by Michael Maharrey
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.
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