EDITOR’S NOTE: Kevin Gutzman will be a featured speaker at Nullify Now! Austin. Get tickets here or by calling 888-71-TICKETS

*******

Thomas E. Woods, Jr., Nullification: How to Resist Federal Tyranny in the 21^st Century (Washington, DC: Regnery Publishing, 2010), 309 pp., Appendix.

Thomas E. Woods, Jr., author of such smashes as Meltdown, The Politically Incorrect Guide to American History, and The Church and the Market, has done it again. After reconciling Catholic teaching and free-market economics and after explaining how violation of free-market principles brought on the current depression, Woods here takes on the central issue of our day: what to do about out-of-control government.

Under today’s constitutional law, the “Federal” (really now national) Government can do anything it wants. Nancy Pelosi literally laughs at the implication that it cannot. For anyone who knows history and loves liberty, this is a worrisome situation.

What to do?

Woods’s answer is to dust off the Jeffersonian tradition of nullification. Nullification lays out the argument for nullification’s constitutionality, describes historic and contemporary instances in which the doctrine has been and is being employed, and advocates that it be used more widely today. Finally, in a very useful appendix, Woods provides some of the classic nullification documents from days gone by. The appendix serves both to arm the reader with pro-nullification arguments and to illustrate the variety of circumstances to which it has been applied.

In his first chapter, “The Return of a Forbidden Idea,” Woods describes the situation we now face as “the ongoing and evidently ceaseless exercise of unconstitutional powers by the federal government.” (p. 19) By reference to the Bring the Guard Home movement, Firearms Freedom Acts, and medical marijuana acts that have been considered and/or adopted in literally dozens of states these past few years, Woods shows that there is an impulse afoot in America to restore the constitutional system. Maybe elite academics have agreed among themselves that the Constitution gets in the way of their bottomless urge to do good, but the people never agreed. They are beginning to bestir themselves from a long constitutional slumber.

Nullification, Woods shows in his second chapter, is the “rightful remedy” to the illness of tyranny. And that is the right word to denote the Federal Government in the current situation: “tyranny,” the ancient Greeks’ word for unconstitutional rule. Note that a tyrant need not be malevolent, he merely must rule unconstitutionally — as the Federal Government does today.

Wordsmith Woods calls the question of the relationship between the government’s behavior and the Constitution’s allocation of powers “the Great Unmentionable.” (p. 21) Federal and state officials alike commonly ignore the question of the Constitution. It is the great and powerful Oz, to be feared despite its powerlessness.

Yet, resignation in the face of usurpation is not the American tradition. Rather, the people who made the Revolution insisted that their colonial legislatures had the primary role in their self-governance, and that the British government shared governmental functions only for the colonists’ convenience. This view was most clearly developed in Virginia, where Richard Bland, Thomson Mason, Landon Carter, and finally Thomas Jefferson elaborated it in the 1760s and 1770s.

This Virginia doctrine, which we can join Woods in calling “Jeffersonian,” did not change with the coming of independence, the Articles of Confederation, or the US Constitution. Those people, and their counterparts in other states, insisted that the Articles affirm that their state retained its sovereignty. They also wrung from nationalists in the Philadelphia Convention a document that retained the federal — not national — nature of the government on which they had long insisted.

That is why in state after state, leading Framers and Ratifiers such as the governors of North Carolina and Virginia and the two chief authors of The Federalist promised that the new government would have only the powers “expressly delegated.” It is also why the Virginia General Assembly protested the adoption of laws that Congress had not been expressly delegated power to adopt from the very first Congress.

The first decade under the current constitution saw one party, the Federalist Party, attempt to remake the US Government into a national government. Like John McCain and Russ Feingold today, John Adams and his allies in Congress wanted to regulate citizens’ criticism of federal officials. In response, Jefferson and his Republican allies promulgated legislative resolutions, the Virginia and Kentucky Resolutions of 1798, setting out their understanding of the limited nature of the delegations of power the states had made in creating the Federal Government. In case the new government tried to grab more power, those two states said, the states “have the right, and are in duty bound, to interpose.” Kentucky, in answering criticisms of its first set of resolutions, adopted a second set the next year saying that in case of unconstitutional and dangerous federal policy, “a nullification … is the rightful remedy.”

The great contribution of Nullification is to show how the Jeffersonian reading of the Constitution resonates today. The short of it, as Woods explains in Chapter 3, “American History and the Spirit of ’98,” is that this Jeffersonian reading of the Constitution was long the majority position in American politics. In fact, from the Virginia and Kentucky Resolutions’ promulgation in 1798 to Franklin Roosevelt’s decision to renege on his 1932 campaign pledges of limited government, most federal elections were won by parties standing for the Jeffersonian view.

Woods is at his acerbic best in describing the campaign of distortion and slander Establishment figures now maintain against the idea of nullification. The distortion lies in their inaccurate insistence that Jefferson and Company invented nullification in 1798 in response to specific circumstances, when in fact the resolutions of 1798 were merely the latest iteration of a long-standing tradition; the slander lies in their attempt to tie all invocations of the right of nullification to the defense of slavery.

Not only was slavery not the issue in 1798, but it was not the issue when nullification was employed in 1809, or when it was brought up in the 1810s, or when it was used in the 1820s, or when it was invoked in the 1830s. Slavery was the issue when states were nullifying in the 1850s, but the nullification was undertaken on behalf of supposed fugitive slaves by abolitionists in those cases. Woods does a masterful job in explaining how nullification has been used in behalf of free elections, free speech, and freedom of the press (1798-1801), against conscription (during the War of 1812), in behalf of free trade (in the 1820s and ’30s), and in favor of due process for blacks.

When Woods uses the word “nullification,” he does not necessarily have in mind formal legislative resistance to federal policy in the mode of the Carolina Nullifiers of 1832-33. Rather, he is thinking of a range of less confrontational measures, from simple refusal by state authorities to respect federal edicts, through adoption of state laws in conflict with federal policy (such as medical marijuana laws), to adoption of state laws claiming control over areas of policymaking that Congress has long since arrogated to itself (such as Firearms Freedom Acts).

As he notes in his last chapter, “Nullification Today,” Woods realizes that these ideas will jar people who are trained in “constitutional law.” After all, he says, that “law” takes as its starting point the assumptions that Congress can do essentially whatever it wants and that state Executive and Judicial departments are more or less subordinate to their federal counterparts. Yet, he again reminds, Thomas Jefferson, James Madison, and a host of other eminent philosopher-statesmen of the Revolution and Early Republic never understood things that way.

So far as they were concerned, “constitutional law” that conflicted with the people’s understanding at the time they ratified the Constitution was not law at all. One did not have to wait for a court ruling to ignore it, because for all intents and purposes it did not exist.

How could that be? Remember: the Revolution was fought for home rule through legislative elections. Only the powers “expressly delegated” to the new-fangled Federal Government made exceptions to that rule. Beyond that, Congress could not go, and if it tried, its effort was unavailing.

For over a century, Woods says, the Federal Government has grown and grown. Electing new officials has not checked that growth, even when those officials were authentically dedicated to reining in the government’s growth. To those who might think of nullification as a risky strategy, Woods’s response is that nothing else is working. Nullification is a tool in the bag of those who want to dam the river of government expansion. It has been used before, and to good ends. It is being used now, for minor purposes. Woods hopes to see it actually implemented in states that understand Obamacare and other such federal initiatives to be unconstitutional. To judge by what is coming out of legislatures these days, perhaps he will get his wish. As he puts it, “We have been helpless spectators long enough.” (p. 143)

Copyright © 2010 Campaign for Liberty.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s early in 2011.

Most articles that seek to demonize the Tenth Amendment movement are so rife with logical and intellectual fallacies that even responding to them is a waste of time. However, in the case of Dan Casey, blogger for the Roanoke Times, an exception must be made.

For starters, Casey is writing in my (and Thomas Jefferson’s) home state of Virginia, and his piece, “The Whole Tenth Amendment Business is Dumb and Crazy” actually links to the Virginia Tenth Amendment Center, which I helped to found.

But, more importantly, in his article, Casey attempts to smear the brilliant men who wrote the U.S. Constitution by claiming the document doesn’t mean what they explicitly said it meant.

As James Madison might have said, there is a host of proofs that Dan Casey is dead wrong.

Like so many others before him, Casey leads his attack with a flaccid attempt to discredit the “Tenthers” (as he pejoratively calls them) by linking constitutionalism with support for slavery.

Of course, this completely obscures actions by Tenthers of an earlier era, who used the 10th Amendment as the prime justification for the “States Rights” argument that itself was a smokescreen for the real cause of the Civil War — the South’s insistence on preserving slavery.

Behold straw man number one: The Tenth Amendment is code for racism. Casey is either ignorant of the fact that many Northern states used the Tenth Amendment as a justification for undermining slavery long before 1861, through their refusal to enforce the Fugitive Slave Acts, or he has chosen to ignore that inconvenient part of history. 

Either way, it doesn’t matter. Historical accuracy is not Casey’s goal. He merely intends to color his readers’ perception of Tenthers by linking them, however spuriously, with Southern slaveholders. To acknowledge the truth about the history of states’ rights in the North might disrupt his narrative of unquestioning obsequiousness to centralized power.

Casey continues:

But apart from aligning themselves with slaveholders, there’s another more fundamental flaw in the whole modern Tenther argument. In a nutshell, it’s this: Their interpretation is based on a single sentence in the Constitution, rather than on the document as a whole.

In fact, the larger document directly contradicts the Tenthers’ argument.  That’s right — words the founding fathers quite deliberately wrote into the Constitution clearly and effectively rebut the Tenthers’ faulty reasoning.

It’s hard to imagine where Casey got this impression, considering that James Madison himself described the document he helped to write by saying

The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite.

Thomas Jefferson also knew the Tenth Amendment was more than just “a single sentence.” He called it the Constitution’s foundation: 

I consider the foundation of the Constitution as laid on this ground: All powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.

It really cannot be any clearer than that. The self-serving opinions of Dan Casey and myriad federal judges notwithstanding, if the people and the states didn’t explicitly surrender a power in the Constitution, then they still retain it. Whether or not they choose to exercise it is another story.

But if federal power is limited to what is enumerated in the Constitution, Casey asks, why do we need a Bill of Rights at all?

The problem for the Tenthers here is that the First Amendment has nothing to do with what Congress can do. It’s all about what Congress can’t do.

And this is where the Tenthers’ entire argument falls apart. Because under Tenther-logic, unless the Constitution permitted the feds to establish religion, or abridge freedom of speech and so on, then the feds would automatically be prohibited from doing it.

Obviously, the founding fathers themselves did not believe that, or they never would have felt the need to write the First Amendment in the first place.

Here Casey has a point, although not the one he thinks. He is right, the feds are automatically prohibited from doing any of the things he lists, just as they are prohibited from requiring every American to buy health insurance, based on the fact that those powers are not delegated under Article 1 Section 8.  

But, more importantly, many of the founders themselves argued against the Bill of Rights for the same reason as Casey: It should not be necessary. 

Alexander Hamilton said

…bills of rights… are not only unnecessary in the proposed constitution, but would even be dangerous. …For why declare that things shall not be done which there is no power to do? 

If there is any argument to be made against the Tenth Amendment, it is Hamilton, not Casey, who has made it.

The Bill of Rights should never have been needed. Every one of the first 10 Amendments is essentially legally redundant based on the text of the Constitution itself.

But, over time, activist judges and complicit politicians have turned the entire document on its head, until the only rights left to the people are those explicitly granted, while the only powers not yet claimed by government are those explicitly prohibited.

Yet Casey calls Tenthers, who only want the Constitution’s clear language enforced, ”intellectual boobs who can’t be bothered to think for themselves.” Apparently, thinking for oneself means ignoring the purpose of our founding documents, and gratefully acquiescing to federal tyranny.

Those of us who demand liberty are feared and ridiculed by weak minded men like Dan Casey who consider themselves intelligent, but are really nothing more than errand boys for the State.

