One of the most common complaints of constitutionalists against the conduct of our federal government is that the judiciary at all levels routinely oversteps its boundaries, intruding into those areas that are beyond its constitutional reach.

Though this is largely accepted by most Americans because of its long practice, this does not mean that what we see in Washington with respect to the judicial branch should be be tolerated or allowed to continue. As with unconstitutional actions by the other branches of government, our founders provided a way for violations of our founding compact to be rectified by the states when the federal government refuses to use the system of checks and balances that was built into our constitutional system.

In the Kentucky Resolution of 1798, Thomas Jefferson argues that a state government should interpose and nullify acts of the federal Congress it believes to be unconstitutional. I would like to address the arguments of the Resolution against one of these acts, the Alien Friends Act, which had been passed by a Federalist Congress and signed into law by President John Adams, also a Federalist. In passing this Act, the Congress had unconstitutionally granted to the President powers that belonged to the judicial branch. This threatened a breakdown of the separation of powers that was so necessary to the continued integrity of the republican character of our constitutional system.

The constitutional theory underlying Jefferson’s thought in the Kentucky Resolutions is summarized in the first resolution,

Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto…That to this compact each State acceded as a State, and is an integral party, 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 parties 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.”

Essentially, Jefferson was arguing what is known as the “Compact Theory” of the Constitution, a theory which says that the federal government exists as a creation of the states, and thus the states themselves are the final arbiters in deciding when the federal government has gone beyond its delegated powers. It was upon this basis that Jefferson justified the attempt to nullify the various acts addressed in the Resolution.

In the sixth Resolution, he addressed the Alien Friends Act, which allowed the president, at his own discretion, to expel from the United States any foreign citizen he chose, without formal accusation, a jury trial, or any other recourse. Jefferson observed that,

“…transferring the power of judging any person who is under the protection of the laws, from the Courts to the President of the United States…is against the article of the Constitution which provides…”

He then proceeds to quote the 6th amendment. Fundamentally, the issue at stake was a structural one – the Constitution provided judicial recourse to those (including, as was commonly understood from the very start, resident aliens in good standing) who stood accused of some crime. The Act transferred the power of judgment away from the courts and the juries and to the president himself, solely and completely. Hence, it was a violation both of republican principles and the specific constitutional provision for federal power to be separated between the three branches of government. Jefferson said that because this was a violation of the Constitution, the act was “utterly void and of no force.”

This basic issue applies to our situation today, even if in the reverse direction. In the many, many judicial overreaches that we have seen take place for decades, we have seen a breakdown in the separation of powers as the judicial branch, in its turn, has usurped the roles of the other branches. The courts often go beyond their legitimate role of reviewing the constitutionality of laws, and delves into the business of legislatures, reinterpreting laws in ways that the legislature never intended, and imposing decisions, presumed to have the force of law, upon the states severally and on the nation as a whole. Consequentially, the same argument for unconstitutionality applies – when a court, even the Supreme Court, exceeds its specifically delegated roles, it breaks down the constitutional balance of powers and degrades the compact under which we operate.

As such, just like the Alien Friends Act was “utterly void and of no force” by Jefferson’s arguments, so also would be unconstitutional acts of the federal courts.

But the issue that arises is, “Who decides if the court is acting unconstitutionally?” Do the states, per the Compact Theory, or does the federal government (i.e. the courts themselves)? The error of those who rejected the Compact Theory, as applied here, is that if the federal government exercises its authority directly from the people, rather than by the people through their respective states, then there is essentially no means of checking the judicial branch if and when it oversteps its boundaries, for there is no mechanism provided short of complete dissolution of the government for “the people” to rein in the judiciary. Expecting the courts to rule against themselves, selflessly restraining their own power and reach, seems to be a fool’s expectation, and runs counter to the entire line of thought that led our founders to seek to restrain government power. When a situation arises where the other two branches of federal power will not act to restrain judicial overreach, as we routinely see today, then the courts get to rule and reign unimpeded by any earthly power.

This is surely not what the Founders intended.

As such, even though the Compact Theory was rejected early on in American history by many prominent American statesmen, we find that logic and reason compel us back toward a renewed interest and application of this theory by the several states. It is from the understanding that the states are the arbiters when there are clear violations of the Constitution by the federal government that we can derive a just and reasonable view of constitutional liberty that safeguards the rights of the states and the people.

We cannot hope for the federal government to restrain itself – the uniform testimony of history since the Civil War shows that this is an unreasonable expectation.   Instead, we ought to get back once again to acknowledging the principle, “…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 of infractions as of the mode and measure of redress.”

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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