Even though the founding fathers clearly understood the concept of declaring a federal law “null and void” it was Thomas Jefferson and James Madison who first formalized the principles of nullification in the Kentucky and Virginia Resolutions of 1798 in response to the Alien and Sedition Acts.
President Adams and his allies in Congress used the threat of war with France to pass the Alien and Sedition Acts. They were actually four separate laws written to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear to stir up support for these draconian laws, expanding federal power, concentrating authority in the Executive Branch and severely restricting freedom of speech. The first act lengthened the amount of time an alien had to live in the U.S. before he was eligible for naturalization. The second two acts gave the president sweeping power over aliens; allowing him to declare them “enemies” and either detain or deport them on his authority. These two acts vested judicial power in the Executive Branch and denied due process. The fourth act was the most nefarious. The Sedition Act declared any “treasonable activity” a high misdemeanor punishable by fine and imprisonment. Treasonable activity included “any false, scandalous and malicious writing” against the government or its officials. In other words, you couldn’t criticize the government.
Based on the Sedition Act, federal officials arrested some 25 men, most editors of Republican newspapers. There were at least 17 verifiable indictments, 14 under the Sedition Act and three under common law. The Act also effectively shut down many dissenting party presses chilling free speech. The Federalists had set themselves up to remain permanently in power or so they thought. How does a candidate campaign to win an election if he can’t criticize the incumbent?
This was no “paper tiger” law. The Federalists immediately wielded their new power with great effect.
Benjamin Franklin’s grandson was among those prosecuted. Federalists sent “committees of surveillance” to spy on Benjamin Franklin Bache, editor of the Philadelphia Democrat-Republican Aurora. Bache called the Alien and Sedition Acts an “unconstitutional exercise of power.” He was ultimately charged with sedition for his French sympathies and libeling President John Adams. Bache died of yellow fever before he was brought to trial.
The then vice President Thomas Jefferson penned the original draft of the Kentucky Resolutions within a month of Congress passing the Sedition Act. The Tenth Amendment served as the lynchpin in his reasoning.
“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.”
He repeated the Tenth Amendment verbatim three times in the resolutions.
After outlining each constitutional violation and overreach of federal power, Jefferson called for action.
“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.”
The Kentucky Gov. James Garrard (Garrad) signed a slightly revised version of the resolution in November of 1798. The version passed by the legislature omitted the word “nullification.” But make no mistake, it was a nullification document, emphatically declaring the Alien and Sedition Acts void, unauthoritative and of no force. In 1799, the Kentucky legislature passed a follow up resolution including the term “nullification”.
Within weeks of passage in Kentucky, the Virginia legislature passed resolutions authored by James Madison.
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
Inevitably, somebody will counter that it is the job of the Supreme Court to determine what is or isn’t constitution – not the states. This statement fails on two fronts, the Constitution asserts no such power is vested in the Supreme Court and it fails the test of logic.
Jefferson addressed this idea in the Kentucky Resolutions of 1798.
“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.”
You cannot expect the Supreme Court (part of the federal government) with justices appointed by the president (part of the federal government) and approved by the Senate (part of the federal government) to overrule Congress (part of the federal government) and actually limit the power of the federal government?
That is neither likely nor logical.
Only the states who are parties to the compact known as the Constitution have the power and the authority to determine when the federal government has exceeded its authority and that power is Nullification.
