NATIONAL SECURITY IN THE REVOLUTIONARY WAR ERA
I only regret that I have but one life to give for my country.*
—CAPT. NATHAN HALE
When General Washington rode out to accept his command at Cambridge, he was within a few feet of one of the most famous spies in the American Revolution: Dr. Benjamin Church.1 Church was an agent of the British government prior to the Revolution, as early as 1775.2 At the time his treason was uncovered—through the carelessness of a lady of the night*—he held several prominent posts, including chief physician and director general of the Continental Army, and delegate to the Massachusetts Provincial Congress.3 Dr. Church was a man with the pedigree of a Founding Father, but to the rebels was a wolf in sheep’s clothing.
Rather than being tried by the Continental Congress, he was courtmartialed with Gen. George Washington himself as judge.4 Church was charged with “communicating with the enemy”5 because no espionage statute existed at the time6 (that was created in 1917). However, Church survived his conviction and sentence because the Articles of War adopted by the Continental Congress capped the maximum penalty for such communications at thirty-six lashes and a modest fine.7 As a result, the Continental Congress soon adopted the death penalty for such correspondences with enemy agents, at Washington’s request.8
I recount this story for three reasons: First, to show how seriously dire the Revolution was. It is unimaginable today that the state of national security would be in such peril that President Obama would have a Chinese spy employed as surgeon general and intimately involved in military decisions. Second, because the attention on spies and intelligence in American history has tended to focus on the Benedict Arnold affair and then skip to the intrigues of the Cold War, many forget the important role that intelligence gathering and spies played in every major American war. Paul Revere, more famous for his ride than as a spy, ran a group of American spies in Boston that provided much valuable intelligence to the folks actually fighting the war.9 Third, and of paramount importance for our purposes, Church was afforded the process due to an officer of the Continental Army during a war when “the courts” were not merely closed, but ten years away from conception.
Intelligence was so precious in 1775 that the Continental Congress formed three committees to function as a “congressional CIA”: The Secret Committee, the Committee of Correspondence, and the Committee on Spies. The aptly named Secret Committee was the first of these, created on September 18th 1775.10 It was essentially an espionage ring charged with obtaining military intelligence and engaging in covert operations against the British army and navy during the Revolution.11 Its members engaged in treason against the British government. Among its members was Benjamin Franklin, who served as a spy during the war.12
This Committee was given wide powers and large sums of money to obtain military supplies in secret, and was charged with distributing the supplies and selling gunpowder to privateers chartered by the Continental Congress. The Committee also took over and administered on a uniform basis the secret contracts for arms and gunpowder previously negotiated by certain members of the Congress without the formal sanction of that body. The Committee kept its transactions secret, and destroyed many of its records to assure the confidentiality of its work.
The Secret Committee employed agents overseas, often in cooperation with the Committee of Secret Correspondence. It also gathered intelligence about Tory secret ammunition stores and arranged to steal them. The Secret Committee sent missions to plunder British supplies in the southern colonies. It arranged the purchase of military stores through intermediaries so as to conceal the fact that the Continental Congress was the true purchaser. The Secret Committee used foreign flags to protect its vessels from the British fleet.13
Benjamin Franklin didn’t serve on just one intelligence committee. During the Revolutionary War, it would be apt to call his activities essential to running the CIA–like Secret Committee, as well as the State Department–like Committee of Correspondence.14 Early on, the Founding Fathers changed the Committee of Correspondence to the Committee of Secret Correspondence15—apparently they liked to keep something secret by calling it secret, notwithstanding Franklin’s famous quip that three people can keep a secret only if two of them are dead!
