Can states assert their original rights and the law of self-preservation?

By Ken Bachand

All serious students of American history should be acquainted with the Alien and Sedition Acts passed during the John Adams administration and the Kentucky and Vuirginia Resolutions that were passed in response. But most do not know that James Madison, author of the Virginia Resolutions, later redefined them in favor of the supremacy of the central government. Take special note of the underlined parts of the last paragraph of the excerpt below and consider how well Madison’s solutions for solving such issues have worked in just the last twenty years.
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In his Kentucky Resolutions, drafted in secret, Jefferson, then the vice president, explained that the federal union was a compact among states which had delegated only "certain definite powers" to the national government, reserving all other powers to themselves. Thus, Jefferson argued that if any acts of the federal government went beyond the powers that had been delegated to it, every state had the right "to nullify of their own authority all assumptions of power." Since Congress had trampled upon the Constitution, Jefferson considered it crucial to reestablish a "rampart" to protect the minority "against the passions and the powers of a majority."

Madison's Virginia Resolutions were slightly more moderate in tone than Jefferson's. Like Jefferson, Madison portrayed the union as a "compact to which the states are parties" and issued an impassioned warning against federal legislation that represented a deliberate and dangerous exercise of power not granted to the national government by the Constitution. But, instead of using Jefferson's belligerent scare word "nullification," Madison used the blander verb "interpose," asserting that states were "in duty bound to interpose for arresting the progress" of unconstitutional legislation.

In truth, Jefferson and Madison were less interested in offering a new theory of nullification or in asserting state sovereignty than in protecting the integrity of the First Amendment. Madison excoriated the Sedition Act's violation of First Amendment rights of conscience and freedom of the press as well as the "right of freely examining public characters and measures." The results of the intimidating Sedition Act, he had warned, would be citizens' withdrawal from public life and the ensuing "deadly lethargy" that always characterizes despotic regimes.

But Jefferson had ventured farther into dangerous territory, arguing that any additional unconstitutional assumptions of power and violations of rights would "necessarily drive these States into revolution and blood." Freedom of the mind, he believed, mattered even more than constitutional government and union. If called to defend that freedom, Jefferson wrote to a friend in 1799, "every spirit should be ready to devote itself to martyrdom."

In the end, how critical a role did the resolutions play? Not only had the Kentucky legislature deleted Jefferson's references to nullification in the final version of the resolutions that they approved, no other states joined Virginia and Kentucky in their protest. On the contrary, ten state legislatures censured Kentucky and Virginia. And even the then-governor of Virginia, James Monroe, never sought to prevent the enforcement of the Sedition Act.

And yet some southerners would never forget the principles embedded in those resolutions. Far from disappearing, they became the impassioned rallying cry of the states' rights movement, reawakened and mobilized by John Calhoun. Terms like "nullification," "interposition," and "state sovereignty" would become the mantra of states' rights proponents.

Guilt-stricken that he had provided the foundational arguments for Calhoun's states' rights doctrine—a theory that threatened the very survival of the Constitution and the nation—Madison, during the last years of his life, would painstakingly strive to argue the resolutions away and to underscore their benign intentions.

Anxious to exculpate himself of the taint of the states' rights ideology, Madison presented his own explication of the Virginia Resolutions, presenting a panoply of sensible thoughts. He pointed out that the utterly banal—and constitutional—matter of a protective tariff on imported woolen goods paled in importance next to the government's unconstitutional violation of the Bill of Rights. He insisted that he believed fervently in a perpetual union and had never intended to suggest that the minority could overrule the majority or that states could withdraw from the union. The Virginia Resolutions had referred only to the rights of the states in the plural to nullify federal laws and not, as Calhoun contended, to the right of a single state to nullify a law; and the verb "interpose" was meant only to suggest an appeal to public opinion, not resistance. It could even be argued that the immediate goal of the resolutions was to empower the majority of Americans in the next election by inspiring them to overthrow the Federalists in 1800. In that electoral campaign, the resolutions indeed proved supremely effective, for they played a vital role in galvanizing public opinion on behalf of Thomas Jefferson, who defeated Federalist John Adams.

Still, Madison's efforts in the early 1830s to deny that the resolutions had made the case for states' rights came too late. By then, the Virginia and Kentucky Resolutions already symbolized a potent strain of southern thought that would be used to buttress Calhoun's doctrine of nullification—and more The ideas that Madison and Jefferson had expressed in 1798, intentionally or not, had ignited a fire that would be impossible to quench.

Despite Madison's attempt to dilute the import and the repercussions of his resolutions, Senator Robert Hayne of South Carolina would thank him in early 1830 for the contribution that his Virginia Resolutions had made to the nullification cause. It was unfortunate that the resolutions of 1798 had been forgotten by so many citizens, Hayne told Madison, for the result of that forgetfulness was "the alarming assumptions of power on the part of the federal government." Now, nothing could save southerners, the South Carolinian wrote, "from consolidation and its inevitable consequences, the separation of the States, but the restoration of the principles of '98."

But Madison longed only to affirm his nationalist credentials. Though his defense of tariffs had already provoked opposition, at the risk of inciting still more attacks on himself, he responded to Hayne's letter of praise with a long and scholarly denunciation of nullification, published in 1830 for all to read in the North American Review.

The Constitution, Madison argued in his essay, could not be "altered or annulled at the will of the individual states." With twenty-four states already in the Union, a multiplicity of independent decisions was untenable; indeed, the vital principle could only be uniform laws for all. Nullification would simply overturn the fundamental principle of free government—majority rule—with the ultimate effect of overturning the government itself.

Madison did not deny that egregious legislation—like the Alien and Sedition Acts—might be passed. But the most effective means for opposing such intolerable legislation, he now argued, was not nullification, but rather a variety of constitutional remedies: the influence of senators and representatives in Congress; the power of the Supreme Court to determine the parameters of state and national authority; the responsibility of the president to the people; the liability of the executive and the judiciary to impeachment; and, finally, the ballot box. Indeed, he reminded his readers that, in the first presidential election following the Alien and Sedition Acts, Jefferson had triumphed, and that the new president, a champion of freedom of speech and the press, had let the Sedition Act expire. Failing the ballot box, there was still another option available to the states: a constitutional amendment. Only if every constitutional resort collapsed, then and only then, he allowed, could states assert "their original rights and the law of self-preservation."

(Dominion of Memories: Jefferson, Madison, and the Decline of Virginia, Susan Dunn, Basic Books, 2007, pp. 179–183)