As Samuel Adams once said

If you love wealth more than liberty, the tranquility of servitude better than the animating contest of freedom, depart from us in peace. We ask not your counsel nor your arms. Crouch down and lick the hand that feeds you. May your chains rest lightly upon you and may posterity forget that you were our countrymen.

[This article was excerpted from chapter 3 of Reassessing the Presidency, edited by John V. Denson.]

When Jefferson ran for president in 1800, he made it clear that he supported strict construction, original intent jurisprudence, federalism, and states’ rights:

I do then, with sincere zeal, wish an inviolable preservation of our present federal Constitution, according to the true sense in which it was adopted by the States. … I am for preserving to the States the powers not yielded by them to the Union, and to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the General Government, and all those of that government to the executive branch.

He confessed to his friend and political ally from Connecticut, Gideon Granger, that he was sincerely

attached to the preservation of the federal Constitution according to its obvious principles, and those on which it was known to be received; attached equally to the preservation to the States of those rights unquestionably remaining with them.

He warned his friend that “our country is too large to have all its affairs directed by a single government” and if ever the powers of the state governments should become concentrated in the general government “it would become the most corrupt government on the earth.

In his first annual message to Congress, Jefferson charged that

this government is charged with the external and mutual relations only of these states; [and] that the states themselves have principal care of our persons, our property, and our reputation, constituting the great field of human concerns.

He promised that his consistent objective as president would be “to preserve the general and State governments in their constitutional form and equilibrium.”

When the Federalists began to develop their theory of federal judicial review in the aftermath of their crushing political defeat in 1800, Jefferson quickly denounced it as unrepublican and contrary to the intent of the framers and the state ratifying conventions. Jefferson argued that such a power would violate the separation of powers and make the least republican of the three branches of government the most powerful, thus striking a blow against “the vital principle of republics,” which was “absolute acquiescence in the decisions of the majority” on all matters entrusted to them by the Constitution.

Chief Justice John Marshall asserted in his Marbury decision that the federal courts had the final right to decide questions of disputed constitutionality and the authority to set aside federal laws which they thought contrary to the Constitution.

Jefferson argued that an alternative doctrine, concurrent review, was closer to the intentions of the framers and the ratifying conventions. According to Jefferson, each branch of the federal government, plus the state governments, had the right to interpret the Constitution for itself, and none had the right to bind the others by its decision. Jefferson explained this doctrine in a private letter written while he was president:

The judges, believing the law [the Sedition Act] constitutional, had a right to pass a sentence of fine and imprisonment, because that power was placed in their hands by the constitution. But the Executive [Jefferson], believing the law to be unconstitutional, was bound to remit the execution of it; because that power has been confided to him by the constitution. That instrument meant that its co-ordinate branches should be checks on each other. But the opinion [Marshall's] which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the legislative and executive also in their spheres, would make the judiciary a despotic branch.

Dumas Malone, Jefferson’s biographer, concedes that “jurists of our day” may find Jefferson’s doctrine of constitutional interpretation “vague and remote.” However, he points out that in Jefferson’s

own day … and for some decades thereafter it approximated the actualities of the government situation. … [T]he legislature and the executive continued to determine for themselves whether or not they were acting within the bounds of the Constitution

It must be kept in mind that Marshall and his allies did not formulate their novel doctrine of judicial review to restrain the power of government or to protect the rights of the people, but to protect governmental measures and institutions already enacted by the Federalists and believed to be threatened by the Republicans, such as the Judiciary Acts of 1789 and 1801, the national bank, the navy, and the internal tax system. In other words, for the Federalists, judicial review was a pro-government measure designed to prevent democratic majorities from shrinking the size or reducing the powers of government. The Federalists, after all, were the party of active government and liberal construction of the Constitution.

Two modern constitutional historians have made the case that concurrent review “favors limited government” by making it more difficult for the federal government to embark on a new area of legislation or regulation. While this is true, Jefferson’s primary concern was to prevent the will of the majority from being subverted or thwarted by the federal courts. Under concurrent review, the courts could pronounce a law unconstitutional, but they could not bind the other two branches; they could render an opinion, but they could not enforce it. The president would be free to block the execution of a law whose constitutionality he disputed, or to continue to execute a law even though it had been declared unconstitutional by the courts.

Concurrent review also applied to the several states. Jefferson did not believe that the states were bound to submit in all cases to the Supreme Court, to presidential decree, or even to federal law. As he put it in his draft of the 1798 Kentucky Resolutions,

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 mode and measure of redress.

Jefferson understood that the true meaning of the supremacy clause was to render the Constitution itself the supreme law of the land; federal law was to be considered supreme and binding on all only when it was consistent with the Constitution. The clause reads:

The Constitution, and the laws of the United States which shall be made in Pursuance thereof … shall be the supreme Law of the Land.

Although he was himself a nationalist, Henry Adams understood perfectly the issue that was at stake when Jefferson and his party assumed power in 1801: namely, whether the Republican “revolution” would be truly revolutionary. In other words, would they make the kind of fundamental reforms that would last beyond their time in power? Adams wrote:

The essence of Virginia republicanism lay in a single maxim: THE GOVERNMENT SHALL NOT BE THE FINAL JUDGE OF ITS OWN POWERS. The liberties of America, as the Republican party believed, rested in this nutshell; for if the Government, either in its legislative, executive, or judicial departments, or in any combination of them, could define its own powers in the last resort, then its will, and not the letter of the Constitution, was law. To this axiom of republicanism the Federalist Judiciary opposed what amounted to a flat negative. Chief-Justice Marshall and his colleagues meant to interpret the Constitution as seemed to them right, and they admitted no appeal from their decision. … The question how to deal with the Judiciary was, therefore, the only revolutionary issue before the people to be met or abandoned; and if abandoned then, it must be forever. No party could claim the right to ignore its principles at will, or imagine that theories once dropped could be resumed with equal chance of success. If the revolution of 1800 was to endure, it must control the Supreme Court. The object might be reached by constitutional amendment, by impeachment, or by increasing the number of judges.

Just days before Jefferson was to be sworn in as the third president, the lingering Federalist majority passed, and President Adams signed into law, the Judiciary Act of 1801. It reduced the number of Supreme Court justices from six to five (to deprive Jefferson of an early appointment when the next justice retired), abolished the existing federal circuit courts, created six new circuit courts, and divided the latter into 23 districts presided over by 16 new federal circuit judges. These became known as “the midnight judges,” since President Adams appointed Federalists to all the new positions.

The act also added to the number of federal marshals, district attorneys, and law clerks. Most ominously for the Republicans, it vested jurisdiction of all “federal questions” in the circuit courts. A federal question referred to those areas of law over which the Constitution had vested jurisdiction in the Supreme Court and in such inferior courts as Congress might establish. The Constitution defined federal questions as “all cases, in law and equity, arising under this Constitution, the laws of the United States, and treaties made, or which shall be made”  The Judiciary Act of 1789, which had established the federal court system, had wisely left the question of federal jurisdiction to the state courts, but it had allowed appeals of state supreme-court decisions to be heard before a federal circuit court. Clearly, the Judiciary Act of 1801 was a last minute effort by the Federalists to erect some kind of judicial barrier against the feared revolutionary measures of the incoming administration.

The creation of patronage positions for Federalist lawyers was an incidental benefit. Jefferson described the new judicial establishment as “a parasitical plant engrafted at the last session on the judiciary body. The Federalists, he wrote,

have retired into the Judiciary as a stronghold. There the remains of federalism are to be preserved and fed from the Treasury; and from that battery all the works of republicanism are to be eaten down and erased.

He regarded the act as a moral nullity, since it was passed by a party that had already been repudiated by the majority and was on the verge of surrendering power. For these reasons, he and his party were determined to repeal it at the earliest opportunity. After taking care of more pressing matters having to do with federal taxation, spending, and debt, the Jeffersonians, in December 1801, turned their attention to repeal. After a long and bitter debate, the Republicans passed the Repeal Act on March 8, 1802. It restored the old judicial system and abolished the new judgeships and federal district attorneys. Henry Adams estimated that the repeal saved $30,000 a year. A month later, the Republicans passed the Judiciary Act of 1802, which restored to six the number of Supreme Court justices, created six circuit courts, and fixed one term annually for the high court.

The question now was what would Jefferson do about the Judiciary Act of 1789, which had created a three-tiered federal judicial structure. The top of the structure was a six-member Supreme Court staffed by a chief justice and five associate justices. The middle tier was made up of three circuit courts to be staffed only twice a year by a district judge and two itinerant Supreme Court justices. On the bottom were district courts presided over by a district judge; each state had one district court, except Virginia and Massachusetts, each of which had two.

Henry Adams described this act as “a triumph of Federalist centralization,” for it

had conferred on the Supreme Court jurisdiction over the final judgment of State courts in cases where the powers of the general government had been “drawn in question” [that is, federal questions] and the decision was unfavorable to them.

As Adams pointed out, defenders of states’ rights feared that this act eventually would “make the state judiciaries inferior courts of the central government,” for

the powers of the general government might be “drawn in question” in many ways and on many occasions … until the national courts should draw to themselves all litigation of importance, leaving the State courts without character or credit.

At the time, Senator Richard Henry Lee of Virginia had proposed creating a single appellate federal supreme court with no other federal courts at all, except for a few admiralty courts. All cases arising under federal jurisdiction would be tried before state courts and only on appeal would they be brought before the supreme court. Other Republicans proposed a larger supreme court that would travel about the country to hear all federal cases. The Federalist-controlled Congress rejected both options and chose the more centralist and elaborate judicial system proposed by Senator Oliver Ellsworth of Connecticut.

Jefferson and the Republicans had two available models with which they could have replaced the Judiciary Act of 1789. Yet they made no effort to repeal it. What is more, with the important exception of trying the remedy of judicial impeachments, they made no effort to enact any other kind of judicial or constitutional reform.

According to Henry Adams, Jefferson’s biggest failure (next to the embargo) was his unwillingness to take advantage of the momentum and prestige of victory and his overwhelming Republican majority in Congress to enact fundamental judicial and constitutional reform. As he correctly points out, “loopholes for the admission of European sovereignty into the citadel of American liberty were seen in 1800 as clearly as [in 1860].” While Adams is in no way sympathetic to Old Republican political and constitutional theories, he is undoubtedly right to point to the significance of Jefferson’s failure to institutionalize his revolution. With the single exception of impeachments, Jefferson did not even try to enact constitutional safeguards against the dangers posed by national centralism and neomercantilism. Why he did not do so remains something of a mystery.

Jefferson was certainly aware of Federalist plans for a more “energetic” government. And he was not ignorant of possible reforms, for a prominent Virginia Republican had proposed a set of them in October 1801. Judge Edmund Pendleton, head of the Virginia Court of Appeals, published an influential article in the Richmond Enquirer entitled “The Danger Not Over.” The article was soon reprinted in the administration newspaper, the Washington National Intelligencer. Pendleton’s article was a classical republican manifesto full of negative references to the dangers posed to American liberty by standing armies, undeclared war, executive influence, government debt, excessive civil offices, legislative corruption, judicial irresponsibility, and consolidated central power.

Pendleton warned that Americans should not be complacent simply because faithful Republicans were now holding the reigns of power, for men were “fallible,” new men of uncertain principles inevitably would succeed them, and experience had already shown that “much mischief may be done under an unwise administration, and that even the most valuable parts of the Constitution, may be evaded or violated.” As a result, he urged them to take advantage of the opportunity provided by the temporary overthrow of Federalist men and principles “to erect new barriers against folly, fraud and ambition; and to explain such parts of the Constitution, as have been already, or may be interpreted contrary to the intention of those who adopted it.”

Pendleton suggested the following constitutional amendments to correct several notable “defects” in the Constitution. As he believed the presidency was too powerful, he proposed that the president be ineligible for a second term, and his power of appointing federal judges and ambassadors be transferred to the House of Representatives. He also believed the federal Senate was too powerful, and he recommended either shortening senators’ terms of service or making them removable by the state legislatures, and depriving them of their “executive” powers (the power to ratify treaties and confirm appointments), which presumably would be transferred to the House.