Keeping with the tendency to hide the real purpose of intelligence work, the resolution to create the committee appointed it “for the sole purpose of corresponding with our friends in Great Britain and other parts of the world.”16 The Founding Fathers had a broad vision for their intelligence network: The Committee of Secret Correspondence “employed secret agents abroad, conducted covert operations, devised [and cracked] codes and ciphers, funded propaganda activities, authorized the opening of private mail, acquired foreign publications for use in analysis, established a courier system, and developed a maritime capability apart from that of the Navy.”17 One result of the committee’s work was the securing of an alliance with France in 1778 through Ambassador Benjamin Franklin.18
John Adams, the president who advocated for and later signed into law the profoundly unconstitutional Alien and Sedition Acts in 1798,19 was selected to sit on the Committee on Spies.20 The committee was charged with “consider[ing] what is proper to be done with persons giving intelligence to the enemy, or supplying them with provisions.”21 Thomas Jefferson also sat on the committee.22 In its final report, the committee concluded by borrowing definitions from English law,23 punting the issue of how to punish traitors to state legislatures and meanwhile declaring that such persons are “guilty of treason against such colony.”24
Thus, the foundation was laid for the establishment of a covert foreign intelligence and operations arm of the American government, a tradition of fair judicial process prior to punishing alleged traitors (through the example of Dr. Church), and a body of law which protects accused treasonous actors and respects their rights under definitions borrowed from the English.
The Treason Clause and the First Amendment
In the Federalist No. 43, James Madison described the inclusion of a Treason Clause as addressing a “peculiar danger” and a “great judgment.”25 What exactly was this danger?
In the Revolutionary era, the word traitor had a broad meaning. To contextualize it with modern examples, the term as used in the 1700s would apply not only to the traditional Benedict Arnold but also to the Pullman strikers in 189426 or to domestic terrorists today.27 Those sorts of criminals, the Timothy McVeighs of the world, were the ones the Founding Fathers wanted to ensure would enjoy “additional procedural protections beyond . . . and preceding what the Fifth Amendment provides.”28 Imagine that today if a labor strike got a bit out of hand, the Justice Department’s reaction would be to trounce union members’ right to assemble in protest by arresting and charging them with treason—a capital offense! England was none too kind to traitors and did not afford those accused of the crime much protection.29 Male traitors were hung, drawn, and quartered—a gruesome process involving dismemberment, castration, hanging, and disembowelment30—often on scant evidence for the crime of imagining the death of the king.
The Founding Fathers believed the harsh treatment of traitors as compared to other criminals resulted from the sentiments of the judge, jury, prosecutor, and lawmaker being distorted by the unique feeling of harm following an attack on the government, as Randolph Bourne described.31
The Founders felt compelled to make another advance in codifying the rights of even the most hated criminals: Spies and traitors.32 Thus, they grafted into the Constitution a restrictive and exclusive definition of the crime of treason and enumerated protections for those within its ambit:
Treason against the United States, shall consist only in levying War against them, or in adhering to their Enemies, giving them Aid and Comfort. No Person shall be convicted of Treason unless on the Testimony of two Witnesses to the same overt Act, or on Confession in open Court.
The Congress shall have Power to declare the Punishment of Treason, but no Attainder of Treason shall work Corruption of Blood, or Forfeiture except during the Life of the Person attainted.33
The Treason Clause reflects the minimum bar of protecting individual liberty against encroachment of the state: It prevents the government from attacking a person’s rights under the guise of crime against the state; it does not include an affirmative protection of the right to dissent and to protest in assembly.
In order to prevent the national security interests of the government from encroaching on the political interests of “factions,”34 through lesser means than the noose or sword, the Founders later included an amendment to the Constitution. The First Amendment enlarged the protections of the Treason Clause’s negative bar35 by pronouncing that minority faction dissenters would be subject to “no [congressional] law . . . abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”36
Accordingly, between the Treason Clause and the First Amendment, the Founding Fathers rejected seven hundred years of English precedent and ensconced a bias in favor of the freedom to express dissenting opinion, in negative constitutional clothing, at the expense of the national security prerogatives of the government;37 and they did so in express terminology that recognized the primacy of natural rights.
