- Whensoever
the general government assumes undelegated powers, its acts are
unauthoritative, void, and of no force." -Thomas
Jefferson
Today in history, on Nov. 10. 1798, the Kentucky
legislature took a bold stand against federal overreach with the
passage of resolutions penned by Thomas Jefferson.
It’s
one thing to claim the Constitution limits the federal government to
its specific list of powers. It’s another thing to hold the federal
government to that list. So, what do we do when the federal
government oversteps its constitutional limits? Opponents
of the clearly unconstitutional Alien and Sedition Acts had to
grapple with this question way back in 1798.
During
the summer of that year, Congress passed, and President John Adams
signed into law, four acts together known as the Alien and
Sedition Acts. With winds of war blowing across the Atlantic, the
Federalist Party majority wrote the laws to prevent “seditious”
acts from weakening the U.S. government. Federalists utilized fear of
the French to stir up support for these draconian laws, expanding
federal power, concentrating authority in the executive branch and
severely restricting freedom of speech.
Two
of the Alien Acts gave the president the power to declare foreign
U.S. residents an enemy, lock them up and deport them. These acts
vested judicial authority in the executive branch and obliterated due
process. The Sedition Act essentially outlawed criticizing the
federal government – a clear violation of the First Amendment.
Recognizing
the grave danger these acts posed to the basic constitutional
structure, Thomas Jefferson and James Madison drafted resolutions
that were passed by the Kentucky and Virginia legislatures on Nov. 10
and Dec. 21, 1798, respectively. The “Principles of ’98”
formalized the principles of nullification as the rightful remedy
when the federal government oversteps its authority.
The Alien
and Sedition Acts outraged many Kentuckians. Several counties in
the Commonwealth adopted resolutions condemning the acts, including
Fayette, Clark, Bourbon, Madison and Woodford.
A
Madison County Kentucky militia regiment issued an ominous resolution
of its own, stating, “The Alien and Sedition Bills are an
infringement of the Constitution and of natural rights, and that we
cannot approve or submit to them.” Several
thousand people gathered at an outdoor meeting protesting the acts in
Lexington on August 13. The
push to nullify the Alien and Sedition Acts was not simply
the act of opportunistic politicians. It rose out of the passionate
demands of the citizenry in Kentucky, as well as Virginia.
Jefferson
penned the original draft of the Kentucky Resolutions
within a month of Congress passing the Sedition Act.
“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.”
After
outlining each constitutional violation and overreach of federal
power, Jefferson called for action – nullify now!
“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.”
[Emphasis added]
Jefferson
sent former Virginia ratifying convention delegate Wilson Cary
Nicholas a draft of the resolution, likely hoping the state
legislator could get them introduced in Virginia. In October 1798,
Wilson indicated that state representative John Breckinridge was
willing to introduce the resolutions in Kentucky. Breckinridge
suffered from tuberculosis and made a recuperative trip to Sweet
Springs, Va. late in August of that year. Nicholas likely gave the
Kentucky lawmaker a copy of Jefferson’s draft during that trip.
On
Nov. 7, 1798, Gov. James Garrard addressed the Kentucky state
legislature, noting the vehement opposition to the Alien and
Sedition Acts. He said Kentucky was, “if not in a state of
insurrection, yet utterly disaffected to the federal government.”
And noted that 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,” urging
the legislature to reaffirm its support of the U.S. Constitution
while “entering your protest against all unconstitutional laws and
impolitic proceedings.”
That
same day, Breckinridge announced to the House he intended to submit
resolutions addressing Garrard’s message. The following day, the
Fayette County lawmaker followed through, introducing an amended
version of Jefferson’s draft.
Most
notably, Breckinridge omitted the word nullification from the final
version considered by the Kentucky legislature, seeking to moderate
the tone of the resolution. Removal of the nullification reference
apparently didn’t bother Jefferson, and in fact, did little to
change the fundamental thrust of the resolution. By declaring
the Alien and Sedition Acts unconstitutional, null and
void, the Kentucky legislature voted on a nullification resolution,
even with the actual word omitted.
The
resolution passed the House on Nov. 10 with only three dissenting
votes. The Senate unanimously concurred three days later, and Gov.
Garrard signed the resolution on Nov. 16.
The
resolutions didn’t end the Alien and Sedition Acts, but they laid a
philosophical foundation to resist them through further state action.
The
following day, Jefferson sent a draft of his resolution to James
Madison, writing:
“I
inclose you a copy of the draught of the Kentuckey resolves. I think
we should distinctly affirm all the important principles they
contain, so as to hold to that ground in future, and leave the matter
in such a train as that we may not be committed absolutely to push
the matter to extremities, & yet
may be free to push as far as events will render prudent.”
[Emphasis added]
Kentucky
followed up with a second resolution affirming its position in 1799,
notably including the word “nullification,” omitted in the final
version of the Kentucky Resolutions of 1798 passed by the
state legislature.
“The
several states who formed that instrument (the Constitution), being
sovereign and independent, have the unquestionable right to judge of
its infraction; and, That a nullification, by those sovereignties, of
all unauthorized acts done under color of that instrument, is the
rightful remedy.”
Jefferson’s
principles have endured for over 220 years despite relentless attacks
and demagoguery. Americans have appealed to the ideas brilliantly
articulated in the Kentucky Resolutions to protect free
speech, to promote economic justice, to stop military conscription
and to protect the rights of blacks during the fugitive slave era.
Jefferson’s
words leave no doubt – nullification was the rightful remedy, and
it remains so today.
*
Via: Tenth Amendment Center