the reserved powers of the states.

As Gutzman puts it, Taylor envisioned state legislatures acting “as Americans have now come to think it is normal for the United States Supreme Court to act.” Thus when Jefferson and Madison penned the Virginia and Kentucky Resolutions of 1798, they were not introducing any radically new doctrine but merely drawing out the logical conclusions of a vigorous intellectual tradition traceable to the Virginia ratifying convention.

And it is that intellectual tradition that this book describes and vindicates so effectively. Reclaiming the American Revolution is a relatively short book, but it contains scarcely a wasted word. In some ways, it is a miniature American history in itself, as Watkins takes us on a tour of the nation’s past through the lens of the Resolutions.

In the manner of James J. Kilpatrick’s unfortunately out-of-print classic, The Sovereign States, Watkins provides example after example of acts of state resistance to the federal government, recreating for us a time when the states were genuine actors in a constitutional drama. He likewise sketches the process by which political consolidation, the evil that the Jeffersonians sought above all else to avoid, triumphed over the Principles of ’98 in the decades following Reconstruction and during the twentieth century in particular.

As many readers of here well know, one important aspect of this process involved the Supreme Court’s increasingly expansive interpretation of the Constitution’s interstate commerce clause, such that practically everything came to be defined as “interstate commerce” and therefore subject to federal regulation. Reclaiming the American Revolution contains the best short discussion of the original intent of the commerce clause, and its subsequent perversion, that I have read. (He also discusses the clause’s relevance to such present-day controversies as medical marijuana and federal hate-crimes legislation.)

William Watkins has won the praise and admiration of a wide array of very fine scholars – Reclaiming the American Revolution carries some very high-powered academic endorsements – while nevertheless making clear his own sympathy for a political tradition that could hardly be less fashionable in academia (or, for that matter, in modern politics). It will take a lot more than good scholarly work to reverse the century and a half of political centralization through which the United States has passed, but in the meantime we can use excellent books like this one as a moral rebuke to those who, in defiance of American law and tradition, aid and abet the aggrandizement of the central state.

Watkins has done a superb job of reopening what the establishment considers closed questions. That, really, is what people in this orbit consistently seek to do: not to debate the minutiae of this or that policy proposal, but to raise and explore fundamental issues that the establishment would prefer not to discuss. That’s why we read here every day, and it is why the serious student of liberty needs to read this book.

1. In particular, see Kevin R.C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” Review of Politics 66 (Summer 2004): 469–97; K.R. Constantine Gutzman, “The Virginia and Kentucky Resolutions Reconsidered: An Appeal to the ‘Real Laws’ of Our Country,” Journal of Southern History 66 (August 2000): 473–96.

Thomas E. Woods, Jr. [visit his website; send him mail] is a senior fellow at the Ludwig von Mises Institute. He is the author of nine books, including two New York Times bestsellers: Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse and The Politically Incorrect Guide to American History. Read Congressman Ron Paul’s foreword to Meltdown.

Copyright © 2005 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

In 1798, the legislatures of Virginia and Kentucky approved resolutions that affirmed the states’ right to resist federal encroachments on their powers. If the federal government has the exclusive right to judge the extent of its own powers, warned the resolutions’ authors (James Madison and Thomas Jefferson, respectively), it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. The Virginia Resolutions spoke of the states’ right to “interpose” between the federal government and the people of the state; the Kentucky Resolutions (in a 1799 follow-up to the original resolutions) used the term “nullification” – the states, they said, could nullify unconstitutional federal laws.

These ideas became known as the “Principles of ’98.” Their subsequent impact on American history, according to the standard narrative, was pretty much confined to South Carolina’s nullification of the tariffs of 1828 and 1832. That is demonstrably false, as I shall show below. But it isn’t just that these ideas are neglected in the usual telling; as I discovered not long ago, these principles are positively despised by neoconservatives like Max Boot and the leftists at the New York Times (or do I repeat myself?). Neither one, in their reviews of The Politically Incorrect Guide to American History, so much as mentioned Jefferson’s name in connection with the Principles of ’98. It is hard to view such an omission as anything but deliberate. To mention Jefferson’s name is to lend legitimacy to ideas that nationalists of left and right alike detest, so they simply leave him out of the picture.