The Pompton Mutiny and the Whiskey Rebellion
As lofty as the Founders’ words sound to us, they were flawed men. Several owned slaves while concurrently espousing ideals of natural rights and individual equality.38 For our purpose, their most notable flaw was their proclivity toward violating their own laws affording protections to those who “betray” the United States. The best examples of this inclination to “[c]ry ‘Havoc,’ and let slip the dogs of war”39 at the expense of individual liberty are the Whiskey Rebellion and the Alien and Sedition Acts of 1798.
However, our forebearers also showed an inclination to strive to be better, and to treat men with respect toward their natural liberties, complying with the Constitution. This section focuses on the Whiskey Rebellion and executing traitors, while the next addresses the abominable 1798 acts.
In 1791, during Washington’s first term, western Pennsylvania farmers decided to resist by force the government’s collection of an excise tax on whiskey.40 The Militia Act of 1792 required that a federal judge certify that “combinations too powerful to be suppressed by the ordinary course of judicial proceedings” were preventing the government from enforcing the laws before the president could send out the militia to suppress any insurrection.41 Supreme Court Justice James Wilson made that certification in a process similar to granting a warrant and effectively, by virtue of that declaration, the farmers were branded as traitors. Washington called up several Pennsylvania militia; it was “the first and only time a sitting American president led troops in the field.”42
Earlier, when faced with mutineers from the New Jersey Continentals, Washington took a different route. Around ten years before the Whiskey Rebellion, on January 20th 1781, Washington was facing extreme circumstances at Valley Forge and “fear[ed] the total dissolution of the Army.” A group of about two hundred New Jersey troops, following the example of their Pennsylvania neighbors who had mutinied earlier and resolved on favorable terms,43 decided to stop following orders and marched toward Trenton.44 Washington ordered General Howe to put down the rebellion with force.45 Two men were executed as ringleaders.46
Thus, when George Washington was faced with mutiny under dire circumstances before he was president, he chose to exercise power under the authority of war, unequally ordering executions for two traitorous mutineers and negotiating in good faith with the Pennsylvania mutineers. At stake, of course, in New Jersey in 1781 and Pennsylvania in 1794, was the right to life. Would Washington respond differently to a revolt against authority when he was president, bound by a social compact that contained a Treason Clause?
In 1794 when the Whiskey Rebellion finally ended, facing an overwhelming force of 12,950 militiamen,47 two men stood convicted of treason. However, this time, the rebellion ended “not with a bang but a whimper”:48 “A few men were arrested and brought back to Philadelphia for [civilian] trial[s in a Pennsylvania state court]; all were acquitted except two, and these were eventually pardoned,”49 by Washington.50
Setting the example for future presidents, Washington permitted the rebels to be tried in, and freed by, state courts, and later exercised his personal, presidential prerogative of mercy toward those who brought their grievances against the government, even in the form of violence, by pardoning them.* Washington, despite overseeing many battles, still seemed to have the utmost reverence for due process and an individual’s right to life.
The Alien and Sedition Acts of 1798
In the late 1790s, the federal government initiated its first statutory encroachment upon free speech and the First Amendment to the U.S. Constitution: The Alien and Sedition Acts of 1798.
