Jefferson and Nullification
Clyde
Wilson
"Resolved, That the several States composing the United
States of America, are not united on the principle of
unlimited submission to their General Government . . . . and
that whensoever the General Government assumes undelegated
powers, its acts are unauthoritative, void, and of no force.
. . . that the government created by this compact [the
Constitution for the United States] 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; . . . . that this would be to surrender the form of
government we have chosen, and live under one deriving its
powers from its own will, and not from our authority; . . .
and that the co-States, recurring to their natural right in
cases not made federal, will concur in declaring these acts
void, and of no force, and will each take measures of its
own for providing that neither these acts, nor any others of
the General Government not plainly and intentionally
authorised by the Constitution, shall be exercised within
their respective territories."
So wrote Thomas Jefferson,
Vice President of the United States, in a document drafted
at the request of members of the Kentucky legislature in
1798. Kentucky passed Jefferson’s paper and broadcast it to
the world as the definitive opinion and stand of the
sovereign people of the State. The language drafted by James
Madison for similar documents adopted by the Virginia
legislature in 1799 and 1800 was similarly unequivoical in
its constitutional position and forceful in expression.
The people, acting through their natural
polities, the States, had created and given authority to the
Constitution of the United States. The Constitution
conferred powers on a general government to handle certain
specified matters that were common to the "general welfare"
of all the States. That government was an agent. It could
not be the judge of its own powers. To allow it to be so
would mean nothing less than a government of unlimited
power, a tyranny. The partners to the Constitution, the
sovereign peoples of the States, were the final judges of
what they had intended the Constitution to mean. When the
general government exceeded its power it was the right and
duty of the State to interpose its authority and defend its
people from federal acts of tyranny – yes, to render a
federal law inoperative in the State's jurisdiction...
The scholars of the rising leftist
Establishment who took over American history writing
beginning in the 1930s invented a self-flattering fable to
render the Kentucky and Virginia documents themselves null
and void. Jefferson and Madison, they said, really did not
care about States’ rights. They were merely anticipating the
great tradition of the American Civil Liberties Union in
opposing the Alien and Sedition Acts. Their concern was to
defend the freedom of speech of the non-conformist radicals
of their time.
This established interpretation is a lie
and requires a good deal of either ignorance,
self-deception, or deliberate falsehood to peddle. It is
true that the Virginia and Kentucky acts were not followed
up by active resistance to the feds. They did not have to
be, because Jefferson and his friends won the following
elections, got rid of the bad laws, and compensated those
who had been harmed by them. There is evidence that Virginia
and North Carolina were quite willing and able to call out
the militia if necessary and that grand juries were standing
by to indict any offending feds.
Not interested in State rights? Jefferson
reiterated the centrality of State rights to the
preservation of liberty and self-government in his inaugural
address (and in hundreds of letters for the rest of his
life). His party and the succeeding Democratic party
proclaimed "The Principles of 1798" repeatedly as their
foundational philosophy, right up to the War to Prevent
Southern Independence. It could not be clearer: in the
American government system State rights and liberty could
not be separated. They were the same thing. They had the
same defenders and the same enemies. The Sedition Act was
not just an invasion of individual rights, it was an illegal
invasion of a sphere that the people had left to their
States.
Further, the Sedition Act, punishing
criticism of federal officials with jail sentences and
fines, had been passed in stark defiance of the recently
adopted First and Tenth Amendments which absolutely forbade
Congress to pass any law abridging the freedom of speech and
press and reserved to the States all powers not specifically
conferred on the government. How then could Congress pass
such a law as the Sedition Act? Because the Federalists,
Hamilton and Adams and their supporters, justified their
legislation by invoking the Common Law’s provisions about
the punishment of "sedition." The Common Law existed in each
State to the extent that State had found it worthwhile to
adopt it, but it had no place in a written document of
delegated powers such as the Constitution for the United
States. If the feds could ignore specified power limitations
by grafting Common Law jurisdiction into the Constitution,
then literally everything under the sun could be brought
under their power. Not only that, but everything under the
sun could be ultimately disposed of by the federal courts,
which would become the new sovereign. This had to be
stopped.
Interposition by Virginia and Kentucky
was intended to halt the Northeastern elite's relentless
agenda to become the economic and moral overseers of all
Americans through the federal machine. This has always been
the engine for the unconstitutional usurpation of federal
power – then, since, and now. When State interposition next
came into serious play in the United States, the occasion
was the tariff laws, by which the Northeastern elite had
perverted a constitutional power to raise a revenue into a
means of excluding foreign competition and creating a
captive market for their profit.