Jefferson once wrote, “When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated.” To resist this centralizing trend, the sage of Monticello was convinced, the states needed some kind of corporate defense mechanism.

Our betters have already told us that the only reason anyone might wish to vindicate the cause of states’ rights is for the purpose of defending slavery or upholding some lesser form of local oppression. What follows is the tip of the iceberg of the history that, by what I shall assume is an entirely well-meaning and innocent oversight, these great scholars of American history consistently fail to acknowledge.

The Embargo of 1807-1809

In retaliation against British and French depredations against American neutral rights on the seas, the federal government under Thomas Jefferson in late 1807 declared an embargo, according to which no American ship could depart for any foreign port anywhere in the world. (The rationale was that trade with the U.S. was a key ingredient in British and French prosperity, and thus that economic pressure might persuade them to change their policies.) The U.S. Navy was granted the power to stop and search any ship within U.S. jurisdiction if its officers had “reason to suspect” the ship was violating the embargo. Likewise, customs officials were “authorized to detain any vessel…whenever in their opinions the intention is to violate or evade any provisions of the acts laying an embargo.” Such standards fell far short of the “probable cause” requirement that generally governed the issuing of warrants for searches.

New England was especially hard hit by the embargo because so many of its people were employed either directly in foreign commerce or in proximate fields, and it was there that opposition to the policy was concentrated. In 1808 a federal district court, in the case of United States v. The William, ruled the embargo constitutional. The Massachusetts legislature begged to differ. Both houses declared the embargo acts to be “in many particulars, unjust, oppressive, and unconstitutional.” “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,” they said. The embargo, furthermore, was “not legally binding on the citizens of this State.”

In the midst of the crisis, a New York congressman, giving his explicit sanction to the Virginia and Kentucky Resolutions, said, “Why should not Massachusetts take the same stand, when she thinks herself about to be destroyed?” “If any State Legislature had believed the Act to be unconstitutional,” asked a Connecticut congressman, “would it not have been their duty not to comply?” He added that the state legislatures, “whose members are sworn to support the Constitution, may refuse assistance, aid or cooperation” if they regarded an act as unconstitutional, and so could state officials.

Connecticut governor Jonathan Trumbull shared these views. “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.” Connecticut’s General Assembly passed a resolution that, among other things, directed all executive officials in the State not to afford “any official aid or co-operation in the execution of the act aforesaid.”

The General Assembly furthermore declared: “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.”

Rhode Island, when the embargo was at its end, declared that her legislature possessed the duty “to interpose for the purpose of protecting [the people of Rhode Island] from the ruinous inflictions of usurped and unconstitutional power.”

Interposition – the language of the Principles of ’98.

The War of 1812

During the War of 1812, Massachusetts and Connecticut were ordered to call out their respective militias for the purpose of defending the coast. The call derived from the federal government’s authority to call the state militias into service “to execute the Laws of the Union, suppress Insurrections and repel invasions.”

Massachusetts Governor Caleb Strong, however, maintained that the states reserved the power to determine whether any of these three conditions held. At Strong’s request, the Massachusetts Supreme Court offered its opinion. That court agreed with the governor: “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.”

Connecticut followed suit:

It must not be forgotten, that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic. The governor of this state is under a high and solemn obligation, “to maintain the lawful rights and privileges thereof, as a sovereign, free and independent state,” as he is “to support the constitution of the United States,” and the obligation to support the latter, imposes an additional obligation to support the former.

Thus if the militia were called out for any purpose but those listed in the Constitution, it “would be not only the height of injustice to the militia…but a violation of the constitution and laws of this state, and of the United States.” The president had no authority to call upon the militia of Connecticut “to assist in carrying on an offensive war” (some New Englanders were convinced that the war was aimed primarily at the annexation of Canada). Connecticut would not comply with the federal order until New England should be threatened “by an actual invasion of any portion of our territory.”

From a political point of view, the War of 1812 would wind up essentially a draw, and the Treaty of Ghent signed in December 1814 reestablished the status quo ante bellum. From a military point of view, though, it was a British rout. As a result, Congress seriously entertained the prospect of military conscription.