History of the Acts: The XYZ Affair
Of all the foreign events that took place in the 1790s, none was as influential on the new government of the United States as the French Revolution.51 After the French revolt—during which the king had been executed without trial—every major European power declared war on France in fear that its own respective monarchy would suffer challenges to its authority and a similar grisly fate. Under the leadership of President Washington, the United States maintained a strict policy of unity at home and neutrality abroad.52 In its refusal to support either the British or the French in the aftermath of the French Revolution, the United States incurred the hostility of both countries.53
The British navy began seizing American sea vessels, and France began declaring American ships to be pirates. Naturally, these acts of aggression brought the United States and Britain to the brink of war for the second time.54 President Washington dispatched Chief Justice John Jay to London to negotiate an Anglo-American peace treaty in 1794.55 France interpreted the treaty with Britain as a cancellation of the long-held alliance between the United States and France, thus fanning the flame between the two countries for years to come.56
In 1796, a bitter American presidential election transpired between John Adams and Thomas Jefferson. The two major parties of the time, the Federalists and the Democratic Republicans, were fiercely at odds with each other. Some Americans even darkly predicted “a civil war in which ‘we shall divide’ into Federalists and [Democratic] Republicans.”57 With a narrow lead of three electoral votes, John Adams and the Federalists defeated Thomas Jefferson and the Democratic Republicans to become the second President of the United States, and Jefferson became the vice president. Soon after his inauguration, Adams requested that Congress establish a provisional army and increase the size of the navy to protect American merchant ships abroad and to defend the nation against attack.58
Finally reaching the presidency after two terms as Vice President of the United States, Adams was eager to negotiate an agreement with France. He dispatched a delegation led by Secretary of State John Marshall, who later served as Chief Justice of the United States Supreme Court, to Paris.59
When the American emissaries arrived at the French capital, the final French revolutionary government, the Directory, was experiencing a financial crisis, resulting from the post-Revolution conflict and French military losses in Europe. Marshall viewed the French government with intrigue and considered the French both arrogant and decadent.60
The American envoys found themselves unable to meet French foreign ministry officials. Instead, Marshall and his colleagues were approached by three French intermediaries who informed Marshall that the French foreign minister would not meet with the Americans unless certain concessions were made: A low-interest loan to France from the United States, an assumption by the United States of all merchant claims against France, and a substantial bribe to the French foreign minister, the Marquis de Talleyrand.61
Marshall and the other American envoys were flabbergasted. They were neither prepared nor willing to make such concessions as they were doubtful that they would even be able to see the French foreign minister in the first place.62
It was a very good thing that the Americans did not succumb to the demands of the French because the situation quickly changed. With the number of French military victories in Europe increasing, the French changed the terms of the proposed agreement with Marshall. When the American envoys once again rejected the French offer, Talleyrand threatened to invade the United States. Word eventually reached Adams back in Washington, prompting a wave of patriotic fervor to sweep the nation and leading to a call for a formal declaration of war against France.63
The Republicans became suspicious of Adams and demanded to see copies of the correspondence between Adams and Marshall. Adams obliged. However, he replaced the names of the French intermediaries and Talleyrand with the letters W, X, Y, and Z.64 Historians have referred to the events which almost led to the quasi war with France as the XYZ Affair.
As happened many times in American history, Congress was all too willing to have a knee-jerk reaction to the threat of war. To quote Randolph Bourne: “The citizen throws off his contempt and indifference to Government, identifies himself with its purposes, revives all his military memories and symbols, and the State once more walks, an august presence, through the imaginations of men.”65 Congress granted virtually every request made by Adams, including funds for the addition of warships, fortification of the nation’s harbors, and the creation of the Department of the Navy.66
The relationship between political parties became even more adversarial following the crisis in Europe.67 Republicans saw the possibility of war with France as “an extension of the American promise of liberty, republicanism, and democracy,”68 while the Federalists saw it “as a menacing harbinger of disorder, licentiousness, and atheism; . . . a clear and present danger to the established order.”69 To Adams and the Federalists, immediate action was needed to prepare the nation for war, whatever the cost. Despite the unwavering call for a formal declaration of war, Adams adamantly declined to seek one. After dispatching a new set of emissaries to Paris, Adams was eventually able to negotiate peaceful terms between the United States and France with Napoleon, who in November 1799 overthrew the French Directory.70
The Three Alien and Sedition Acts
At this critical juncture, the Federalists observed and seized the opportunity to strike a major blow at the Republicans. The Federalist-controlled Congress enacted legislation manufactured to quash both dissenting opinion and their opponents, the Republican Party. They called their new law the Alien and Sedition Acts of 1798.71 The legislation was composed of four acts: the Alien Enemies Act, the Alien Friends Act, the Sedition Act, and the Naturalization Act.72
The Alien Enemies Act73 provided that, in the case of a declared war, citizens or subjects of an enemy nation residing in the United States could be detained, confined, or deported at the discretion of the president. The thinking behind this was that enemy aliens have an allegiance to a nation with which the United States was at war. Many Americans in the late 1790s held the belief that the nation was facing an internal danger from foreign-born immigrants.74 Between 1790 and 1800, waves of immigrants came to America from countries like France, Ireland, and Germany.75 Moreover, the Federalists viewed these immigrants as a political base for the Republicans.76 Unbelievably, this Act is still valid law today,77 and the attitudes that supported it are still prevalent.
