Chapter 4
AMERICAN GOVERNMENT AND THE “PRINCIPLES OF ’98”
The 1790s were a contentious decade. Washington’s Treasury secretary, Alexander Hamilton, came to his post armed with an economic program that could be enacted only if the Constitution were interpreted broadly rather than in the more restrictive sense that secretary of state Thomas Jefferson and his allies preferred. Hamilton was concerned that the states would render the federal government feeble and impotent.
Guess what?
★ Providing for the “general welfare” doesn’t mean that the federal government gets to spend money on whatever it wants.
★ An early draft of the Constitution opened with the words “We, the States.”
★ Granting individual states the power to nullify unconstitutional federal laws was a debate the Founders took seriously.
Providing for the “general welfare”: The roots of big government
The first major constitutional controversy in American history involved the issue of a national bank, a key part of the Treasury secretary’s program. Hamilton believed that a national bank was critical to the new nation’s economic well-being and could be constitutionally justified on the basis of the “necessary and proper” clause and other grounds. Jefferson believed both that a bank was not necessary and that the states had never provided the federal government the constitutional power to establish one.
Jefferson joined James Madison, then a member of Congress, in his constitutional objection to the bank. Madison later gave in on the bank. But on the eve of his departure as president in 1817, Madison vetoed the “bonus bill,” which authorized federal expenditures for constructing roads and canals. In his veto message, Madison wrote that the use of federal funds for road and canal building was a good idea, but he insisted that the Constitution would have to be amended first to make it possible. As matters stood, the federal government had no constitutional authority to do such things.
Madison dismissed the claim that the proposed legislation could be justified by the Constitution’s clause authorizing the federal government “to provide for common defense and general welfare.” To the extent that politicians today even bother to justify federal legislation on constitutional grounds, they appeal to this clause. But to argue this way, Madison said, would render “the special and careful enumeration of powers which follow the clause nugatory and improper. Such a view of the Constitution would have the effect of giving to Congress a general power of legislation instead of the defined and limited one hitherto understood to belong to them.” If the “general welfare” clause of the Constitution authorized the Congress to do anything that tended toward the general well-being of the country, then why had the Framers bothered to specifically list the powers of Congress in Article I, Section 8? This very fact logically precluded the possibility that the general welfare clause constituted a broad, openended grant of power.
Madison continued to promote this view in the years that followed. In 1792 he argued:
If Congress can employ money indefinitely to the general welfare, and are the sole and supreme judges of the general welfare, they may take the care of religion into their own hands; they may appoint teachers in every state, county, and parish, and pay them out of their public treasury; they may take into their own hands the education of children establishing in like manner schools throughout the Union; they may assume the provision for the poor; they may undertake the regulation of all roads other than post-roads; in short, everything, from the highest object of state legislation down to the most minute object of police, would be thrown under the power of Congress.
What Madison warned about is precisely what has come to pass today. So far has Washington drifted from constitutional government that the question of the constitutionality of legislation, which was so central to eighteenth- and nineteenth-century congressional debates, is no longer raised.
Checks and balances: The fox guarding the chicken coop
The Framers of the Constitution were well aware of the tendency for power to concentrate and expand. Jefferson spoke of the calamity that would result if all power were to be concentrated in the federal government. Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, offer little guarantee of
PC Today
Many historians often portray states’ rights as merely code words for slavery. But as historian Eugene Genovese reminds us, of the five Virginians who made the greatest intellectual contributions to the strict constructionist interpretation of the Constitution—George Mason, Thomas Jefferson, John Randolph of Roanoke, St. George Tucker, and John Taylor of Caroline—only Taylor could be described as pro-slavery, and “even he regarded it as an inherited misfortune to be tolerated, rather than celebrated.” limited government, since these three branches could unite against the states and the people. That is precisely what Jefferson warned William Branch Giles about in 1825: “It is but too evident, that the three ruling branches of [the national government] are in combination to strip their colleagues, the State authorities, of all powers reserved by them, and to exercise themselves all functions foreign and domestic.”
Since the states were the constituent parts of the Union and had enjoyed an independent existence long before the Constitution was established, early American statesmen wanted the states to have some protection against the federal government. The federal government could not be permitted to have the exclusive authority to interpret the Constitution. It would consistently hand down rulings in favor of itself, and over time, consolidate power.
The Republicans versus the Federalists
Round One: The Alien and Sedition Acts of 1798
Amid the naval skirmishes and diplomatic tension in America’s quasi-war with France, the Federalists managed to enact legislation that would become notorious: the Alien and Sedition Acts. The Federalists, a political party to which Hamilton belonged, generally favored a strong central government and a broad construction of the Constitution—the very opposite of Jefferson’s Republicans, who were anxious to defend the rights of the states and insisted upon a strict construction of the Constitution. The alien legislation, which authorized the president to deport resident aliens who had “treasonable” leanings, was a source of concern to Jefferson and other Republicans; Jefferson believed the legislation was aimed at Albert Gallatin, the important Pennsylvania Republican who had been born in Geneva. (He later became Jefferson’s own Treasury secretary.)