Here is where Daniel Webster, so often a villain in American history, emerges as positively heroic. With his usual eloquence he spoke out against military conscription as incompatible with both the Constitution and the principles of a free society. “Where is it written in the Constitution,” he asked, “in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?” (Predictable quarters can now be expected to call Daniel Webster – than whom there was no greater or more eloquent defender of the federal Union – an unpatriotic, America-hating leftist.)

What did Webster think should be done if the conscription bill should pass? In that case, he said, it would be “the solemn duty of the State Governments to protect their own authority over their own militia, and to interpose between their citizens and arbitrary power.” Interposition – the language, once again, of the great resolutions of ’98.

In December 1813 a new and more obnoxious embargo than that of 1807-1809 was instituted. The Massachusetts legislature found itself inundated with petitions and statements of grievances. A special committee, headed by William Lloyd, was established to devise a response to the situation. The Massachusetts General Court approved the committee’s report early the following year. It read, in part:

A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.

Need we point out yet again the language of the Principles of ’98?

Fugitive Slave Laws

At a time when the federal government was using its police powers to enforce the capture of runaway slaves, it was the state governments, expressly recalling the Principles of ’98, that determined to resist. (See Mark Thornton here [.pdf] on how the federal government socialized the costs of slaveholding.) Although the Constitution did, unfortunately, contain a clause calling for the return of runaways, some Northern states resorted to the argument that that document spelled out no particular enforcement mechanism behind that requirement.

In addition, the Fugitive Slave Act of 1850 was especially obnoxious and repugnant. It placed all fugitive slave cases under federal jurisdiction. Fugitives were denied jury trials and the right to testify in their own defense. Special commissioners were empowered to determine the guilt or innocence of the accused, and according to the terms of the act were to be paid $10 if they found the accused fugitive guilty and only $5 if they found him innocent. Still more obnoxious features included the right to force bystanders to participate in the capture of a fugitive and stiff penalties for sheltering or obstructing the capture of a fugitive.

Several Northern states simply refused to comply. Especially interesting is this 1859 statement of the Wisconsin Supreme Court – taken, in parts word for word, from the Kentucky Resolutions of 1798:

Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties 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.

Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, 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 which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.

Many more examples of the ongoing relevance of the Principles of ’98 could be cited. In the midst of a dispute with the federal government over the Second Bank of the United States, the Ohio legislature voted to affirm the Principles of ’98. In 1825, Kentucky’s governor said: “When the general government encroaches upon the rights of the State, is it a safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not? In fact, most of the encroachments made by the general government flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors. It is therefore believed to be the right, as it may hereafter become the duty of the State governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience to the unconstitutional mandates of the federal judges.”

These are facts. They are facts that constitute a central part of antebellum American history. Yet to say that the standard American history text does not trace the influence of the Principles of ’98 over the course of the ensuing years, as I have done all too briefly here, would be the understatement of the century. The profession at large has essentially ignored the issue; other than Bill Watkins’ excellent study, you’d be hard-pressed to find a single book-length treatment of the Virginia and Kentucky Resolutions of 1798 over the past hundred years.

Thus when I resurrected these long-neglected ideas in chapter four of The Politically Incorrect Guide to American History, did this inclusion merit the praise of your average scholar? To the contrary, the general complaint was that I hadn’t spent more time on subjects people already know inside and out. As for the Principles of ’98 themselves, discussing them with left- or right-wing nationalists is like waving garlic before Dracula.

Not that raising the issue makes them clam up entirely. To the contrary, they’ll find some silly photos of you (which, I confess, exist in embarrassing abundance), or dredge up something you did or said a dozen years ago, or generally suggest you’re a bad person. (Everyone who’s ever met me knows I’m just a great big meanie.)

They may behave this way because they think doing so will make me shut up (no such luck there), but it’s also a lot easier than cracking a book on a subject they don’t seem to know the first thing about.

Thomas E. Woods, Jr. [send him mail] is senior fellow in American history at the Ludwig von Mises Institute. He is the author of nine books, including the New York Times bestseller The Politically Incorrect Guide to American History and, most recently, Meltdown: A Free-Market Look at Why the Stock Market Collapsed, the Economy Tanked, and Government Bailouts Will Make Things Worse. Visit his new website.

Copyright © 2005 LewRockwell.com