The second Alien Act to be made law by Congress was the Alien Friends Act.78 Seen as an emergency measure that would expire on the final day of Adam’s term of office, the Act imbued the president with the power to seize, detain, and deport any non-citizen he deemed a danger to the United States. Edward Livingston, a New York Democratic-Republican congressman observed: “[With] no indictments, no jury, no trial, no public procedure, no statement of the accusation, no examination of the witnesses in its support; no counsel for defence: all is darkness, silence, mystery and suspicion.”79
These two legislative actions themselves were morally outrageous and directly contrary to the Natural Law and the Constitution. Not only did the Alien Friends Act violate the search and seizure provisions of the Fourth Amendment, it disregarded the innate principle that all persons, regardless of citizenship, are presumed innocent and retain personal freedoms until they are provided due process and proven guilty of a crime under the law. The Alien Friends Act placed entirely too much (unconstitutional) power in the hands of the president, ostensibly as a war power. With this power, the president was able to sidestep due process, the right to counsel, and judicial review all at once. Thankfully this law, unlike its companion piece, the Alien Enemies Act, is one for the history books and has expired.
The Sedition Act of 179880 went even further in eroding fundamental free speech rights, and the Act became the centerpiece legislation of the Federalist Congress. Throughout the rest of U.S. history, based on this precedent, the national wartime sedition–type acts would repeat as a principal instrument in repressing American liberty. Section 2 of the Act reads, in part, as follows:
That if any person shall write, print, utter or publish . . . any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame [them] . . . , or to bring them . . . into contempt or disrepute; or to excite against them . . . the hatred of the good people of the United States, . . . then such person . . . shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.81
Containing a sunset provision, the Act automatically expired at the end of Adams’s term.82 “The ability of the opposition press to attack the Alien and Sedition Acts was chilled by the prospect of prosecution under the Acts themselves.”83 Supporters of the Act justified the legislation as an emergency power that was necessary to save the country in light of the prospect of war.
However, the First Amendment was designed to protect against government abuse such as this. But it is not just the Constitution that directly states “no” such piece of legislation may be enacted, but also the Natural Law. Speech is one of the few abilities that human beings share across all creeds, faiths, races, and ethnicities. By nature, it connects us, it strengthens us, and it empowers us. Speech as affirmation or as dissent should be cherished and respected. No one, not even a government with the consent of all governed, has the right to restrict or alienate an individual’s peaceful expression of speech, particularly government that expressly contracts that right in the social compact. Not surprisingly, these “emergency” national security laws proved to be entirely deceptive.
With the downfall of the Federalists nationally, Jefferson and the Democratic Republicans were able to win the presidency and a majority of congressional seats in the election of 1800. Congress repealed the Naturalization Act in 1802, and with the exception of the Alien Enemies Act, the other Acts were allowed to expire.84 The Federalists’ action flew in the face of the fundamental principle of free speech: “If all mankind minus one, were of one opinion, and only one person were of the contrary opinion, mankind would be no more justified in silencing that one person, than he, if he had the power, would be justified in silencing mankind.”*
How could the same generation, in some instances, the same human beings who wrote, “Congress shall make no law . . . abridging the freedom of speech,” enact a law that did just that?
Imagine being fined an impossible amount of money or being silenced and thrown in jail just for expressing a political opinion. Next, imagine that there is no ability to declare bankruptcy, so you stay in jail until the fine is paid. Then imagine that you are a U.S. congressman, imprisoned under such a scheme for mocking the president. These thoughts are not just figments of imagination; they were reality in 1798.
