Some people believe that all branches of the federal government should fully enforce all federal laws until they’re overturned by a court or repealed by Congress. But the Founders disagreed. In many cases, vehemently.
In response to the hated Stamp Act, Patrick Henry drafted a series of resolutions denouncing the Act and declaring it to be “illegal, unconstitutional and unjust.” The Virginia House of Burgesses passed the resolutions in late May 1765.
An additional resolution foreshadowed nullification by declaring that Virginians were not obliged to obey any tax laws not enacted by their Assembly.
Resolved, That his majesty’s liege people, the inhabitants of this colony, are not bound to yield obedience to any law or ordinance whatsoever designed to impose any taxation whatsoever upon them, other than the laws and ordinances of the general assembly aforesaid.
While this resolution was not passed, it was circulated in a number of prominent newspapers and gave Henry recognition among his contemporaries as “the man who gave the first impulse to the ball of revolution.”
The principles in this resolution took hold in spite of legislative defeat, especially in Boston, where Samuel Adams and the “Loyal Nine” took to the streets. By October of that year, just two weeks before the Act was set to go into effect, John Hancock sent a letter to his London agent, Johnathan Bernard, capturing the spirit of the time.
The people of this country will never suffer themselves to be made slaves of by a submission to the damned act.
While these events happened many years before ratification of the Constitution, the notion that some laws should be rejected or even actively resisted was deeply-rooted in the American tradition.
During the 1788 Hillsborough Convention, North Carolina delegates opposing ratification of the Constitution outnumbered those in favor by about 2-1. Archibald Maclaine was a well-known attorney in the state and a leader in opposition to the Stamp Act years earlier. He argued in favor of ratification and suggested the same kind of resistance as a response to federal overreach. He said,
If Congress should make a law beyond its powers and the spirit of the Constitution, should we not say to Congress, ‘You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. That act is unconstitutional. We will disregard it and punish you for the attempt.’
In the Massachusetts Ratifying Convention, federalist Theophilus Parsons made a similar case. He said, “An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.”
Even Alexander Hamilton, writing in favor of ratification in Federalist #33 said that federal acts outside of the Constitution would not be supreme. Instead, he noted,
These will be merely acts of usurpation, and will deserve to be treated as such.
Prominent founders also held the view that some federal acts shouldn’t be enforced at all, even without a court striking them down or a congressional repeal.
Thomas Jefferson put this principle into action during his presidency, saying he had a duty to arrest the execution of the Sedition Act. He explained his actions in an 1804 letter to Abigail Adams:
I discharged every person under punishment or prosecution under the Sedition law, because I considered & now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden imag