Pendleton saw a defect in the irresponsibility of the federal judiciary. He proposed that by a concurring vote of both houses, Congress could remove federal judges and Supreme Court justices from office. He believed there to be a lack of restrictions on the power of the federal government to borrow money and go into debt. Pendleton suggested “some check” on this power, although he did not specify what kind.

He was also worried about the lack of precision in certain areas and the existence of some general phrases in the Constitution that provided opportunities for mischievous constructions. He recommended “defining prohibited powers so explicitly, as to defy the wiles of construction.” He recommended that the Constitution should state explicitly that the common law of England was not a part of the law of the United States, and that the crime of treason was “confined to the cases stated in the Constitution” and could not be extended further by law or construction.

He also believed that there existed too much uncertainty about the exact boundaries between the federal and state spheres of authority. Therefore, he suggested that “the distinct powers of the General and State Governments” should be “marked out with more precision.” He closed his article by quoting from an unnamed classical-republican author who had observed “that of men advanced to power, more are inclined to destroy liberty, than to defend it.” He urged them not to let this propitious opportunity be lost before forming “new barriers to counteract recent encroachments on their rights.”

Adams himself wondered why Jefferson never pushed for an amendment to excise “certain phrases in the Constitution [which] had been shown by experience to be full of perils, and were so well-established by precedent in their dangerous meaning,” such as the necessary and proper clause. He wondered why Jefferson did not try to limit constitutionally the war- and treaty-making powers “with their undefined and therefore unlimited consequences.” He also asked why Jefferson did not ask Congress “to confirm the action of Virginia and Kentucky by declaring the Alien and Sedition Laws to be unconstitutional and null as legislative precedents.” After all, as Adams points out, John Taylor and other Virginia Republicans at the time thought that Congress should have formally repealed those laws instead of merely allowing them to expire according to statute.

Jefferson also did nothing to erase what has since proved to be the fatal precedent established by Marbury, that the Supreme Court had the authority to strike down a state or federal law whose constitutionality it disputed. Jefferson could have asked Congress for an amendment to reverse Marshall’s opinion in Marbury and formally declare that the Supreme Court did not have the power of judicial review. Jefferson believed that since Marshall’s opinion was issued obiter dictum (an incidental opinion having no bearing on the case in question, and hence not binding) and had no historical precedent, it was therefore null and void. He was right, but that did not prevent future justices from citing it.

Last, Jefferson erred by deciding against pushing for an amendment to authorize the Louisiana Purchase and to answer the questions raised by territorial expansion — namely, which other North American territories could be incorporated in the Union, how could they be incorporated lawfully, what powers exactly did Congress and the president have over the territories, and what would be the exact procedure for forming new states out of them and admitting them to the Union.

Jefferson also failed to appoint a states’ rights Republican to the Supreme Court who could rival John Marshall in erudition, strength of personality, and determination to uphold a consistent constitutional philosophy. Jefferson had three Supreme Court appointments. He appointed William Johnson of South Carolina in 1804, Henry Brockholst Livingston of New York in 1806, and Thomas Todd of Kentucky in 1807. Although all three were Republicans, none of them consistently upheld the compact theory of the Constitution, or what was then known as the Virginia school of constitutionalism.

Johnson, who was the most republican of the three, cited Marbury as a precedent and concurred in Marshall’s major centralizing opinions (McCulloch v. Maryland; Martin v. Hunter; Gibbons v. Ogden; and Dartmouth College v. Woodward).

Livingston was an even greater disappointment than Johnson. Instead of helping to form a Jeffersonian phalanx on the court, he quickly fell under Marshall’s influence and voted with the nationalist majority on all major cases.

Thomas Todd, whom Jefferson appointed to fill a newly created sixth associate justice position, turned out to be a non-entity, a mere rubber stamp for Marshall and Joseph Story.

Historians have little or nothing to say about Jefferson’s Supreme Court appointments. Neither Henry Adams nor Dumas Malone even discuss them. Yet here was Jefferson’s best chance to counter John Marshall. With three strong Republican appointments, Jefferson could have reduced Marshall’s majority to a bare 4–3 by 1807. With just one more solid appointment in 1811, Jefferson’s hand-picked successor, Madison, could have ended the Marshall Court and begun a Jeffersonian Court with strict constructionist, states’-rights jurists in the majority.

In the meantime, vigorous dissenting opinions issued by Jeffersonian jurists could have weakened the force of Marshall’s opinions and added legitimacy to future reversals. Because Marshall’s most seminal nationalist decisions, apart from Marbury in 1803, came after the War of 1812, Jefferson could have changed the whole course of constitutional history.

Why did Jefferson make such weak appointments? It was not because there were no intellectually formidable jurists committed to states’ rights and strict construction. Actually, there were many available, including two prominent Virginians with whom Jefferson corresponded. Judge Spencer Roane (1762–1822) had been on the Virginia Court of Appeals since 1794 and, after the death of Edmund Pendleton in 1803, became its recognized leader. President-elect Jefferson was apparently considering appointing him to the position of chief justice of the Supreme Court before Adams appointed Marshall just six weeks before he was to leave office. Why Jefferson at the first opportunity did not appoint Roane to the court as a check upon Marshall is not clear.

Another formidable Virginia jurist who shared Jefferson’s constitutional and judicial philosophy was St. George Tucker (1752–1827). Tucker had been a judge of the general court of Virginia for twelve years and a professor of law at the college of William and Mary from 1800–1803, and he was elected to the state court of appeals in 1803 to fill the vacancy created by the death of Pendleton. In the same year, he published a five-volume annotated edition of William Blackstone’s Commentaries of the Laws of England. Tucker suffused his “republicanized” version of Blackstone with the doctrines of states’ rights, strict construction, and the compact theory.

There is no doubt that Roane and Tucker were the intellectual and scholarly equals, and possibly superiors, of Marshall and that they would have challenged his centralizing and nationalistic opinions at every opportunity. If Jefferson had appointed these two men to the court and favored a true Republican, instead of Madison, to be his successor, it is very likely that the Marshall Court would have come to an end in 1811; and historians would now be writing about a Roane or a Tucker Court during the 1810s and 1820s.

Jefferson did try the experiment of whether Congress’s power of impeachment could be used as a means of disciplining or checking the power of federal judges and Supreme Court justices. In February 1803, Jefferson recommended to the House that they consider the impeachment of Federal District Judge John Pickering of New Hampshire. Jefferson charged that Pickering’s habitual drunkenness rendered him unfit to perform his duties and that such dereliction constituted a misdemeanor that was legal grounds for impeachment. On March 3, 1803, the House voted 45–8 to impeach Pickering. A year later, on March 12, 1804, the Senate found Pickering guilty of a misdemeanor and ordered him removed from office.

Jefferson was certainly pleased with Pickering’s impeachment, but it was two other events in the late winter and spring of 1803 that finally motivated him to recommend to his chief supporters in Congress the impeachment of a Supreme Court justice. On February 24, 1803, John Marshall rendered his gratuitous and bold assertion of judicial power in Marbury v. Madison. Jefferson was alarmed and angered by the decision.

Then, on May 2, Associate Justice Samuel Chase of the Supreme Court delivered a political harangue before a grand jury in Baltimore. Chase denounced the Republican’s repeal of the Judiciary Act of 1801, the recent adoption of universal manhood suffrage by the state of Maryland, and “the modern doctrines of our late reformers [the Jeffersonians], that all men in a state of society are entitled to enjoy equal liberty and equal rights.” Chase warned the jury that unless these changes were reversed and the doctrines behind them repudiated, the government would become “a mobocracy … and peace and order, freedom and property, shall be destroyed.”

Jefferson was infuriated. He considered Chase’s comments to be “seditious,” constituting an “official attack on the principles of our Constitution and the proceedings of a State.” Consequently, just ten days later, he wrote a letter urging one of his chief supporters in the House to begin impeachment proceedings against Chase. For Jefferson, the time had arrived to humble the power and pretensions of the Federalist-controlled Supreme Court and at the same time to see if impeachment could function as an effectual legislative check upon the judiciary. On March 12, 1804, the House voted to impeach Chase by a vote of 73–32. The Senate trial would begin a year later. The chief House managers at the Senate trial were John Randolph of Virginia, Joseph Nicholson of Maryland, and George W. Campbell of Tennessee.

Samuel Chase was an arch-Federalist of imperious habits who had allowed his own political partisanship to influence his official duties as an associate justice of the Supreme Court. Chase had favored the government prosecution in his handling of two important sedition trials in Baltimore in 1800; he had left the bench without a quorum in order to campaign for John Adams the same year; he was also given to harassing Republican lawyers and delivering political diatribes while on the bench.

The House managers brought eight articles of impeachment against Chase. The most serious charges were that during the sedition trial of John Fries, Chase had denied the defendant the right to counsel and had treated him in an “arbitrary, oppressive, and unjust” manner; during the libel trial of James Callender, Chase had failed to excuse a prejudiced juror and had refused to hear an important witness for the defense; after a federal grand jury in Newcastle, Delaware, had finished its business, Chase kept it in session and urged it to inspect a local paper for evidence of sedition; and Chase had delivered a political speech before the grand jury in Baltimore.

The chief issue before the Senate was what were the proper grounds for judicial impeachment. The Federalists and some Northern Republicans contended that a justice could be impeached only for actual violations of the law (criminal impeachment). The Southern Republicans, led by John Randolph and William Branch Giles, contended that a justice could be impeached for misconduct, partisanship, and abuses of judicial power (political impeachment). The latter was Jefferson’s opinion.

On March 1, 1805, the Senate began voting on the eight articles of impeachment. In order to convict Chase, two-thirds of the senators present (23 out of 34) would have to vote to convict him on at least one article. The most votes to convict were 19 on article eight and 18 on articles three and four. Chase was acquitted. Although Randolph has often been blamed for botching the trial, the real reason for the failure to convict was that five Northern Republicans and one Southern Republican voted to acquit Chase on all eight articles.

Thus, to Jefferson’s and Randolph’s great disappointment, the issue of whether impeachment could be used to check a politicized and consolidationist judiciary had been settled in the negative. Right after the acquittal, John Randolph introduced a resolution that the House should pass and submit to the states an amendment to the Constitution providing that “the judges of the Supreme and all other courts of the United States shall be removed by the President on the joint address of both houses of Congress.”

Joseph Nicholson of Maryland pushed for an amendment empowering the legislature of any state to recall one of their senators and vacate his seat. The House voted to refer both resolutions to the next Congress. Jefferson gave neither amendment any support.

Writing just two years later during the Burr treason trial, Jefferson admitted to one of his chief supporters in the Senate that “impeachment is a farce which will not be tried again.” He observed with alarm that “one of the great coordinate branches of the government [the judiciary]” had set “itself in opposition to the other two and to the common sense of the nation.” He suggested that if Burr were acquitted due to the obstructions placed in the way of conviction by Chief Justice Marshall, who was presiding over the trial, that the people “will see then and amend the error in our Constitution, which makes any branch independent of the nation.”

Get the New Book Today!

Once again Jefferson did nothing. He even sounded as if the president had no power or influence in proposing a constitutional amendment which would have limited the powers of the federal court and made its justices, as well as other federal judges, removable for misconduct. He had many ways of making such a recommendation: he could have drafted a special message to Congress; he could have included it in his upcoming annual message; and he could have suggested it to his chief supporters in Congress. But he did none of these things.

Jefferson should have known better. He should have realized that political power in a republic is ephemeral and that the temptations to abuse power were so great that future administrations and congresses would be sure to seize the forbidden fruit, which was all the more reason to erect as many dikes and moats and eliminate as many unguarded passages to the throne of arbitrary power as was possible. Years later, when Jefferson himself admitted that the enemy was in the camp, he could not say that he had not been warned; his fellow Virginian Republicans, Edmund Pendleton, John Randolph, and John Taylor, had warned him.