In the course of the congressional debates on the passage of the Alien and Sedition Acts of 1798, several Republicans became widely recognized and despised by the Federalists.85 One such Republican was Congressman Matthew Lyon of Vermont. In the October 1st 1798 issue of a magazine that he had established in Vermont, Lyon proclaimed: “When the executive puts forth a proposition injurious to my constituents and the Constitution, I am bound by oath . . . to oppose it; if outvoted, it is my duty to acquiesce—I do so; But measures which I opposed [in Congress] as injurious and ruinous to the liberty and interest of this country . . . you cannot expect me to advocate at home.”86
On October 5th 1798, a federal grand jury indicted Matthew Lyon for sedition.87 The indictment officially charged Congressman Lyon with “malicious” intent “to bring the President and government of the United States into contempt” and that he had violated the Sedition Act both by accusing the Adams administration of fostering “ridiculous pomp, foolish adulation, and selfish avarice,” and by quite thoroughly stating in his magazine that President Adams should go to a “mad house.” After an hour of deliberation, the jury returned a guilty verdict. Stunned, Lyon expected a slap on the wrist and a modest fine. Instead, Justice Paterson of the Supreme Court,88 serving as a circuit justice, imposed a sentence of four months in jail and a fine of one thousand dollars. The court also ordered that Lyon would stay in jail indefinitely past the four months if his fine were to remain unpaid.89
This is not the end of this melodramatic tale—what happened next is truly inspiring. Congressman Lyon launched a vigorous congressional reelection campaign. From inside his jail cell he championed his cause of natural rights and free speech with the U.S. Constitution as his platform.90 Not only did Lyon win a stunning reelection victory, but several thousand Americans signed a petition asking President Adams to pardon him. The States of Virginia and Vermont competed to raise enough funds for the release of Lyon, eventually raising almost double the fine amount.91
The will of the American people had made itself known: Censorship and tyranny are not akin to the American way. When Lyon returned to Washington to take his seat in the House, the Federalists attempted to block him. However, they were unsuccessful in their bid, failing to reach a two-thirds majority.
The Kentucky and Virginia Resolutions of 1798; Nullification
Individuals in Congress were not the only ones who saw through the haze of quasi-war patriotism to the unconstitutional nature of the Alien and Sedition Acts. Kentucky and Virginia passed resolutions92—said to have been drafted by Thomas Jefferson and James Madison, respectively, and written incognito—which declared that the Alien and Sedition Acts were unconstitutional and unenforceable.93
While the Alien and Sedition Acts were the main cause for the authoring of the Kentucky and Virginia resolutions, the larger and more infamous constitutional issue which emerged, and to which we now turn, concerned federalism. More specifically, they turned to the notion that a state had the power to nullify federal law if it deemed the law inconsistent with the Constitution.94 The resolutions present a visualization of an American governmental structure not as a unitary, all-powerful government but as a “league of sovereign states,”95 that ceded some of their autonomy and power to the federal government via the Constitution, for the express stated purposes and only the express stated purposes set forth in the Constitution.
The resolutions present the correct interpretation that the Constitution is a contract made not between the people and the federal government but the states and the federal government. “Because the Constitution is a contract, [the resolutions argued], it is to be interpreted according to the ‘intent’ of the contracting parties.”96 The original intent of the contracting parties, the states, was the strict adherence by the federal government to the plain reading of the Constitution.
The states did not cede their sovereign power only to have the federal government later interpret how much power was actually given; rather, a finite and limited amount of autonomy was transferred. “Strict construction was justified by reference to the ‘maxim of political law’ that a sovereign can be deprived of any of its powers only by its express consent narrowly construed.”97 Out of the states the federal government was created: Original governmental authority not released to the federal government at the time of ratification remains with the states themselves.
