THOMAS JEFFERSON wondered how the country would respond if its government passed a law that was clearly unconstitutional.
As Secretary of State under George Washington, he had already witnessed the wheels of government trying to enlarge provisions in the Constitution in order to give the administration unchecked powers to tax and spend. Washington established the first national bank. Jefferson knew the trend would continue.
And it did.
John Adams followed Washington and signed the Alien & Sedition Acts into law. The French Revolution had just killed off the monarch and his family, and tensions flared up between the new French republic and its old rival, England. There was an influx of French immigrants, and Americans were split in their support of the old French system or the new republic.
Although the Alien Acts (three of them) were offensive, the Sedition Act that was most glaringly so. It made it a crime, with fines and jail sentences, to “write, print, utter, or publish, OR cause or procure to be written, printed, uttered, or published, OR assist or aid in writing, printing, uttering, or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either House of the Congress of the United States, or the President of the United States….”
The Constitutional red flags went up at once. While the Alien Acts violated the Tenth Amendment and the Due Process clause of the Fifth Amendment, the Sedition Act was a blatant violation of the First Amendment and its guarantee of free speech – most importantly, political speech!
John Adams saw nothing wrong with any of the laws. Neither did his Federalist co-members of government or his Federalist judges. Thomas Jefferson, the vice president at the time, having garnered the second highest vote total in the election, wasn’t a Federalist. He was a Republican-Democrat, a party he founded. [Notice that the Sedition Act protected everyone from slander EXCEPT the VP !!]. The checks and balances failed.
Convictions under the Sedition Act quickly followed. Journalists, publishers, and even a congressman, were fined and jailed. Not a single person targeted was a Federalist.
Jefferson and James Madison began corresponding to discuss what should be done to prevent such unconstitutional laws from being enforced. Jefferson identified three possible remedies when a government tries to enforce unconstitutional laws.
(1) Seek an opinion from the Judiciary;
(2) Secession
(3) Nullification.
Jefferson advised against the first two remedies.
He said the first was unpredictable and unreliable. He believed justices were men motivated by the same passions, political motivations, thirst for power and legacy, and opinions as politicians and could not be counted on to be impartial interpreters of the Constitution. He also realized that the judiciary was only one branch of government (the least powerful at the time), and although it would render an opinion, Congress and the president were not required to abide by its ruling. Furthermore, the judges were all Federalists at the time. They were part of the problem.
Jefferson said secession was certainly a legitimate option (after all, the Declaration itself was a secessionist document), but he said it was far too extreme and every effort should be made to keep the union together in a workable fashion.
The third option, he said, was “the rightful remedy.” Nullification, he said, was the remedy inherent in the states’ ratification of the Constitution, inherent in the doctrine of federalism, a remedy grounded in law itself, and the remedy that would allow hot tempers to cool and would prevent states from threatening to leave the Union.
Madison agreed.
Nullification is the doctrine holding that any law made without proper legal authority is immediately null and void and therefore unenforceable. Laws have to be enforced by officials – federal and state. When the federal government passes a law pursuant to its powers, it is supreme and binding. When the federal government passes a law that it has no authority to make – such as the Sedition Act – the law is by definition null and void. For a government to try to enforce it would be an act of tyranny. (Tyranny is defined as a government that abuses its powers and enforces unpopular laws). Since the law is null and void, no enforcement agency should force the law on the people.
The federal government will never admit its law is unconstitutional or unenforceable, so it is up to the states and the communities (and their enforcement agencies) to prevent such law from being enforced. The states are the rightful parties to stand up for the people against a tyrannical act of government. When the federal government assumes power to legislate that it was not granted in the Constitution, it usurps (or steals it) from its rightful depository, which are either the States or the People.
Every party must jealously guard its sphere of government; it’s bundle of powers. States have their powers of government and people have their rights of self-government (ie, control over their own lives, thoughts, actions, and property). Again, if we look at the Sedition Act, the government under John Adams passed the law by attempting to steal the rights of free speech from the People.