Henry Adams suggested four reasons why Jefferson did not push for constitutional revision and reform. First, Jefferson found some federal powers useful for his policy of territorial expansion, such as the treaty-making power. Second, his majority in the Senate was too small: he needed two-thirds to pass an amendment. Third, he could not count on the support of his Northern political allies. Adams contended that while the “Southern Republicans” were strongly committed to limited government, states’ rights, and strict construction, the “Northern democrats” were more interested in making the federal government responsive to the wishes of the people than in restricting its power. Fourth,

Jefferson wished to overthrow the Federalists and annihilate the last opposition before attempting radical reforms. Confident that States-rights were safe in his hands, he saw no occasion to alarm the people with legislation directed against past rather than future dangers.

Adams was right. Early in his presidency, Jefferson made a fateful decision to safeguard the Republican revolution by political rather than constitutional means. His strategy was to draw away the great body of the Federalist voters, most of whom he believed were republican at heart, from their ambitious and unprincipled leaders. Once that had been done, the republic would be safe and fundamental reforms could be enacted. He admitted to a correspondent very early in his presidency that

some things may perhaps be left undone from motives of compromise for a time, and not to alarm by too sudden reformation, but with a view to be resumed at another time. … What is practicable must often controul [sic] what is pure theory; and the habits of the governed determine in a great degree what is practicable.

In the meantime, he hoped “by degrees to introduce sound principles and make them habitual.” In other words, he feared that radical measures would alarm many moderate Federalists and new Republican voters, thus driving them back into the arms of the Hamiltonians and the High Federalists of New England.

Many of Jefferson’s early policy decisions can be explained only by a desire to placate and win over the bulk of the Federalists to the Republican Party. Why else was he so reluctant to remove any but the most partisan or incompetent Federalists from office? Why did he decide only to reduce, instead of abolish, the navy when the latter had been his initial intention and the fond wish of so many of his southern supporters? Why did he decide to send the fleet to the Mediterranean to fight the pasha of Tripoli when he needed only to sign a new treaty with an increased tribute? After all, Jefferson continued throughout his presidency to pay tribute to the other Barbary powers. Jefferson knew that the navy was popular in the eastern states, the region of his weakest strength, and he knew that most navy officers were Federalists. Why did Jefferson support a compromise settlement for the shameful Yazoo bribery scandal, if not to win over New England Federalists who were personally interested in that sordid financial transaction?

There are numerous references in Jefferson’s letters during the course of his presidency indicating how important it was to him that the Republican majority grow and the Federalist minority shrink. Moreover, there are indications that Jefferson was not simply postponing constitutional reform to a later day when the Republicans were stronger, but that he actually regarded such reforms as secondary in importance to winning over the Federalist minority to republicanism:

[S]hould the whole body of New England continue in opposition to these principles of government, either knowingly or through delusion, our government will be a very uneasy one. It can never be harmonious and solid, while so respectable a portion of its citizens support principles which go directly to change of the federal Constitution, to sink the State governments, consolidate them into one, and to monarchize that.

In other words, Jefferson understood that constitutional prohibitions alone would not deter or prevent a determined faction from subverting a government in which they did not believe. By his policies, Jefferson placed stronger emphasis on restoring harmony and unity to the country and on bringing back the great body of the Federalists to their “ancient principles,” “the principles of ’76,” than he did on constitutional reform. Jefferson simply refused to believe that the majority could not be relied upon to defend the Constitution and the cause of liberty. He was sure that while they might stray from sound principles on occasion they would always return to their senses before it was too late.

Historian Scott Trask is an adjunct scholar of the Mises Institute.

Licensed and reprinted under the Creative Commons 3.0 copyright

EDITOR’S NOTE: Joe Wolverton, II will be joining us as a featured speaker at Nullify Now! Chattanooga.  Get tickets here – http://www.nullifynow.com/chattanooga/ – or by calling 888-71-TICKETS

*******

Of George Wythe, his former tutor and mentor, Thomas Jefferson once wrote: “No man ever left behind him a character more venerated than George Wythe. His virtue was of the purest tint; his integrity inflexible, and his justice exact; of warm patriotism, and devoted as he was to liberty and the natural and equal rights of man, he might truly be called the Cato of his country.”

It is not surprising then, given Jefferson’s admiration and estimation of Wythe’s character and insight, that it is to him that on September 16, 1787 Jefferson penned the following expression of his notion of the principles of good government. That letter, written on the very day before the delegates to the convention in Philadelphia would endorse the Constitution of the United States, read in relevant part:

You ask me in your letter, what ameliorations I think necessary in our Federal Constitution. It is now too late to answer the questions, and it would always have been presumptuous in me to have done it. Your own ideas and those of the great characters who were to be concerned with you in these discussion will give the law, as they ought to do, to us. My own general idea was that the States should severally preserve their sovereignty in whatever concerns themselves alone, and that whatever may concern another State or any foreign nation should be made a part of the Federal sovereignty; that the exercise of the Federal sovereignty should be divided among three several bodies, Legislative, Executive, and Judiciary, as the State Sovereignties are; and that some peaceable means should be contrived for the Federal head to force compliance on the part of the States….”

As he alludes in his letter to Wythe, Jefferson was not present at the Constitutional Convention. He was in Paris, but remarkably the principles of sound government explicated by Jefferson in this missive were nearly identical to the precise arrangement established by the Convention and embodied in the Constitution produced by their thoughtful and impassioned deliberations.

Jefferson’s first priority, as stated above, is the protection of state sovereignty. After years of federal overreaching and collusion among the three branches of government to expand the bailiwick of the national government, the states are beginning to reassert their natural right of self-determination and their “Lockean outburst” is ringing in the ears of Establishment politicians in both parties, on both coasts, and in every state in between. If Leviathan is to be cowered and restrained by the fetters of Constitutional limited government, then it will surely be the states and the citizens thereof that will deserve the credit.

Part of Jefferson’s defense of the sovereignty of the several states concerns the right implicit in that status to legislate in matters that “concern themselves alone.” There is probably no principle of Constitutional law more debated in the daily newspapers of our day than this one. Arizona, Pennsylvania, Oklahoma, Utah, and other states have expressed their control over their own borders by enacting laws proscribing the presence of illegal aliens within their boundaries. With various methods, these sovereign states have boldly defended the rights and safety of those legally present in their territory and upon whom they depend for their legitimacy. Many opposed to the enactment of these statutes argue that immigration and the control thereof is a matter within the exclusive jurisdiction of the federal authority. This attitude ignores a hundred years of American jurisprudence and Constitutional interpretation, as well as the clearly expressed intent of the Founders (see, for example, this article published recently in The New American).

James Madison, Father of the Constitution and longtime friend of Thomas Jefferson, summed up the Founders’ position simply and succinctly: “The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite.” Statists disregard such clear statements, preferring instead to wrest from the imagined penumbras and emanations of the Constitution the scaffolding upon which they will construct their temple to the goddess of Progress.

The division of power among three departments was well-established years before Jefferson espoused such in his wish list to George Wythe. In his influential book L’Esprit des Lois (The Spirit of the Laws) Charles de Secondat, Baron de Montesquieu, described this critical separation of the various powers of government as essential to liberty.

In every government there are three sorts of power: the legislative; the executive in respect to things dependent on the law of nations; and the executive in regard to matters that depend on the civil law.

By virtue of the first, the prince or magistrate enacts temporary or perpetual laws, and amends or abrogates those that have been already enacted. By the second, he makes peace or war, sends or receives embassies, establishes the public security, and provides against invasions. By the third, he punishes criminals, or determines the disputes that arise between individuals. The latter we shall call the judiciary power, and the other simply the executive power of the state.

The political liberty of the subject is a tranquility of mind arising from the opinion each person has of his safety. In order to have this liberty, it is requisite the government be so constituted as one man need not be afraid of another.

When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner.

Again, there is no liberty, if the judiciary power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression.

In the spirit of giving credit where credit is due, however, one must admit that Montesquieu only paraphrased a doctrine of good government praised by philosophers centuries before he was a household name on two continents. Polybius, for example, in his history of the laws of Rome, ascribed the strength and longevity of the Roman constitution to its enshrinement of a mixed government, that is a single state with elements of all three forms of government at once: monarchy (consuls), aristocracy (Senate), and democracy (popular assemblies). This unique mixture and division of power requires each of the three branches of government to at once check the strength of and balance the weakness of, the other two. (See Book VI of Polybius’s Histories).

Finally, Jefferson recommends the endowment of the federal government with the power to “force compliance on the states….” This statement is in no way inconsistent with Jefferson’s jealous defense of the right of states to rule themselves. Jefferson and his generation were acquainted with the dangers and delay that accompany an impotent central authority. The United States were too much of the latter and too little of the former under the Articles of Confederation. Local concerns and regional disputes were spinning the states into centrifugal chaos and were exposing them to the whims of the government of His Majesty that they had so recently shuffled off.

To the end of remedying this weakness through the formation of “a more perfect union,” the Convention of 1787 was held in Philadelphia from May to September of 1787. While the compromise hammered out by the delegates of the twelve states present at the convention is not perfect, it is certainly an improvement on the government created by the Articles of Confederation and it is inarguably the finest expression of the timeless principles of sound and limited government ever produced by the mind of mortals in the history of mankind. The novelty of the experiment in harmony with the peculiar genius of the American people, a people inculcated from the cradle with zeal for liberty, combined in that document to produce a penetrating peal of freedom that is ringing still.

Apart from his work as a journalist, Joe Wolverton, II is a professor of American Government at Chattanooga State and was a practicing attorney until 2009. He lives in Chattanooga, Tennessee with his wife, Sarah.  Since 2000, Joe has been a featured contributor to The New American magazine. Most recently, he has written a cover story article on the Tea Party movement, as well as a five-part series on the unconstitutionality of Obamacare.

This article originally appeared in The New American magazine – and is republished here with permission of the author.

EDITOR’S NOTE: Debra Medina will be joining us as a featured speaker at Nullify Now! on 09-04-10 in Ft Worth, Texas.  There are just a few tickets left – Click here for more information and to reserve tickets now – or call 888-71-TICKETS

*******

The ties between England and what would become the United States of America were severed, as Tench Coxe, delegate from Pennsylvania to the Continental Congress, put it, in large part due to the perversion and mal-administration of the British government.[i] Two hundred years later, Americans are manifesting similar levels of frustration with government and inflammatory terms like secession are being used by politicians ever anxious to grab the media spotlight and secure their re-election.  But what have they done exactly to correct the “perversion and mal-administration” of the government?

Our founders, astute students of history, well understood as St. Augustine had described, Libido Dominandi, the lust to dominate. They knew that if permitted, the federal government would transgress the limits of the constitution, and, as Thomas Jefferson remarked, “[annihilate] the state governments and erect upon their ruins a general consolidated government.”[ii]

Mr. Jefferson wrote in 1799, “lest [our] silence be construed into an acquiescence…the states…being sovereign and independent, have the unquestionable right to judge of [the federal government’s] infraction; and “That a nullification, by those sovereignties [states] of all unauthorized acts done under color of that instrument [the Constituion] is the rightful remedy.[iii]

Mr. Jefferson understood that a stronger response than mere petitions and protests would be necessary but he sought ever to preserve the union and thus viewed secession only as a last resort.

He understood that the states must stand in defense of the liberty of the people.  He knew the federal government would seek to annihilate the states and dominate all American life.

Thomas E. Woods Jr., in his recent best-seller, Nullification, references state representative John Breckinridge’s comments to the Kentucky legislature of 1799, “the people at the state level ought to make a legislative declaration that, being unconstitutional, they [federal actions] are therefore void and of no effect.”  With regard to unconstitutional federal actions, Breckinridge hoped “Congress might repeal them, or that decent judges might refuse to act upon them” but in the interim recognized the states obligation to “nullify those acts and to protect their citizens from their operation.”