Several other states rejected the open-ended claims of Kentucky and Virginia that a state could nullify federal law; however, the resolutions and the Republicans who authored them were “triumphantly vindicated” when, in the election of 1800, the Federalists were thrown out of office and the Republicans gained control of both Congress and the presidency.98 With the influx of new elected officials, America saw an end to the destructive Alien and Sedition Acts (discussed supra). Although Madison later stated that he did not approve of the Nullification Doctrine, the Kentucky and Virginia resolutions were instrumental in South Carolina’s decision to nullify federal law in 1832, which is widely seen as a catalyst for the War between the States.99
In large part, the doctrine of nullification follows logically from the idea of the consent of the governed. In his book Nullification: How to Resist Federal Tyranny in the 21st Century, the historian and economist Thomas E. Woods discussed the transfer of sovereignty from the people to the state governments and from the states to the federal government.100 Woods effectively pointed out that in the American constitutional democracy, sovereignty ultimately rests with each person as an individual.101 Thus, when the people formed political combinations as states, they carved out and transferred the ability to exercise sovereignty over those states, but retained ultimate custody of political powers. The states, by act of state legislature or convention, ratified and adopted the Constitution; the people did not do so as individuals. Therefore, when speaking of the Constitution, it is most appropriate to refer to it as an agreement among “we the states,” not “we the people”: “The states, rather than some [collective] single American people, created the federal Union” and were the parties to that contract.102
Nullification then seems to follow very logically: The people have and retain the sovereign power; the people delegate some of that sovereign power for use by the states to prevent domestic force or fraud in accord with state constitutions; the states enter a compact called the Constitution for mutual protection against foreign force or fraud and to facilitate trade, and they delegate some of those powers to the federal government; the federal government acts in a manner inconsistent with the Constitution under the pretense of preventing force or fraud; the action taken by the federal government is null and void as it did not have the legal power to act in that manner, and the other party to the contract may declare it to be null. Woods also pointed out that the open defiance of federal marijuana laws, the REAL ID Act of 2005, and the federal time zones in several states are modern examples of states exercising nullification power.* The act of joining the Union was a simple act of the legislature of each of the fifty states. There is nothing in the history of those simple legislative acts to suggest that all states must conform to all acts of Congress—even those that are clearly ultra vires.** “All of us need to be reminded that the Federal Government did not create the States; the States created the Federal Government.”103 What they gave, they can correct or even take back by a simple legislative action.
* Captain Nathan Hale, on the occasion of the unfortunate conclusion of his first spying mission for the Continental Congress. “Nathan Hale,” www.nycgovparks.org/parks/cityhallpark/monuments/654.
* He entrusted her to get a letter to his accomplices. Casting aside discretion, she attempted to enlist the aid of a patriot client to contact prominent British officials. Eventually, the client decided to contact the local Continentals and turn her over to Washington. John Bakeless, Turncoats, Traitors, and Heroes (Cambridge, MA: De Capo Press, 1959), 11–15.
* It is interesting as well in terms of power precedents that Washington, the federal president, pardoned those convicted of state crimes adjudicated by state courts.
* John Stuart Mill, On Liberty (Boston: Ticknor and Fields, 1863), 35. Mill went on to describe the evils of suppressing that one opinion:
Were an opinion a personal possession of no value except to the owner; if to be obstructed in the enjoyment of it were simply a private injury, it would make some difference whether the injury was inflicted only on a few persons or on many. But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.
It is necessary to consider separately these two hypotheses, each of which has a distinct branch of the argument corresponding to it. We can never be sure that the opinion we are endeavoring to stifle is a false opinion; and if we were sure, stifling it would be an evil still.
Ibid., 35–36; see Geoffrey R. Stone, Perilous Times: Free Speech in Wartime (New York: W. W. Norton, 2004), 238, discussing the language in the 1940 case Cantwell v. Connecticut, which reflects a much more tolerant attitude.
* States have been regulating and legalizing marijuana in defiance of FDA and congressional edicts as well as passing resolutions nullifying or declaring noncompliance with the REAL ID Act. Thomas E. Woods, Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery Publishing, 2010), 7–9.
** “Beyond the powers.”