The Constitution placed strict limits on the federal government. What do we do when it oversteps its bounds?
Imagine that Congress passes, and the president signs, a series of laws granting the executive branch the power to deport non-citizens or immigrants from certain countries. Another set of laws make it harder for immigrants to become citizens, nearly tripling their waiting period before they are eligible for citizenship, while yet another law criminalizes speech critical of the Federal government.
The Supreme Court being filled with justices from his political party, the president knows that overturning these laws via the judicial system will be an impossible task for many years to come. Although thousands march in protest, the ink on the laws has dried, and the will of the president, and a majority of the members of Congress and the Supreme Court, has trumped the will of the people.
One wonders: what would the founders of this great country – like the author of the Declaration of Independence and the “Father of the Constitution” – have thought of these laws?
Although modern demagogues have made the above scenario appear du jour, such laws are not unprecedented. The Alien and Sedition Acts, signed by President John Adams in 1798, were intended to curb immigration from hostile nations, criminalized purportedly false statements critical of the federal government, and gave the president power to imprison and deport “dangerous” non-citizens. The passage of these laws caused Adams’ own vice president, Thomas Jefferson, to surreptitiously partner with James Madison and author two resolutions, which to this day are two of the most debated documents in constitutional law.
The Kentucky and Virginia Resolutions of 1798 argued that the states that comprise the newly formed Union had the right and the duty to assess the constitutionality of federal laws. The resolutions laid out the reasons why the state legislatures of Kentucky and Virginia deemed these acts unconstitutional, and entreated other states to follow their example.
In drafting the Kentucky and Virginia Resolutions, Jefferson and Madison set out to answer an important question: who is the final arbiter of what is and is not constitutional?
Jefferson and Madison argued persuasively in these resolutions that it is the people of the United States, acting through the states, who get to final decision on the constitutionality of federal laws. After all, if “the general government is the exclusive judge of the extent of the powers delegated to it… the discretion of those who administer the government, and not the constitution, would be the measure of their powers” Jefferson argued in the Kentucky Resolutions.
In other words, the state legislatures must have the right and authority to judge the constitutionality of federal laws, since otherwise the federal government would be able to play judge, jury and executioner. If there is no entity able to restrict the powers of the federal government other than the federal government itself, then its size will invariably continue to expand.
What, then, was unconstitutional about the Alien and Sedition Acts of 1798?
Although over 200 years later, the unconstitutionality of such laws is not really in question, in 1798 the Bill of Rights was not even 10 years old. Its authority, and the limits it imposed on the power of the federal government, had never been seriously tested before. Jefferson and Madison argued that the Alien and Sedition Acts violated two fundamental amendments in the Bill of Rights.
While many would argue, correctly, that the acts violated the freedom of speech guaranteed by the first amendment of the Bill of Rights, a much more fundamental right was trampled on by these acts. In penning the Virginia Resolution, Madison was careful to emphasize that they gave the federal government power that was “no where delegated to the Federal government.”
In this one statement, Madison stressed the importance of the Tenth Amendment of the Bill of Rights.
This crucial amendment, so often neglected by today’s politicians, serves to further limit the power of the federal government by denying it any powers that it is not explicitly given in the Constitution, instead giving these to the states.
The framers of the Constitution realized that authority must be expressly granted to the Federal government by the consent of its people, those it is designed to govern. Beyond the checks and balances between the three branches of the Federal government, therefore, the final, ultimate check on its power must come from the people, through their state legislatures, which have the right to reject any Federal laws they deem unconstitutional.
To Madison and Jefferson, therefore, the problem of the Alien and Sedition Acts of 1798 extended beyond their obvious violation of freedom of speech, but to their much more lasting precedent of giving the federal government increasingly unchecked power that was never delegated to it in the first place. In an unbelievably prescient statement, Jefferson writes in the Kentucky Resolutions:
“If those who administer the general government be permitted to transgress the limits fixed by [the Constitution] … annihilation of the state government… will be the inevitable consequence.”
The problems foreseen by Jefferson and Madison resonate more than ever during this year’s election cycle. Candidates on both the right and the left have proposed involving the federal government in issues, from immigration to health care, that are without a doubt, outside of the powers granted to it by the Constitution of the United States of America. As the Supreme Court hangs in the balance, it is unlikely to oppose the policies of the newly elected president, who will undoubtedly appoint a justice amenable to his or her policies. The present situation is precisely what Jefferson and Madison foresaw when they authored the Kentucky and Virginia Resolutions.
Returning the power to check the Federal government to the states, where it belongs, is the only way to prevent the further destruction of our Constitution.
- The Kentucky and Virginia Resolutions: Introduction to Nullification - August 30, 2016