What stops us from following in Mr. Jefferson’s footsteps and declaring Obamacare and Cap and Trade Initiatives, “palpable violations of the said constitution” and “consider a silent acquiescence as highly criminal?”  In that vein, the Texas legislature has the “right and is duty bound to interpose for arresting the progress of evil, and for maintaining our authorities, rights and liberties” declaring this federal action unconstitutional, null and void and of no effect in the sovereign state of Texas![iv] Failing to do so, we, as Congressman Edward Livingston of New York declared in 1798 “deserve the chains which these measures are forging” for us.[v]

Debra Medina got involved in politics in the 1990s and became Wharton County GOP chairwoman in 2004. She was a high-level volunteer for Ron Paul’s 2008 presidential campaign, and served as Interim State Coordinator for the Campaign for Liberty. At the 2008 Republican Party of Texas state convention in Houston, she lost her bid for state GOP vice chairwoman. In 2008, she decided to run for governor. Visit her new organization at WeTexans.com

[i] The Debate on the Constitution, Federalist and Antifederalist Speeches, Articles, and Letters During the Struggle Over Ratification, Part One: September 1787 to February 1788, 22, Literary Classics of the United States, New York, N.Y., 1993.

[ii] The Kentucky Resolutions of 1799, Elliot, Jonathan Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume IV, 544-545, Lippincott (1907).

[iii] ibid

[iv] Ibid

[v] Woods, Thomas E. Jr., Nullification, How to Resist Federal Tyranny in the 21^st Century. P. 53 Regnery Publishing, Inc., 2010.

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.

[This article was excerpted from chapter 3 of Reassessing the Presidency, edited by John V. Denson.]

Was Thomas Jefferson a great president? One’s answer to that question depends on how one defines “greatness.” If we define greatness as how far a president leads the United States down its historically determined path toward the centralized interventionist state, then Jefferson fails to qualify. On the other hand, if we define greatness as how well a president defended the true and original principles of the federal Constitution and the economic and civil liberties for which Americans had fought the Revolution, then Jefferson deserves to be ranked among the better presidents. Yet he also deserves to be ranked as one of the most disappointing, since there was so much that he could have done, was expected to do, but did not do.

As we survey his presidency, it will be useful to keep in mind three questions. First, did Jefferson’s election to the presidency and the Republican capture of Congress in 1800 constitute “a revolution in the principles of our government as that of 1776,” as Jefferson himself contended ten years after he had retired to Monticello?  Second, was Jefferson a true and consistent classical-republican statesman whose policies were consistent with his professed political and economic philosophy of small government, strict construction, states’ rights, low taxes, free trade, noninvolvement in foreign affairs, and peace? And third, does his presidency constitute a model for future leaders of a classical liberal and constitutional-federalist persuasion to follow?

The short answers to these questions are that Jefferson failed to carry through a revolution which he himself had helped to originate, that he was consistent in many ways but inconsistent in others, and that his presidency constitutes a useful model but also a warning.

The Election of 1800

Although the Federalists had controlled Congress and the presidency for 12 successive years, their policies had not been popular. If the Judiciary Act of 1789, the funding of the national debt, the assumption of the states’ debts, the national bank, the system of internal taxation, Jay’s Treaty with Great Britain (1794), and the creation of a professional standing army and navy had been submitted to a popular referendum, probably none of them would have been approved, nor would the federal Constitution have been ratified in the first place. Early Federalist political success in passing their program and holding on to power can be attributed to three factors: the lack of an organized political opposition until the late 1790s, the success of the new political system in thwarting the popular will, and General Washington’s tremendous popularity and prestige.

If the president had been elected directly by the people, Jefferson would have given his first inaugural address in 1797 instead of in 1801. However, the popular memory is short, and the Republicans could not hope to ride to power simply on the basis of the unpopularity of Federalist measures in the early 1790s. They finally triumphed in 1800 because the internal tax system provided a regular reminder that the Federalists believed in an intrusive and energetic government, and the quasi-war with France in 1798 demonstrated beyond any doubt that the Federalists were inveterate Anglophiles — Jefferson called them “Anglomen” — who wanted to build an expensive professional war machine to go to war against Spain and France in alliance with England.

The Republicans were right to believe that the Federalists wanted to turn the American confederation of states into an empire mightier than the British empire and one with a perpetual public debt, high domestic taxes, a large standing army, a navy with ships-of-the-line, large manufacturing establishments subsidized by government, a permanent civil bureaucracy, a strong executive, an irresponsible political judiciary, the consolidation of political power in the federal government, and financial corruption of the federal legislature. Jefferson could speak of his election as a “revolution,” because he believed that the people of the states had rejected the Federalist theory and program of government, which were British, neomercantilist, centralizing, and statist, in favor of the agrarian, decentralist, libertarian, and republican principles which had been dominant during the Revolution and were once again ascendant.

“Jefferson could speak of his election as a ‘revolution,’ because he believed that the people of the states had rejected the Federalist theory and program of government, which were British, neomercantilist, centralizing, and statist, in favor of the agrarian, decentralist, libertarian, and republican principles which had been dominant during the Revolution and were once again ascendant.”

As president, Jefferson set out to reverse the Federalist program, to restore the federal government to its constitutional role (that is, protecting the confederacy and its trade from foreign enemies and managing relations between the states), and to ensure that the people of the states were left alone to regulate their own private pursuits in a state of freedom. He hoped to gradually break the alliance between the government and the moneyed elite which had already been forged by the Federalists. According to Albert Jay Nock, Jefferson “was for control of government by the producing class; that is to say, by the immense majority which in every society actually applies labor and capital to natural resources for the production of wealth,” and that he opposed Federalist efforts to forge a neomercantilistic alliance between the general government and “the exploiting classes,” that is, bankers, bondholders, and officeholders.

Federal Spending Under Jefferson

In a 1799 letter to a Massachusetts Republican, Jefferson summarized what would be the fiscal policies of his administration, if he were elected:

I am for a government rigorously frugal and simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers and salaries merely to make partisans, and for increasing, by every device, the public debt, on the principle of its being a public blessing.

In his first inaugural address Jefferson explained that for him, “the sum of good government” was a “wise and frugal” one “which shall restrain men from injuring one another, [but] shall leave them otherwise free to regulate their own pursuits of industry and improvement, and shall not take from the mouth of labor the bread it has earned.”

Jefferson opposed all but the most minimal taxes because he believed that taxes diminished public happiness by depriving individuals of a portion of their hard-earned money and hence of the means of supporting their families and improving their estates. He warned that ”the general tendency” of the government party was “to increase expense[s] to the ultimate term of burden which the citizen can bear” and leave “to labor the smallest portion of its earnings on which it can subsist,” so that “government shall itself consume the residue of what it was instituted to guard.”

Jefferson also was determined to pay off the national debt. He opposed public borrowing on a number of grounds. First of all, by enabling the government to increase its expenditures without calling on the people for increased taxes, it minimized public opposition to increased spending. Second, public borrowing shifted the burden of payment to posterity. Jefferson believed that imposing financial burden on future generations in order to pay for the profligacy of the present generation was a profoundly unrepublican and immoral act. Third, public borrowing created a class of bondholders who had a vested interest in funding and increasing the debt and opposing its discharge. Last, a public debt created a justification for keeping up taxes to pay the interest.

Thus Jefferson and his Swiss-born secretary of the treasury, Albert Gallatin, set out to reduce federal expenditures and federal taxes and pay off a considerable portion of the federal debt. Although the second goal appears to be in conflict with the third, Jefferson and Gallatin hoped that reductions in spending would compensate for the reduction in federal tax revenue.

In the State Department, Jefferson reduced the number of foreign missions to three — London, Paris, and Spain — one for each of the three great world powers. In the Treasury Department, he dismissed all of the collectors and inspectors of the internal revenue. This change alone reduced the number of federal employees by more than one-third.

However, Jefferson and Gallatin planned on saving the most money in the War and Navy Departments. By early 1802, Jefferson had reduced the size of the regular army by almost half, from 6,000 men when he took office to 3,312. Federalist expenditures on the War Department averaged $1.9 million from 1793 through 1800. Jefferson reduced them to an average of $1.3 million for 1801 through 1808, which was a reduction of almost $600,000 a year.

Federalist expenditures on the Navy Department had averaged $1.3 million a year from 1794 (the first year of the navy) through 1800. Jefferson actually spent a little more, averaging $1.5 million a year for his two terms. However, if one compares his naval expenditures to those of his immediate predecessor, John Adams, who averaged $2 million a year, Jefferson managed to reduce them by an average of almost $500,000 a year. He accomplished this by laying up seven of the 13 frigates built by the Federalists.

Through such measures of economy, Jefferson managed to reduce government expenditures, minus interest and debt reduction, from $7.5 million for fiscal year 1800 to less than $5 million for 1801 and to an average of $4 million for the years 1802—1804. However, increased military expenditures after 1804 significantly raised overall spending during his second term. All in all, while Federalist expenditures averaged $7.1 million from 1793 through 1800, Republican expenditures actually averaged $8.7 million, an increase under Jefferson of $1.6 million a year.

Federal Taxation under Jefferson

The federal government had three sources of revenue in 1800: public land sales, customs duties, and internal taxes. Tariffs averaged only 13 percent ad valorem, although specific duties on sugar, tea, coffee, and salt ranged from 50 percent to 100 percent. The Federalists had imposed internal taxes on whiskey stills, domestic liquor sales, auction sales, carriages, and legal documents. These taxes produced $1 million in federal revenue in 1800, four-fifths of which came from the excises on whiskey and distilled spirits.

When Jefferson recommended repealing these taxes, the Federalists replied that import duties on such “necessities” as coffee, tea, and sugar should be reduced instead. They argued that reducing the duties on tropical commodities would be of more benefit to the people than reducing the whiskey excise.

The Federalists knew what they were about. They wanted to retain the internal revenue system with its host of revenue officers, collectors, and inspectors. They understood that a reduction in import duties could always be reversed by a future congress, but that it would be much more difficult to reimpose internal taxes and recreate a machinery of domestic tax collection after both had been repealed and abolished. They remembered well that the first attempt in 1794 to impose an excise on whiskey produced a tax revolt in the American backcountry. A future Federalist administration might face even greater domestic resistance in trying to bring back the excise than they faced in imposing it.

For the same reasons, Jefferson and his Republican allies were determined to repeal altogether, not just reduce, the internal taxes and to abolish the inspectors and collectors of the revenue. They were successful. Jefferson signed the reform bill into law in March 1802. Jefferson next set his sights on repealing the duty on imported salt, which brought in over $500,000 in revenue annually. Jefferson began to push for its repeal in 1806. His party abolished the salt duty early the next year.

“The Federalists wanted to retain the internal revenue system with its host of revenue officers, collectors, and inspectors. They understood that a reduction in import duties could always be reversed by a future congress, but that it would be much more difficult to reimpose internal taxes and recreate a machinery of domestic tax collection after both had been repealed and abolished.”

In his second inaugural address, Jefferson noted with triumph and satisfaction that federal taxes were “being collected on our seaboards and frontiers only, and incorporated with the transactions of our mercantile citizens.” Thus, “it may be the pleasure and pride of an American to ask, what farmer, what mechanic, what laborer ever sees a tax-gatherer of the United States.”

If federal expenditures on the whole were not reduced under President Jefferson and if taxes were twice reduced, then why did the Treasury Department run a surplus each year from 1801 to 1808? There are two reasons. First, Jefferson raised taxes. In early 1804, Gallatin and Jefferson proposed increasing the tariff duties by 2.5 percent and by adding an additional duty of 10 percent on all goods imported via foreign vessels. The change would have increased the average tariff rate to 16 percent ad valorem. Because its ostensible purpose was to finance the unexpected expenses arising from the Tripolitan War, it became known as the “Mediterranean Fund.” The Republican majority promptly passed the measure. The additional duties brought in about $1 million of increased revenue a year, thus compensating for the loss of revenue due to the repeal of the internal taxes.

