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Jul 10 2012

The Principles of 98

In 1798, James Madison wrote “The Virginia Resolutions” and Thomas Jefferson wrote “The Kentucky Resolutions”. Both documents supported the position that states have the right to challenge the constitutionality of federal laws and refuse to enforce them if they are found to be unconstitutional.

In the summer of 1798, Congress passed a law that became known as “The Alien and Sedition Act”, which gave President John Adams the power to deport any alien viewed with suspicion. Republican opponents to this law considered it to be a violation of First Amendment right to free speech, the Fifth Amendment right to due process and the Tenth Amendment reservation of powers to the states.

Tenth Amendment to the United States Constitution
(part of the “Bill of Rights”)

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.

In the Kentucky Resolution, Jefferson explained the following:

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.

The Resolution continued and eventually declared:

–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 foederis) 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:–

Opponents of the resolutions argued that federal courts had the final responsibility to judge the constitutionality of laws. Alexander Hamilton and George Washington supported this point of view and no other states supported the resolutions, some actively rejecting them.

In 1803, the famous Supreme Court case of Marbury v. Madison

In the court opinion, Chief Justice John Marshall wrote,

The Government of the United States has been emphatically termed a government of laws, and not of men. It will certainly cease to deserve this high appellation if the laws furnish no remedy for the violation of a vested legal right.

He also wrote,

It is emphatically the province and duty of the Judicial Department to say what the law is.

This seems to have settled the argument historically, even though Thomas Jefferson disagreed with the ruling of the court, writing,

You seem to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men, and not more so. They have, with others, the same passions for party, for power, and the privilege of their corps. Their maxim is ‘boni judicis est ampliare jurisdictionem‘ and their power the more dangerous as they are in office for life, and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots. It has more wisely made all the departments co-equal and co-sovereign within themselves.