Today, it is commonly accepted that the U.S. Supreme Court has the sole and final say as to whether or not a federal law is constitutional (after it winds through the lower federal courts).  Recently, for example, the Court upheld the Affordable Care Act as constitutional under the auspices that the individual mandate is a tax.  This commonly accepted notion is wrong.

But what did the Founders, specifically Thomas Jefferson and James Madison, think about the role of federal courts?  Did they think that the Supreme Court would be the only institution to have a say on the constitutionality of a federal law?  No, Jefferson and Madison did not believe the Supreme Court solely possessed this authority.  Think about it.  Why would the Founders allow a branch of the federal government to determine the extent of the federal government’s own powers?  It would be like a football player determining whether or not he made a touchdown – no need for referees.

To the contrary, these Founders (and others) wanted to significantly limit the powers of the federal government, leaving most powers with the States or the People per the Tenth Amendment.  Therefore, they envisioned each State having not just the right, but the duty to determine whether or not a federal law is constitutional within the boundaries of that State.  Where’s the proof, you ask?  Right in front of our eyes if we only read a little bit of history – like the Alien and Sedition Acts prompting the Virginia and Kentucky Resolutions (1798).

The Alien and Sedition Acts were a group of federal laws passed by the U.S. Congress making it a crime to “write, print, utter or publish” anything critical of the government.  John Adams, President at the time, claimed these laws were necessary to avoid war – specifically support for the French during the French Revolution.

Many Americans believed these laws were unconstitutional because they violated the First Amendment’s protection of freedom of speech and of the press.  To reflect their citizens’ opinions, two States passed Resolutions stating that these federal laws were indeed unconstitutional.  James Madison and Thomas Jefferson wrote the Virginia and Kentucky Resolutions of 1798, respectively, outlining the basis for each State’s rejection of these federal laws.

In the Virginia Resolution of 1798, James Madison wrote,

… the General Assembly doth solemenly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.  (emphasis added)

That this Assembly doth … 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.  (emphasis added)

In even more vigorous language throughout the Kentucky Resolution of 1798, Thomas Jefferson wrote,

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; (emphasis added)

In other words, Kentucky declared these federal laws were unconstitutional, and as a result, asserted its right not to follow them.

Wait a minute … State Assemblies declaring federal laws unconstitutional?  Where are the federal courts?  Where’s the Supreme Court?  Not mentioned in either Resolution.  Why?  Because Jefferson and Madison believed each State had the right – the duty – under the U.S. Constitution to do this.

As mentioned above, Jefferson and Madison considered the federal government’s power to be very limited.  Our republic was set up so that each State was considered independent and sovereign – like a country unto itself.  But States needed to work together on limited issues, like protection from foreign invasion; common money and some other defined items (as listed primarily in Article I, Section 8 of the U.S. Constitution).  So, the States formed the federal government by signing a compact – the U.S. Constitution – to handle these specific items – nothing more.  And when the federal government oversteps its bounds – unconstitutional.  This notion is clear throughout both Resolutions.

As Jefferson stated in the Kentucky Resolution:

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; (emphasis added)

[T]hat 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. (emphasis added)

In fact, James Madison said that a federal government enlarging its powers beyond the limited ones specifically stated in the Constitution would result in a monarchy:

That the General Assembly doth also express its deep regret, that a spirit has … been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them … so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy. (emphasis added)

How did the U.S. Supreme Court begin this notion of determining a federal law’s constitutionality?  It took the power of judicial review for itself in the landmark decision of Marbury v. Madison (1803).

States need to reassert their rightful authority of determining the constitutionality of federal laws within the boundaries of their own State.  They also need to take action to push back when they determine that federal power has gone beyond the limits of the constitution.  On a positive note, some have recently reignited this process with respect to issues across the political spectrum.

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