Both Gallatin and the Republican congressional leaders promised that the increased tariff would be only a temporary measure. Their bill required that the tariff be brought back to its previous level three months after the close of hostilities with the Barbary powers. However, the Republicans renewed the tax in 1807 despite the cessation of hostilities the previous year.

The renewal was due also to the increase in the customs revenue during the 1800s. The increase was created by growing imports, the profitable carrying trade, and the acquisition of the port of New Orleans under the Louisiana treaty. Under the carrying trade, American vessels brought Spanish and French colonial goods to an American port, paid a duty, and then re-exported them to Europe. The volume of this trade was enormous in 1801 and 1805—1807.

Federal Debt Reduction Under Jefferson

Jefferson and Gallatin inherited a national debt of $83 million. Annual interest payments on the debt averaged about $3.1 million a year under President Adams, thus accounting for about 42 percent of all federal expenditures during those years. Jefferson and Gallatin believed that continuing to discharge these high interest payments just to maintain the debt diminished their flexibility in spending money on legitimate national purposes, such as buying foreign territory, and created upward pressure on federal taxes. They also believed that having a large outstanding debt would be a serious financial handicap should the country go to war in defense of its territory or citizens. Interest payments for the previous debt would still have to be made, the principal would be further augmented by new borrowing, and many sources of loanable capital already would be invested in government stock.

Accordingly, Jefferson and Gallatin proposed creating an annual sinking fund of $7.3 million to be used for the dual purpose of paying interest on the debt and reducing the principal by retiring maturing bonds and buying still outstanding bonds in the market. If this plan were adhered to by Jefferson and his successors, and if no new debt were created, the national debt would be retired in 16 years. Congress passed this measure in April 1802.

Jefferson’s purchase of Louisiana from France in 1803 for $15 million threatened his debt reduction program. However, federal revenue was so great that he and Gallatin had little difficulty paying for the purchase, all the while maintaining their debt reduction plan. Gallatin proposed to pay for the purchase by selling $11.25 million in new 6 percent federal stock, which 6 percent was added to the long-term federal debt; by borrowing $1.75 million in a temporary loan, to be paid from future Treasury surpluses; and by appropriating $2 million in cash from the current Treasury surplus. In the immediate aftermath of the purchase of Louisiana, the administration decided to increase the sinking fund to $8 million a year. In eight years, Jefferson and Gallatin managed to redeem $37.2 million of the principal of the federal debt and bring the total amount outstanding down from $83 million in 1800 to $57 million at the end of 1808.

Foreign Policy and Military Spending: The First Term

Jefferson believed that the happiness of his countrymen would be promoted best by a policy of “peace, commerce, and friendship with all nations, entangling alliances with none.” He envisioned his country as a peaceful, agrarian-commercial federal republic of self-sufficient farmers and mechanics slowly spreading across space to fill in the beautiful and bountiful land vouchsafed them by Providence. Possessing “a wide and fruitful land,” “with room enough for our descendants to the thousandth and thousandth generation,” and “kindly separated by nature and a wide ocean from the exterminating havoc of one quarter of the globe.”America, Jefferson believed, had the blessed opportunity to keep itself free from the incessant rivalries, jealousies, and conflicts of the Old World. For Jefferson, the wise and patriotic statesman would take advantage of his country’s fortunate geography and situation by defending a policy of national independence, neutrality, and noninvolvement in European affairs.

Jefferson’s defense policy was to maintain a peacetime military establishment composed of a small standing army (about 3,000 men) to defend the frontier against hostile Indians and possible Spanish incursions from the Floridas, and a small naval squadron to protect American commerce from the depredations of third-rate powers, such as the Barbary states of North Africa. Jefferson possessed a classical republican aversion to large military and naval establishments both for their expense (which required either taxes or debt to maintain) and their potential threat to the liberties of the people.

Far from being idealistic or Utopian, Jefferson’s vision and policies were based on a realistic understanding of America’s geopolitical situation in the Atlantic world. He believed that it would be pure folly and extravagance to build a large oceangoing fleet, composed of hundreds of frigates and ships-of-the-line. He rightly surmised that building such a fleet would alarm the British and encourage a preemptive strike by their navy in the event of hostilities. Thus, building a fleet could actually increase the possibility of war with England.

Jefferson did not believe that his country could be seriously threatened by the armies of either England, France, or Spain, the three great world powers. Although both England and Spain possessed territory contiguous to the borders of the young republic, both would have to transport large forces across the Atlantic and would be forced to fight on hostile territory far from their base of supplies. On the other hand, the Americans could mobilize hundreds of thousands of able-bodied militia to fight for their homeland. Not one of the great powers had the resources to send sufficient troops to conquer the American states.

Jefferson rejected the Federalist axiom that in order to have peace one must prepare for war — the theory being that the more powerful a country was in armaments the less likely it was to be attacked. Jefferson doubted both the wisdom of this theory and Federalist sincerity in invoking it. He believed that history demonstrated that the more a country prepared for war, the more likely it was to go to war. First, having a powerful military force offered a temptation to rulers to engage in wars for conquest and glory. And second, far from deterring aggression, a powerful navy and army often frightened other nations into building up their own forces and forming hostile alliances, tempting them to instigate hostilities for the purpose of gaining a strategic advantage or weakening their rival.

Jefferson believed that the Federalists, far from wishing to avoid war, actually welcomed war. In 1798 and 1799, the Federalists were eager to convert an undeclared naval confrontation with France into a full-scale war in order to obtain a formal military alliance with Great Britain. In the end, the only thing that kept the country out of a large war was President Adams’s last minute decision to reach an agreement with France. Jefferson was convinced that the Federalist leaders favored a war with France or Spain as a means to strengthen the federal government, increase the national debt, raise taxes, and place themselves in power.

“Jefferson rejected the Federalist axiom that in order to have peace one must prepare for war — the theory being that the more powerful a country was in armaments the less likely it was to be attacked. Jefferson doubted both the wisdom of this theory and Federalist sincerity in invoking it.”

Early in his first term, Jefferson was faced with the question of whether he should use the naval force inherited from the Federalists to protect American trade in the Mediterranean. The pasha of Tripoli, the leader of one of the four Barbary powers on the northern coast of Africa (the others being Morocco, Algiers, and Tunis), demanded additional tribute from the United States as the price for allowing American shipping to trade in the Mediterranean free of piratical raids by his navy.

The Barbary powers had been long extorting payments from the European states for the “privilege” of trading with them and for the freedom to navigate the sea without attack. Rather than combining to suppress these piratical powers, the Europeans decided to pay them off, either in cash or in the form of ships, arms, or military supplies. The Washington and Adams administrations had followed the established custom and made treaties with Algeria in 1795, Tripoli in 1796, and Tunis in 1797; in ten years, the Federalists had paid these powers more than $2 million in tribute. When Jefferson assumed the presidency and was faced with the demand for more money from the pasha of Tripoli, he refused.

Jefferson’s moral nature was no doubt offended by the prospect of paying for the privilege of not being robbed, but even more he must have seen this system of sordid bribery and intrigue as an impediment to his hopes for establishing free trade between the American republic and all the world, as well as an affront to the code of republican honor.

The pasha responded by taking down the American flag — a tacit declaration of war — and dispatching his warships to attack and capture American merchant vessels in the Mediterranean. In the spring of 1801, Jefferson dispatched three frigates and an armed schooner to the Mediterranean to protect American commerce and to intimidate Tripoli into honoring the 1796 treaty. Upon reaching Gibraltar in the late summer, the naval squadron found two Tripolitan cruisers on blockade duty awaiting American vessels. The American squadron chased off the two cruisers; the schooner Enterprise engaged one of them in battle and captured it; and the squadron proceeded to Tripoli where it blockaded the harbor. Thus, for the second time in only four years, the United States found itself in an undeclared naval war.

Jefferson sent additional forces to the Mediterranean each year until, by the summer of 1805, almost the entire American navy was deployed off the shores of Tripoli. In addition to escorting American merchant vessels and blockading Tripoli (in 1801 and 1803—1805), the American fleet bombarded Tripoli five times in August and September of 1804. By the early summer of 1805, facing a renewed and even more destructive series of bombardments from the American navy, and hearing of the fall of the town of Derbe to a land force composed of Americans, Greeks, and Tripolitan exiles commanded by William Eaton (the former American consul at Tunis), the pasha sued for peace and signed a treaty ending the war. The June 1805 treaty abolished annual payments from the United States to Tripoli and provided for the payment of a $60,000 ransom for more than 200 American captives, mostly sailors from the U.S. frigate Philadelphia that had been captured after running aground off Tripoli in 1803.

Was this war for free trade and national honor consistent with Jefferson’s stated policy of strict construction, peace, and economy in the public expenditure? Two things are clear. The pasha of Tripoli was the aggressor in this conflict, and Jefferson was committing armed forces to protect American lives and property from aggression. Yet because he failed to obtain a declaration of war from Congress, Jefferson was soon waging an undeclared war in violation of the Constitution. He thus set a dangerous precedent for future, more militaristic presidents.

The Tripolitan war naturally resulted in greater naval expenditures and higher annual federal spending than Gallatin had planned. Not only did Jefferson shelve his plans to lay up all the American frigates in dry dock but he even constructed five new brigs. Jefferson continued to pay tribute to the other Barbary States through the end of his second term. (Madison would continue making payments until 1816.)

“Yet because he failed to obtain a declaration of war from Congress, Jefferson was soon waging an undeclared war in violation of the Constitution. He thus set a dangerous precedent for future, more militaristic presidents.”

When he assumed office, Jefferson’s major foreign policy objective was to purchase the city of New Orleans from France and the two provinces of Florida from Spain. The commercial importance of New Orleans was immense, for it was the major port through which Americans who lived west of the Appalachians sold their agricultural products abroad. Because it could at any time close the port to American commerce, the power that controlled New Orleans possessed tremendous leverage against the United States.

West Florida was important for similar reasons. It contained the port of Mobile, and it controlled the outlet for the rivers that drained the fertile Mississippi territory. The Floridas were strategically important, for they provided Spain, one of the three great world powers, with a foothold contiguous to the southern border of the United States. By acquiring them, Jefferson not only hoped to provide more territory for American settlement but to secure the southeastern border against Spain without having to build forts and deploy regiments of regulars in Georgia and Mississippi. It would also lessen the potential of conflict between Spain and the U.S.

Such an acquisition, provided it could be accomplished without war, would be fully consistent with his policy of economy, peace, strategic isolation, and a small military establishment. In 1806, after Napoleon’s conquests reduced Spain to the status of a French vassal state, Jefferson had his secretary of state James Madison instruct the American ambassador to France to offer Napoleon $5 million for the Floridas and Texas.

The Louisiana Purchase

Arguably the greatest accomplishment of Jefferson’s presidency was the acquisition of Louisiana, bought from France for $15 million. The province was enormous at 828,000 square miles, and it contained some of the richest farmland in the world. Louisiana was comprised of New Orleans, a bustling city; St. Louis, a small city; a few isolated French settlements along the Mississippi; and some scattered Indian tribes. Other than that it was virtually uninhabited.

The story of its acquisition is a familiar one to most students of American history. After hearing of the Spanish retrocession of Louisiana to France, Jefferson instructed the American minister to France, Robert R. Livingston, to negotiate for West Florida and New Orleans. If that failed, he was to try to acquire some land on the lower Mississippi for an American port; and if that failed, he was to seek a French guarantee for free navigation of the Mississippi and the right of deposit at New Orleans.

In January 1803, Jefferson named James Monroe as minister plenipotentiary to France and sent him to Paris prepared to offer $10 million for New Orleans and West Florida. Just as Monroe was arriving in Paris, Talleyrand shocked Livingston by offering to sell not only New Orleans but the whole of Louisiana to the United States. Recognizing the advantages of such a purchase, Livingston negotiated a treaty. Both Livingston and Monroe signed the treaty and sent it to Jefferson.