But it was the prohibition of seditious libel that they found most objectionable. For Jefferson, the problem wasn’t simply that this prohibition would be enforced in a partisan way—though of course it was, with numerous Republican newspapers and spokesmen targeted for harassment, fines, and even jail time. (Correspondence between Jefferson and Madison at the time includes concerns that their mail was being tampered with.) And it wasn’t that seditious libel could be arbitrarily or loosely defined—although, again, in practice it was: One poor soul, who expressed the fond wish that the presidential saluting cannon would “hit [President John] Adams in the ass,” was fined $100.
The primary issue was the acts’ dubious constitutionality. Jefferson based part of his objection on their violation of the First Amendment, though the point was arguable. He added that the acts violated the Tenth Amendment, to him the foundation on which the entire Constitution was based. Nowhere had the states delegated any authority to the federal government to pass legislation on the freedom of speech or press. In enacting such legislation, then, the federal government had encroached on a state prerogative. For Jefferson, who spoke of binding men by the chains of the Constitution, immediate action was necessary lest such federal usurpations begin to multiply.
Round Two: The Kentucky Resolutions of 1798
Was there a constitutional remedy—a solution short of secession or violent revolution—to oppose such laws as the Alien and Sedition Acts? Figures like Massachusetts senator Daniel Webster and Supreme Court justice Joseph Story (and later Abraham Lincoln) didn’t think so. Since they subscribed to a nationalist theory of the Union—whose core belief was that the Constitution was not a compact among sovereign states but had been adopted by the American people in the aggregate—this appeared to them as an unlawful revolt by an arbitrary portion of the people rather than as an exercise of authority by a sovereign body.
Webster lent weight to his argument in his famous 1833 speech “The Constitution Not a Compact Between Sovereign States.” He pointed to the words of the Constitution: Did it not say We, the People, and not We, the States, do ordain and establish this Constitution? But Webster’s exegesis of the Constitution’s preamble is faulty. In fact, the Constitution as originally drafted did say “We, the States.” This wording was removed for practical reasons by the committee on style. Since no one could know in advance which states would ratify the Constitution and which would not, it made little sense to list all the states by name before each had made its decision. The substitute phrase “We, the People of the united States” referred not to a single American people taken in the aggregate, but to the people of Massachusetts, the people of Virginia, the people of Georgia—in other words, the people of the several states.
What the Founders Said
Alexander Hamilton, while an advocate of a strong central government, nevertheless envisioned a role for the states in restraining the federal government, arguing in Federalist #28 that “the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.”
The fact that this textual change was unanimously accepted proves it could not have been intended to alter the nature of the Union. Had the new text really meant what Webster later claimed it did, vocal and lengthy debate would have ensued. It certainly would not have been unanimously approved.
To Jefferson, the only way a state could remain in the Union and retain its liberties in the face of an unconstitutional act by the federal government was for the state to declare that a federal action was null and void and would not be enforced within the state. But this action should be taken by the state only in dire circumstances.
There is, obviously, no provision in the Constitution that explicitly authorizes nullification. That was not Jefferson’s point. Jefferson, and later John C. Calhoun, suggested that no one side in a compact could have the exclusive right of interpreting its terms. This was especially true in the case of the federal compact, since it was Calhoun’s contention that the federal government was not a party to the compact, since it was itself established by the joint action of the states.
Jefferson (who was vice president at the time) anonymously penned what became known as the Kentucky Resolutions of 1798. They spelled out the objectionable aspects of the Alien and Sedition Acts as well as the states’ rightful response: nullification. (No state actually nullified these acts; the crisis with France came to an end, and the acts were slated to expire in early 1801.) James Madison penned similar resolutions that were approved by the Virginia legislature.
The following year the Kentucky legislature passed another resolution, this time including the word “nullification”:
Resolved... That, if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained.... That the several States who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction; and that a Nullification by those sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy. . . .
Madison penned his own Virginia Resolutions, which likewise warned of federal encroachments and reminded the population that the state governments had the responsibility to protect them from unconstitutional measures at the federal level.
South Carolina nullifies tariffs
Perhaps the most important nullification theorist was John C. Calhoun, one of the most brilliant and creative political thinkers in American history. The Liberty Press edition of Calhoun’s writings, Union and Liberty, is indispensable for anyone interested in this subject—especially his Fort Hill address, a concise and elegant case for nullification. Calhoun proposed that an aggrieved state would hold a special nullification convention, much like the ratifying conventions held by the states to ratify the Constitution, and there decide whether to nullify the law in question. This is how it was practiced in the great standoff between South Carolina and Andrew Jackson. When South Carolina nullified a protective tariff in 1832–33 (its argument being that the Constitution authorized the tariff power for the purpose of revenue only, not to encourage manufactures or to profit one section of the country at the expense of another—a violation of the general welfare clause) it held just such a nullification convention.
