CONCEIVED IN LIBERTY

 

 Resolution of the Kentucky Legislature on 19 November, 1799 declared:

 

Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force; that to the contract (the Constitution) each State acceded as a State and is an integral party; that government created by this Contract 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 measures 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 for itself as well as of in fraction as of the mode and measure of redress.

 

     There are few documents of the early period of this Republic which possess a greater interest than the series of resolutions adopted in Virginia and Kentucky in 1798-99. They were the first official documents expressing the sentiment of the people regarding federal versus State jurisdiction. The resolutions of 1798, and the subsequent confirmation  of their doctrines, survived  many years and left no shadow of doubt upon them. The events leading to their penning hold as much interest.  

    Within the national government itself, the principal struggle for power has always been between the executive and legislative departments. The judiciary was hardly more than a spectator of this conflict. For the first fourteen years of its existence, the Supreme Court failed to play the commanding role Hamilton had assigned it in The Federalist. There were no epoch making decisions handed down from that tribunal; not a few Justices resigned in order to accept appointments in the state judiciaries; and on several occasions the office of Chief Justice went begging. In 1800, when John Jay declined reappointment as Chief Justice, he gave as his reason his conviction that "under a system so defective it would not obtain the energy, weight and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and respect which, as the last resort, of the justice of the nation, it should possess."

     In 1798, there was the feeling among the American people that their new government may  somehow involve them in the war between Great Britain and France. Having just fought a long, bloody war for their own independence which left the country in debt, the people were not anxious to get involved in someone else's fight. Newspaper  articles attesting to those views with criticism of the Federal government were rampant. In retaliation, the new government passed Alien and Sedition laws restricting comments on the action of government. These laws greatly restricted the First Amendment rights secured to the people by the federal Constitution. There was concern that this action was usurpation by the federal government of delegated constitutional jurisdiction. In every State in the Union the government and its officials were protected by statute or common law against the practices which the Sedition Acts laid  under duress. No Federalist was willing to admit that in this regard the states possessed larger powers than did the federal government.

By the end of 1798 some Virginians were speaking of the federal government "as an enemy infinitely more formidable and infinitely more to be guarded against than the French. Among these Virginians were Thomas Jefferson and James Madison. As early as 1797, Jefferson referred to the federal government as a "foreign jurisdiction." As Vice President of the United States, he urged the Virginia legislature to enact a law making liable to punishment citizens of Virginia who attempted to carry cases to the federal courts when those courts did not have clear and uncontested jurisdiction. In Jefferson's opinion, the Alien and Sedition Acts made it imperative that the powers assumed by the federal government must be curbed if American liberty were to survive. Jefferson feared the theory of federal power upon which these acts were based quite as much as he did the operation of the acts themselves. For, if it were conceded that the federal courts were authorized by the Constitution to take cognizance of all cases arising under the common law, there could be no doubt that the "beautiful equilibrium" established by the Constitution between the States and the federal government would be destroyed and that the federal government would usurp "all the powers of the State governments and reduce the country to a single consolidated government." The common law, said Jefferson, could become law in the United States only by positive adoption only insofar as American legislatures were authorized to adopt it.

Jefferson called in James Madison for consultation. Madison characterized federal inherent or implied powers as "the creatures of ambition..........Powers  extracted from such sources will be indefinitely multiplied by the aid of armies and patronage which, with the impossibility of controlling them by any demarcation, would presently terminate reasoning, and ultimately swallow up the State sovereignties."

The fruit of Madison's and Jefferson's collaboration was the Virginia and Kentucky Resolutions. Jefferson was the author of the Kentucky Resolutions and Madison drew up the statement adopted by the Virginia legislature, but neither man signed them.

These acts marked an important stage in the progress of the theory that ultimately led to the nullification by a State of a federal law.  According to Jefferson's and Madison's interpretation of the Constitution, it created nothing more than a compact between sovereign States which confided certain narrowly defined powers to the general government while reserving all residual powers to the States. Being the creators of the Constitution, the States were alone capable of judging when infractions of this instrument of government occurred, and they alone were able to devise measures of redress. In effect, the States were called upon to mediate between the people and the federal government, but it was assumed that usurpation would always come from the federal government rather than from the States. Carried to its logical conclusion, the doctrine propounded by the Virginia and Kentucky Resolutions meant that the compact between the States was a moral rather than a legal obligation and that the preservation of the Union was left to the discretion of the parties concerned. The Kentucky Resolutions were passed in the legislature with a single dissenting voice.

 

Kentucky Resolutions........1789-1790

 

"First. Resolved, That every officer of the federal government, whether legislative, executive, or judicial, is the servant of the people and is amenable and accountable to them. That being so, it becomes the people to watch over their conduct with vigilance, and to censure and remove them as they may judge expedient. That the more elevated the office and the more important the duties connected with it may be, the more important is a scrutiny  and examination into the conduct of the officer. And that to repose a blind and implicit reliance in the conduct of any such officer or servant is doing injustice to ourselves.

"Second.  Resolved,  That war with France is impolitic and must be ruinous to America in her present situation.

"Third. Resolved, That we will at the hazard of our lives and fortunes, support the Union, the independence, the Constitution, and the liberty of the united States.