When news of the Louisiana treaty reached Jefferson and Madison, they were exultant. Not only did the cession obtain New Orleans, but it secured the free navigation of the Mississippi River, removed a potentially hostile power from the west bank of the Mississippi, and provided a seemingly inexhaustible reserve of land for American settlement. It was fully in accord with Jefferson’s policy of making the country secure without resorting to war or funding an expensive military and naval establishment. They also believed that it would help preserve the agrarian character of the American confederation for generations to come.

How much credit does Jefferson deserve for acquiring Louisiana? Many Federalists charged that he deserved none at all, that he just happened to be president when Napoleon made his unexpected offer. While that is true, it is also true that Napoleon would never have offered the province to a pro-British Federalist administration. Napoleon regarded the Republicans as anti-British and in basic sympathy with his country. Napoleon hoped to cement ties of friendship with the Americans, to increase their debt of gratitude, and to entice them into joining France in a military alliance against the British Empire. Jefferson’s policy of neutrality and his well-known French sympathies created an environment in which Napoleon could feel safe in parting with Louisiana and could even hope to gain from it.

The Federalists opposed the purchase on two grounds. First, they warned that such a vast enlargement of territory would endanger the cohesion and the existence of the union. Jefferson responded by arguing that the confederal nature of the American republic made expansion safe:

Who can limit the extent to which the federative principle may operate effectively? The larger our association, the less will it be shaken by local passions; and in any view, is it not better that the opposite bank of the Mississippi should be settled by our own brethren and children, than by strangers of another family? With which shall we be most likely to live in harmony and friendly intercourse?

The “federative principle” was the principle of divided, or decentralized, power between the national and the state governments, under which the former was “charged with the external and mutual relations only of these states” while “the states themselves have principal care of our persons, our property, and our reputation.” Jefferson was asking why, given such a decentralized and flexible system, the union could not be doubled or even tripled in size? And in addition, the acquisition actually made it easier for the federal government to fulfill its constitutional responsibility of providing for the common defense.

“Jefferson’s policy of neutrality and his well-known French sympathies created an environment in which Napoleon could feel safe in parting with Louisiana and could even hope to gain from it.”

The Federalists also objected that the treaty was unconstitutional. After all, the Constitution conferred no power on the federal government to acquire foreign territory and incorporate it into the Union. On this point, Jefferson reluctantly concurred. He believed that the Louisiana treaty required not only Senate ratification but additional constitutional authorization through an amendment.

In fact, soon after receiving news of the treaty on June 30, he drew up an amendment that stated that “the province of Louisiana is incorporated with the United States and made part thereof,” and he distributed it to his cabinet. His cabinet did not seem to think that an amendment was necessary. His attorney general Levi Lincoln was indecisive; so was Madison; and Gallatin was emphatic that it was not needed at all. Earlier in the year, the latter had written Jefferson explaining that “the United States as a nation have an inherent right to acquire territory,” and “Congress have the power either of admitting into the Union as a new State, or annexing to a State with the consent of that State.”

Jefferson, however, remained convinced that an amendment was both necessary and prudent:

There is a difficulty in this acquisition which presents a handle to the malcontents among us, though they have not yet discovered it. Our confederation is certainly confined to the limits established by the revolution. The general government has no powers but such as the constitution has given it; and it has not given it a power of holding foreign territory and still less of incorporating it into the Union. An amendment of the constitution seems necessary for this. In the meantime we must ratify and pay our money, as we have treated, for a thing beyond the constitution, and rely on the nation to sanction an act done for its great good, without its previous authority.

This passage from an August letter to John Dickinson represented Jefferson’s settled opinion on the matter, which he had arrived at after conferring with his chief constitutional advisers — Madison, Gallatin, and Lincoln. He expressed the same idea in a letter to his friend John Breckinridge of Kentucky but added that an amendment adopted after the treaty had been ratified and paid for would constitute a popular endorsement of the acquisition and actually “confirm and not weaken the Constitution, by more strongly marking out its lines.”

Upon receiving a warning from Livingston in Paris that Napoleon might change his mind, Jefferson urged his cabinet and political associates to keep quiet for a time about the constitutional question so as not to give Napoleon a pretext for withdrawing his offer. Jefferson wanted the treaty ratified as soon as possible. However, he still thought it wise and necessary to adopt an amendment sanctioning the treaty. The draft amendment he distributed to members of his cabinet stated that

Louisiana as ceded by France to United States is made a part of the United States. Its white inhabitants shall be citizens, and stand, as to their rights and obligations, on the same footing with other citizens of the United States.

His draft also authorized the incorporation of Florida into the United States “whenever it may be rightfully obtained.”

Jefferson found himself almost alone in insisting that the Constitution did not sanction the acquisition of new territory, whether through conquest, purchase, or treaty. Not only was his cabinet not behind him, neither were his chief congressional supporters. The stalwart John Randolph, the Republican majority leader in the House, saw no constitutional difficulty in the purchase. Neither did Senator Breckinridge of Kentucky, nor Representatives Joseph Nicholson of Maryland or Caesar Rodney of Delaware.

Jefferson’s friend and political supporter Senator Wilson Cary Nicholas even wrote the president, urging him to drop his constitutional scruples. He warned that if Jefferson’s opinion were made public, it could produce mischief by creating a precedent for future infractions and giving the Federalists an issue with which to assail the administration. But creating a precedent was exactly Jefferson’s fear, and he did not think it a proper solution to pretend that they were not subjecting the Constitution to a very liberal reading when that was exactly what they would be doing. Nicholas argued that the Constitution already authorized incorporating new territory outside the territorial limits of the U.S. in 1783. Jefferson’s reply is one of the most cogent and eloquent expressions of the doctrine of strict construction ever penned:

I do not believe it was meant that they might receive England, Ireland, Holland, etc. into it, which would be the case on your construction. When an instrument admits two constructions, the one safe, the other dangerous, the one precise, the other indefinite, I prefer that which is safe and precise. I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it a blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the federal government, and gives all the powers necessary to carry these into execution. … Nothing is more likely than that their enumeration of powers is defective. This is the ordinary case of all human works. Let us go on then perfecting it, by adding, by way of amendment to the Constitution, those powers which time and trial show are still wanting. … I confess, then, I think it important, in the present case, to set an example against broad construction, by appealing for new power to the people.

However, Jefferson conceded that he would not insist on his view but would acquiesce in the prevailing opinion of the Republican Party for he trusted “that the good sense of our country will correct the evil of construction when it shall produce ill effects.” Jefferson’s concession would prove to be a fatal one, for the evils of broad construction would begin to work their mischief under Jefferson’s successor, James Madison, and “the good sense of the country” on this question would fall silent.

Henry Adams argued that “the Louisiana treaty gave a fatal wound to ‘strict construction’ and the Jeffersonian theories never again received general support.” This is simply not true. The “Jeffersonian theories” continued for 60 years to be the heart and soul of American political culture, and strict construction was by no means dead. Yet even if the wound were not fatal, it was serious; for the idea was planted that legislation for the good of the country should not be obstructed by an overly scrupulous adherence to the terms of the compact. Although he fails to note that the Federalists were the first to commit a serious breach of the Constitution when they chartered the first National Bank, the historian Henry Cabot Lodge understood the damage that the Jeffersonians had done.

Thus the first example was given of both the will and desire to violate the Constitution, if the popular feeling would sustain the executive and legislature in so doing; and in this fact lies the pernicious and crying evil of the Louisiana Purchase. It was the first lesson that taught Americans that numerical majority was superior to the Constitution and was a safe protection against it when violated, and that when policy approved the necessity of change, it was easier to break than to legally and regularly amend the provisions of our charter.

It is also true that the easy ratification of the treaty without even a discussion of an amendment made the Republicans seem inconsistent and hypocritical and provided ammunition for those consolidationists who saw the Constitution as an impediment to their dreams of national greatness. John Quincy Adams declared that the purchase of Louisiana represented

an assumption of implied power greater in itself and more comprehensive in its consequences, than all the assumptions of implied power in the twelve years of the Washington and Adams administrations put together. … After this, to nibble at a bank, a road, a canal, the mere mint and cumin of the law was but glorious inconsistency.

Jefferson acquiesced when he should have stood firm. While party leaders were not supportive, he still could have appealed directly to the people by penning a special message imploring them to ratify a new amendment specifying which territories could be incorporated in the Union and spelling out the exact procedure for admitting them as new states. Jefferson failed to understand that the Constitution was written to protect the people from themselves and that to rely on those very people to correct defects in the Constitution, only when those defects had been already exploited for ulterior purposes, was foolish indeed.

Historian Scott Trask is an adjunct scholar of the Mises Institute.

Licensed and reprinted under the Creative Commons 3.0 copyright

On May 1, 2010, President Obama delivered the commencement speech to the Class of 2010 at my alma mater, the University of Michigan.  In the address, the President noted Thomas Jefferson’s statement that “with the change of circumstances, institutions must advance also to keep pace with the times,” and extrapolated it into a defense of robust government activity and intervention in almost every area of our lives:

our government must keep pace with the times.  When America expanded from a few colonies to an entire continent, and we needed a way to reach the Pacific, our government helped build the railroads.  When we transitioned from an economy based on farms to one based on factories, and workers needed new skills and training, our nation set up a system of public high schools.  When the markets crashed during the Depression and people lost their life savings, our government put in place a set of rules and safeguards to make sure that such a crisis never happened again, and then put a safety net in place to make sure that our elders would never be impoverished the way they had been.  And because our markets and financial systems have evolved since then, we’re now putting in place new rules and safeguards to protect the American people.

The President, in other words, used Thomas Jefferson as a springboard to advocate for government power.  I suspect that there is little in the world more full of irony than a defense of big government using the mantle of Jefferson.  What would Jefferson have thought about the federal government building the railroads, regulating public education, dominating the financial system, and involving itself in health care?

First, let us address the quote that the President used as the commencement of his ideas: “with the change of circumstances, institutions must advance also to keep pace with the times.”  The quote is taken from a July 12, 1810 letter from Jefferson to Samuel Kercheval and is inscribed on the Jefferson Memorial. 

But what was Jefferson actually saying?  This was not, as President Obama claimed, a statement in defense of activist government.  Rather, it is a statement evidencing one of Jefferson’s lesser-known and more radical ideas – the concept of “generational tyranny.”  Jefferson believed that, just as one nation has no right to impose law or regulation on another, so one generation has no right to impose law on generations to follow:

That our Creator made the earth for the use of the living and not of the dead; that those who exist not can have no use nor right in it, no authority or power over it; that one generation of men cannot foreclose or burthen its use to another, which comes to it in its own right and by the same divine beneficence; that a preceding generation cannot bind a succeeding one by its laws or contracts; these deriving their obligation from the will of the existing majority, and that majority being removed by death, another comes in its place with a will equally free to make its own laws and contracts; these are axioms so self-evident that no explanation can make them plainer; for he is not to be reasoned with who says that non-existence can control existence, or that nothing can move something.

Letter to Thomas Earle, 1823.  Far from Jefferson’s comment about institutions keeping pace with the times reflecting faith in big government as the President stated, it actually reflects just the opposite.  Jefferson, for example, would not have believed that the Depression-era financial regulations could justifiably be imposed on the current generation.  He would have been opposed to any federal regulatory structure that persisted over generations as the outdated vestiges of long gone majorities which have no place in today’s society.

President Obama then went on to express exasperation at those who believe “that all of government is inherently bad.”  Based on this comment, Jefferson must provoke much exasperation from the President.  Jefferson valued resistance to government authority above almost all else.  In a 1787 letter to Abigail Adams, he remarked “The spirit of resistance to government is so valuable on certain occasions, that I wish it to be always kept alive.  It will often be exercised when wrong, but better so than not to be exercised at all.  I like a little rebellion now and then.  It is like a storm in the atmosphere.” 