What the Founders Said
“Resolved . . . 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 parties having no common Judge, each party has an equal right to judge of itself, as well of infractions as of the mode and measure of redress. . . . ”
Thomas Jefferson, Kentucky Resolutions of 1798
In Calhoun’s conception, when a state officially nullified a federal law on the grounds of its dubious constitutionality, the law must be regarded as suspended. Thus could the “concurrent majority” of a state be protected by the unconstitutional actions of a numerical majority of the entire country. But there were limits to what the concurrent majority could do. Should three-fourths of the states, by means of the amendment process, choose to grant the federal government the disputed power, then the nullifying state would have to decide whether it could live with the decision of its fellow states or whether it would prefer to secede from the Union.
That Madison indicated in 1830 that he had never meant to propose nullification or secession either in his work on the Constitution or in his Virginia Resolutions of 1798 is frequently taken as the last word on the subject. But Madison’s frequent change of position has been documented by countless scholars. One modern study on the subject is called “How Many Madisons Will We Find?” “The truth seems to be, that Mr. Madison was more solicitous to preserve the integrity of the Union, than the coherency of his own thoughts,” writes Albert Taylor Bledsoe.
It is true that at the time, Virginia and Kentucky found little support among the other states for their resolutions (though since some of those states were strongly Federalist, they supported the anti-sedition legislation), and that South Carolina was practically alone in 1832 and 1833 (not quite “all alone,” as historians typically claim: Virginia sent an official mediator to meet with South Carolina legislators to attempt to work out a solution, and prominent Virginians said they would stand by South Carolina against the federal government if it came to that). But actions speak louder than words, and if the Northern states sharply criticized South Carolina’s nullification of the Tariffs of 1828 and 1832, on the other hand they used the unmistakable language of the Virginia and Kentucky Resolutions of 1798 when nullifying the fugitive slave laws. This 1859 statement of the Wisconsin legislature is striking:
Resolved, That the government formed by the Constitution of the United States was not the exclusive or final judge of the extent of the powers delegated to itself; but that, as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
Resolved, that the principle and construction contended for by the party which now rules in the councils of the nation, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism, since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers; that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infractions; and that a positive defiance of those sovereignties, of all unauthorized acts done or attempted to be done under color of that instrument, is the rightful remedy.
Does that sound familiar? These ideas, laid out by Jefferson and Madison, elaborated upon by others, and echoed above by the legislature of Wisconsin, became known as the “principles of ’98,” recalling the Virginia and Kentucky Resolutions of that year.
Why nullification isn’t as crazy as it sounds
Responding to the claim that the federal judiciary and not the states had the final word on the constitutionality of federal measures, James Madison’s Report of 1800 argued that “dangerous powers, not delegated, may not only be usurped and executed by the other departments, but... the judicial department may also exercise or sanction dangerous powers, beyond the grant of the Constitution.... However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts” (emphasis added). Thus the Supreme Court’s decisions could not be considered absolutely final in constitutional questions touching upon the powers of the states.
The most common argument among the early statesmen against nullification is that it would produce chaos: a bewildering number of states nullifying a bewildering array of federal laws. (Given the character of the vast majority of federal legislation, a good answer to this objection is: Who cares?) Abel Upshur, a Virginian legal thinker who would serve brief terms as secretary of the Navy and secretary of state in the early 1840s, undertook to put the fears of opponents of nullification to rest:
If the States may abuse their reserved rights in the manner contemplated by the President, the Federal government, on the other hand, may abuse its delegated rights. There is danger from both sides, and as we are compelled to confide in the one or the other, we have only to inquire, which is most worthy of our confidence.
What the Founders Said
“[It is] working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief over the field of jurisdiction, until all shall be usurped from the states, and the government of all be consolidated into one.”
Thomas Jefferson
on the federal judiciary
It is much more probable that the Federal government will abuse its power than that the States will abuse theirs. And if we suppose a case of actual abuse on either hand, it will not be difficult to decide which is the greater evil.
If a state should abuse its right of interposition by arresting the operation of a constitutional law, the worst that could come of it would be to suspend the operation of the law, for a time, as to that State, while it would have all its effects within the other States. This would certainly be unjust, but in most cases, would be attended with very little practical evil.
Besides, according to the doctrine for which I am contending, this evil would be temporary only; it must cease in some way or other, as soon as the other States act upon the subject. I acknowledge, however, that it is at best an evil, but it is an evil inseparable from our system, and one which cannot be avoided except by submitting to a greater evil.
It is hard to find fault with Upshur’s reasoning. Opponents of the idea always seem to fall back on some case that allegedly renders nullification impracticable, even dangerous. If the doctrine of nullification did not degenerate into confusion in peacetime, what should happen if a state or group of states should invoke it during war, potentially threatening the nation’s security? Most proponents of nullification have correctly noted that it is precisely in such situations that we would expect the interests of the states to be most consonant and their allegiance to the federal government most secure. More to the point, one might well wonder what a group of states is doing in the same union in the first place if a portion of them actually desired to sabotage a just war.
The main point that nullification addresses is that a government allowed to determine the scope of its own powers cannot remain limited for long. One of the casualties of the abysmal state of American education today is that so few Americans know their own constitutional history that hardly anyone realizes the constitutional challenge that states could pose to the routine dictation they endure at the hands of the federal government. Learning our history won’t change the situation, but it’d be a start.