After their service as presidents,
Jefferson and Madison lived by their republican ethics –
they were private citizens with no special right to
interfere in public affairs. But they expressed opinions on
issues of the day privately to those who asked and who they
trusted. When, less than a generation after the "Principles
of 1798" had been proclaimed, the possible nullification of
the tariff laws by South Carolina drew attention, Jefferson
was gone from the scene. Madison, in contradiction of his
own plain language and the circumstances of 1798–1800,
claimed that state interposition was not what they had had
in mind at that time. Historians who want to trash States'
rights and the South Carolina resistance to the tariff
during 1828–1833 lean heavily on Madison's somewhat vague
statements. Self-evidently, Madison contradicted himself, as
he did quite often throughout his career. Unlike Jefferson,
he was a superficial and inconsistent thinker who often
swung from one side to the other. (That is why his
pretentious speculations in The Federalist, which, by
his own admission, have absolutely no constitutional
authority whatsoever, are the favourite text of third string
"constitutional lawyers" and would-be "political
philosophers.")
We do not have to wonder what Jefferson
in his post-presidential years thought about State
interposition. It is not in the least a mystery, although it
is something of a secret since "scholars" have assiduously
avoided exposure of the relevant documents, which are not
easy to find. In 1825, the day after his last Christmas in
this earthly realm, Jefferson wrote to William Branch Giles,
former Senator from Virginia and stalwart Jeffersonian. He
shared Giles's concerns about the state of federal affairs.
"I see, as you do, and with the deepest affliction, the
rapid strides with which the federal branch of the
government is advancing towards the usurpation of all the
rights reserved to the States, and the consolidation in
itself of all powers, foreign and domestic; and that, too,
by constructions which, if legitimate, leave no limits to
their powers."
The minority President John Quincy Adams
was pushing a large program of federal expenditures and
expanded powers. Adams and his Congressional allies,
Jefferson said, for an example, had construed the delegated
power to establish post roads into a power to cut down
mountains and dig canals. The old, evil program of the
Northeastern "monarchists" to enrich themselves off the
earnings of the agriculturalists was once again in the
saddle. Reason and argument were no good in such a
situation. "You might as well reason and argue with the
marble columns" in the Capitol.
The South might well be forced into a
choice between "the dissolution of the Union with them,
or submission to a government without limitation of powers.
Between these two evils, when we must make a choice, there
can be no hesitation." However, not yet. "But in the
meanwhile, the States should be watchful to note every
material usurpation on their rights; to denounce them as
they occur in the most peremptory terms, to protest them as
wrongs to which our present submission shall be considered,
not as acknowledgments..."
Jefferson mentioned that he had written a
letter to Giles on Christmas about important matters, of
which Giles "will be free to make use what you please." I
have not found this letter, but it may have something to do
with a document Jefferson wrote out on December 24, which he
titled "The Solemn Declaration and Protest of the Citizens
of Virginia on the Principles of the Constitution of the
United States of America and the Violation of Them." It
seems to have been intended for the use of Jefferson's
neighbours in the grand jury of Albemarle County to begin a
program for Virginia once more to interpose, against
Congress's usurpation in its "internal improvements"
expenditures.
Just three years after Jefferson wrote
this, another Vice-President of the United States, at the
request of his State, drafted a "South Carolina Exposition,"
which described the illegality and injustice of the
protective tariff and the proper remedy for it: State
interposition upon "The Principles of 1798." This
"Exposition" was approved and broadcast to the world by the
legislature of South Carolina, along with a "Protest." The
usual clamour of rent-seekers and petty political operators
was raised, claiming, among other things, that Jefferson had
not written the Kentucky Resolutions. In 1831 Jefferson's
son-in-law produced the draft in the great man's own hand.
[There was so much demagoguery broadcast
by the opponents of nullification and the shoddy historians
who repeat their propaganda, that it is worth saying
something about the roles of Jefferson and Calhoun as
drafters of the Kentucky Resolutions and the South
Carolina Exposition. Jefferson, as we have noted, did not
publicly acknowledge his authorship. Calhoun's authorship of
the Exposition was characterised as an evil, secretive
political operation. This propaganda is designed by and for
people who can think only in terms of politicians and
parties instead of principles and are ignorant of the ethics
of republican virtue that influenced many Americans before
Lincoln. Authorship was not acknowledged because it was
desired that the statements be understood as the voice of
the people of the State, not mischaracterised as merely the
position of a national politician.]
In a later generation, another minority
president seemingly destroyed forever the constitutional
role of the States by declaring the open, democratic,
deliberative acts of fourteen States to be only
"combinations" of criminals who refused to obey him. Lincoln
made that stick by a brutal war of conquest that did not
"preserve the Union" but changed the Union into a central
state with no limits to its power. Those who hope to revive
a constitutional role for the States as counters to the
present U.S. Empire, must hope to make the States once more
into self-conscious, viable polities who have the political
will to enact nullification and stand by it.
(This article was first published from
Lew Rockwell.com.)
____________
Clyde Wilson, Ph.D., Professor
Emeritus of the University of South Carolina, is the South’s
leading historian, prolific author, and South Carolina
Delegate to the Southern National Congress. |