In fact, Jefferson thought that anti-government rebellion should be contemplated as often as once every twenty years: “God forbid we should ever be twenty years without such a rebellion [as the American Revolution].”  Letter to William S. Smith, 1787.  Rebellion is described by Jefferson as “medicine necessary for the sound health of government.”  And almost everyone is aware of one of Jefferson’s most famous quotes:

What signify a few lives lost in a Century or Two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure.

Let’s call a spade a spade: Jefferson was radically anti-government.

Jefferson’s anti-government ideas had one primary focal point: the federal government. If Jefferson were alive today, he would certainly be a regular contributor to the Tenth Amendment Center, for he considered the Tenth Amendment to be the focus and the foundation of the entire Constitutional structure. In opposing Alexander Hamilton’s plan to establish a National Bank in 1791, Jefferson noted:

I consider the foundation of the [Federal] Constitution as laid on this ground: That “all powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States or to the people.” [10th Amendment]  To take a single step beyond the boundaries thus specifically drawn around the powers of Congress is to take possession of a boundless field of power, no longer susceptible of any definition.

Virginia's American Revolution

Thomas Jefferson is an American hero who spoke truth to power and was unafraid to say exactly what he thought, no matter how radical or crazy his ideas seemed.  His legacy should never be used – especially by the President of the United States – to support the principles of government intrusion and activism that he so deeply abhorred.

Jefferson “swor[e] upon the altar of God, eternal hostility to every form of tyranny over the mind of man.”  It is unfortunate that many Americans are not so hostile.  If they were, “liberty” today might mean more than a word on a coin.

Andy Quesnelle spent most of his early childhood in Cincinnati, Ohio and moved to Pittsburgh, Pennsylvania in 1992. He has lived in Pittsburgh ever since, except for the 7-year period during which he was in college and law school. He graduated from the University of Michigan in 2003 with a B.A. in History and Political Science. His primary areas of concentration were Colonial American History, 20th Century U.S. History, and American politics and government. He received his J.D. from Villanova University School of Law in 2006. Since then, he has practiced as a labor and employment attorney, representing management and employers, in Pittsburgh. He has always been a very strong advocate of states’ rights and decentralized government. He believes that Thomas Jefferson was absolutely right — government power is not to be trusted, and the more centralized government power becomes, the less it is to be trusted.

Author’s Update, May 15, 2010:

In my most recent article, “Hijacking Thomas Jefferson,” I explained why President Obama’s invocation of Thomas Jefferson to support government intrusion and intervention is unsupportable. My intention was to illustrate Jefferson’s thinking on these issues, which was the most radical of the Founders and was obviously colored by his unique experiences and the time in which he lived. I do not think that Jefferson’s literal views as to resistance to government are well-suited to our experiences and the time in which we live.

Thus, at the end of my article, I stated that if more Americans were “hostile” to “tyranny,” liberty might mean more than a word on a coin. The hostility to which I refer should be understood in the context of our times, not Jefferson’s. What I mean by this is that Americans should express their hostility to big government through persuasion, argument and the ballot box, not through literal armed rebellion as Jefferson spoke of. Indeed, one of the cornerstones of our country is that we all have the right and the means to use persuasion and argument to facilitate the victory of our points of view. This is what it means to be American.

Jefferson was, as I said, an American hero. He was an American hero because he helped establish liberty for all of us using means appropriate for his circumstances and times. American heroes today are those who use means appropriate for our times — argument, persuasion, campaigning and election — to advance their ideas.

“Resolved, That the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government . . . . and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force. . . . that the government created by this compact [the Constitution for the United States] 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; . . . . that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; . . . and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorised by the Constitution, shall be exercised within their respective territories.”

So wrote Thomas Jefferson, Vice President of the United States, in a document drafted at the request of members of the Kentucky legislature in 1798. Kentucky passed Jefferson’s paper and broadcast it to the world as the definitive opinion and stand of the sovereign people of the State. The language drafted by James Madison for similar documents adopted by the Virginia legislature in 1799 and 1800 was similarly unequivoical in its constitutional position and forceful in expression.

The people, acting through their natural polities, the States, had created and given authority to the Constitution of the United States. The Constitution conferred powers on a general government to handle certain specified matters that were common to the “general welfare” of all the States. That government was an agent. It could not be the judge of its own powers. To allow it to be so would mean nothing less than a government of unlimited power, a tyranny. The partners to the Constitution, the sovereign peoples of the States, were the final judges of what they had intended the Constitution to mean. When the general government exceeded its power it was the right and duty of the State to interpose its authority and defend its people from federal acts of tyranny – yes, to render a federal law inoperative in the State’s jurisdiction…

The scholars of the rising leftist Establishment who took over American history writing beginning in the 1930s invented a self-flattering fable to render the Kentucky and Virginia documents themselves null and void. Jefferson and Madison, they said, really did not care about States’ rights. They were merely anticipating the great tradition of the American Civil Liberties Union in opposing the Alien and Sedition Acts. Their concern was to defend the freedom of speech of the non-conformist radicals of their time.

This established interpretation is a lie and requires a good deal of either ignorance, self-deception, or deliberate falsehood to peddle. It is true that the Virginia and Kentucky acts were not followed up by active resistance to the feds. They did not have to be, because Jefferson and his friends won the following elections, got rid of the bad laws, and compensated those who had been harmed by them. There is evidence that Virginia and North Carolina were quite willing and able to call out the militia if necessary and that grand juries were standing by to indict any offending feds.

Not interested in State rights? Jefferson reiterated the centrality of State rights to the preservation of liberty and self-government in his inaugural address (and in hundreds of letters for the rest of his life). His party and the succeeding Democratic party proclaimed “The Principles of 1798″ repeatedly as their foundational philosophy, right up to the War to Prevent Southern Independence. It could not be clearer: in the American government system State rights and liberty could not be separated. They were the same thing. They had the same defenders and the same enemies. The Sedition Act was not just an invasion of individual rights, it was an illegal invasion of a sphere that the people had left to their States.

Further, the Sedition Act, punishing criticism of federal officials with jail sentences and fines, had been passed in stark defiance of the recently adopted First and Tenth Amendments which absolutely forbade Congress to pass any law abridging the freedom of speech and press and reserved to the States all powers not specifically conferred on the government. How then could Congress pass such a law as the Sedition Act? Because the Federalists, Hamilton and Adams and their supporters, justified their legislation by invoking the Common Law’s provisions about the punishment of “sedition.” The Common Law existed in each State to the extent that State had found it worthwhile to adopt it, but it had no place in a written document of delegated powers such as the Constitution for the United States. If the feds could ignore specified power limitations by grafting Common Law jurisdiction into the Constitution, then literally everything under the sun could be brought under their power. Not only that, but everything under the sun could be ultimately disposed of by the federal courts, which would become the new sovereign. This had to be stopped.

Interposition by Virginia and Kentucky was intended to halt the Northeastern elite’s relentless agenda to become the economic and moral overseers of all Americans through the federal machine. This has always been the engine for the unconstitutional usurpation of federal power – then, since, and now. When State interposition next came into serious play in the United States, the occasion was the tariff laws, by which the Northeastern elite had perverted a constitutional power to raise a revenue into a means of excluding foreign competition and creating a captive market for their profit.

After their service as presidents, Jefferson and Madison lived by their republican ethics – they were private citizens with no special right to interfere in public affairs. But they expressed opinions on issues of the day privately to those who asked and who they trusted. When, less than a generation after the “Principles of 1798″ had been proclaimed, the possible nullification of the tariff laws by South Carolina drew attention, Jefferson was gone from the scene. Madison, in contradiction of his own plain language and the circumstances of 1798–1800, claimed that state interposition was not what they had had in mind at that time. Historians who want to trash States’ rights and the South Carolina resistance to the tariff during 1828–1833 lean heavily on Madison’s somewhat vague statements. Self-evidently, Madison contradicted himself, as he did quite often throughout his career. Unlike Jefferson, he was a superficial and inconsistent thinker who often swung from one side to the other. (That is why his pretentious speculations in The Federalist, which, by his own admission, have absolutely no constitutional authority whatsoever, are the favourite text of third string “constitutional lawyers” and would-be “political philosophers.”)

We do not have to wonder what Jefferson in his post-presidential years thought about State interposition. It is not in the least a mystery, although it is something of a secret since “scholars” have assiduously avoided exposure of the relevant documents, which are not easy to find. In 1825, the day after his last Christmas in this earthly realm, Jefferson wrote to William Branch Giles, former Senator from Virginia and stalwart Jeffersonian. He shared Giles’s concerns about the state of federal affairs. “I see, as you do, and with the deepest affliction, the rapid strides with which the federal branch of the government is advancing towards the usurpation of all the rights reserved to the States, and the consolidation in itself of all powers, foreign and domestic; and that, too, by constructions which, if legitimate, leave no limits to their powers.”

The minority President John Quincy Adams was pushing a large program of federal expenditures and expanded powers. Adams and his Congressional allies, Jefferson said, for an example, had construed the delegated power to establish post roads into a power to cut down mountains and dig canals. The old, evil program of the Northeastern “monarchists” to enrich themselves off the earnings of the agriculturalists was once again in the saddle. Reason and argument were no good in such a situation. “You might as well reason and argue with the marble columns” in the Capitol.

The South might well be forced into a choice between “the dissolution of the Union with them, or submission to a government without limitation of powers. Between these two evils, when we must make a choice, there can be no hesitation.” However, not yet. “But in the meanwhile, the States should be watchful to note every material usurpation on their rights; to denounce them as they occur in the most peremptory terms, to protest them as wrongs to which our present submission shall be considered, not as acknowledgments . . . .”

Jefferson mentioned that he had written a letter to Giles on Christmas about important matters, of which Giles “will be free to make use what you please.” I have not found this letter, but it may have something to do with a document Jefferson wrote out on December 24, which he titled “The Solemn Declaration and Protest of the Citizens of Virginia on the Principles of the Constitution of the United States of America and the Violation of Them.” It seems to have been intended for the use of Jefferson’s neighbours in the grand jury of Albemarle County to begin a program for Virginia once more to interpose, against Congress’s usurpation in its “internal improvements” expenditures.

Just three years after Jefferson wrote this, another Vice-President of the United States, at the request of his State, drafted a “South Carolina Exposition,” which described the illegality and injustice of the protective tariff and the proper remedy for it: State interposition upon “The Principles of 1798.” This “Exposition” was approved and broadcast to the world by the legislature of South Carolina, along with a “Protest.” The usual clamour of rent-seekers and petty political operators was raised, claiming, among other things, that Jefferson had not written the Kentucky Resolutions. In 1831 Jefferson’s son-in-law produced the draft in the great man’s own hand.

[There was so much demagoguery broadcast by the opponents of nullification and the shoddy historians who repeat their propaganda, that it is worth saying something about the roles of Jefferson and Calhoun as drafters of the Kentucky Resolutions and the South Carolina Exposition. Jefferson, as we have noted, did not publicly acknowledge his authorship. Calhoun's authorship of the Exposition was characterised as an evil, secretive political operation. This propaganda is designed by and for people who can think only in terms of politicians and parties instead of principles and are ignorant of the ethics of republican virtue that influenced many Americans before Lincoln. Authorship was not acknowledged because it was desired that the statements be understood as the voice of the people of the State, not mischaracterised as merely the position of a national politician.]

In a later generation, another minority president seemingly destroyed forever the constitutional role of the States by declaring the open, democratic, deliberative acts of fourteen States to be only “combinations” of criminals who refused to obey him. Lincoln made that stick by a brutal war of conquest that did not “preserve the Union” but changed the Union into a central state with no limits to its power. Those who hope to revive a constitutional role for the States as counters to the present U.S. Empire, must hope to make the States once more into self-conscious, viable polities who have the political will to enact nullification and stand by it.

Clyde Wilson [send him mail] is a recovering professor. Now that he is no longer a professor of history he can at last be a real historian. He is the editor of The Papers of John C. Calhoun.

Copyright © 2010 by LewRockwell.com. Permission to reprint in whole or in part is gladly granted, provided full credit is given.

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.