Jefferson ultimately drafted the Kentucky Resolutions of 1798 and of 1799 for the Kentucky state legislature) and the Madison penned the Virginia Resolutions of 1798. Both states passed their respective resolutions, declaring that the Alien and Sedition Acts were unconstitutional and therefore unenforceable in their states.
The Virginia Resolutions were especially forceful because they announced that the state of Virginia would take every step possible to prevent the enforcement of the laws on its people.
In the Kentucky Resolutions of 1798, Jefferson wrote:
Resolved, 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: 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.
In the Kentucky Resolutions of 1799, he wrote:
RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, 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 colour of that instrument, is the rightful remedy……
In the Virginia Resolutions of 1798, James Madison wrote:
RESOLVED……. 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.
The federal government hates the doctrine of nullification and has used every opportunity to discredit it. Any doctrine empowering the States is offensive to the feds. It makes them harder to control. But nullification is a fundamental sovereign power reserved to each state. Since the states did not form the Union by unlimited submission to the common government they created, certain powers remain vested in them. Despite what Lincoln and Obama may claim, the states did NOT create, or attempt to create, or even envision creating a “perpetual” Union by ratifying the Constitution. Those words are merely wishful thinking by despots and revisionists.
The biggest tool the government has in its arsenal to shut down the discussion of nullification is racism.
According to conventional wisdom, nullification is a racist doctrine that was used to help the southern states maintain slavery
Racism invites passion. It questions motives, clouds judgment, obscures facts, and shuts down debate. Racism never dies, according to the government. Racism never dies, according to the irresponsible media. Perhaps it is no coincidence that our current government is fanning the flames once again in history of racism and making sure we are once again defined as a racist nation.
In this time when nullification should be the topic everyone wants to re-address, the countering argument will always be, “Look, they’re trying to go back to the days of slavery or segregation.”
And so, I wanted to write this to emphasize the REAL story of Nullification and the REAL success of nullification.
It wasn’t in light of the Alien & Sedition Acts. It wasn’t the publication of the Kentucky and Virginia Resolutions. Most of the other states were controlled by Federalist and fully supported the acts. The others opposing were simply too timid to adopt similar resolutions. In the end, the states didn’t stand up to the federal government as Jefferson and Madison had hoped.
No, the real success story of nullification was in the rejection the Fugitive Slave Laws.
Yes, the American flag, believe it or not, was the official flag of a slave nation for 77 years (1788 – 1865). Slavery was protected in the United States by the Constitution for those years. Although slave importation had been abolished by the time the Constitution was ratified and the Union was created, the institution itself was still constitutional. Not only was it constitutional, but slaves, as property, were required (by the Constitution) to be returned to their owner, and Congress passed fugitive slave acts to implement fugitive slave rendition. These were draconian laws that denied a black person accused of escaping slavery due process. They also forced every citizen to serve as a slave catcher if called up.
Abolitionists in the North found the fugitive slave acts revolting and fundamentally wrong, not to mention unconstitutional in their denial of due process. Legislatures in Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, either outright enacted personal liberty laws that nullified fugitive slave laws in practice, acting to frustrate or otherwise render useless any attempt to enforce them.
Nullification was a very successful way for escaped slaves to finally realize freedom in the North. It’s pretty hard to claim nullification is racist when it served such a public good.
The following video does an amazing job to educate people on the history of nullification and to explain its power to right wrong.
Diane was born in New Jersey and lived there most of her life. She attended Seton Hall University School of Law where Judge Andrew Napolitano was her constitutional law professor.She and her family moved to Greenville, NC in 2001.She is married and has 4 children.
- Nullification: The Power to Right Wrongs - July 22, 2015
- The Supremacy Clause and Proper Constitutional Bounds - August 27, 2013
- Why Nullification? - August 26, 2013