Politically Incorrect Guide To The Constitution (Politically Incorrect Guides) (14 page)

Virginia Republican leaders, meanwhile, met at Monticello and decided
that Virginia and Kentucky, two Republican-controlled states, would adopt resolutions in their state legislatures spelling out their objections
to the Alien and Sedition Acts.

Kentucky's Resolutions of 1798, drafted secretly by Jefferson to avoid
prosecution under the Sedition Act, argued for state-centered constitutionalism. The Constitution had been ratified-and thus the federal government had been created-by the states for their own purposes. They
had retained all powers not delegated by them to the federal government
through the Constitution. When the federal government undertook to
exceed the bounds of its authority, its acts were "unauthoritative, void,
and of no force."

The states were sovereign and "to this
compact [of the Constitution] each state
acceded as a state, and is an integral party."
Who, then, was to decide when the federal
government adopted unconstitutional policies? Surely not the federal government,
"since that would have made its discretion,
and not the Constitution, the measure of its
powers; but ... 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." When it came right down to it, the
states, which had created the federal government, still bore ultimate
responsibility for ensuring that their monster did not oppress their people.

The Sedition Act, Jefferson said, was objectionable on two constitutional grounds. First, and most important, it violated the Tenth Amendment principle: that powers not expressly delegated to the federal
government through the Constitution were reserved to the states or to the
people. Second, it violated the First Amendment's prohibition on congressional infringement of the rights of free speech and press. It was,
therefore, null and void.

Time to Rebel?

Thomas Jefferson and James Madison said
in 1798 that a state must resist federal
enforcement of an unconstitutional and
dangerous policy.

In Virginia, James Madison drafted the resolutions adopted by the
House of Delegates. He argued that when the federal government persisted in an unconstitutional and dangerous policy, as with the Alien and
Sedition Acts, the states "have the right, and are in duty bound, to interpose" to prevent their enforcement within their "respective" territories.

The two Republican legislatures asked other states to join them in propounding the principles laid out in the Virginia and Kentucky Resolutions.
No other southern state did so (though North Carolina considered it). But
ten states north of Virginia issued their own refutations of the Resolutions.

On what grounds? In general, they argued that the Sedition Act was a
good law that should have been adopted sooner, and that interpreting the
federal Constitution was a task for the federal courts, not for the states.

Kentucky responded in 1799 with a second set of resolutions, these
two conceived by Jefferson. Kentucky's legislature said that Kentucky
loved the Union "for the purposes for which it was created," and insisted
that it would be among the last states to secede. (This was an implied
threat, because while Republican leaders had privately discussed the possibility of secession, only one, Virginia congressman William Branch
Giles, had advocated it in public. So this was the first official mention of
secession in the context of the Alien and Sedition Acts.) But when the
federal government propounded unconstitutional and dangerous laws, it
was the duty of the states to nullify those laws.

James Madison, too, wrote a sequel to his Resolutions. His Report of
1800 did far more than simply defend the Virginia Resolutions of 1798.
It objected to the entire direction of Federalist policy in the 1790s. Madison's most significant argument concerned the use of the word state. Federalists had objected to the idea that the states had created the federal
government. The Philadelphia Convention, Federalist legislatures rightly
noted, was not a state organ, nor were the ratification conventions parts
of the state governments. Clearly, then, the states had not created the federal government.

Madison noted that the word state had three common significations:
it could be used to refer to the territory of a state (as in "I'd like to go to
the state of North Carolina"); it could be used to refer to a state government (as in "The state of Georgia was a party to Chisholm v. Georgia"); or
it could refer to the sovereign people of a state (as in "The state of Virginia ratified the Constitution"). Federalists were reading the word state
purely as referring to state government. The Virginia Resolutions used the
word state to refer to the sovereign people of Virginia. In saying that the
Union was a union of states, Republicans understood that the Union was
a union of sovereign peoples: the people of Delaware, the people of North
Carolina, the people of Maryland, the people of Rhode Island, and so on.

Most history and legal textbooks say that Jefferson and Madison
invented the idea of state sovereignty. But as we've seen, they only argued
for what the founders had already understood to be true about the sovereign states from the beginning, even if some of the founders (the nationalist and monarchist wings) wanted to change that understanding.

In the end, what Thomas Jefferson had predicted to John Taylor of Caroline proved to be true, or at least partly true. The Republicans won the
election of 1800, and the Federalists lost control of Congress and the
executive branch forever. The Sedition Act expired at the end of John
Adams's term. Jefferson hoped that this sweeping victory-Republican
vindication-meant that constitutional squabbles would now come to an
end.

efferson's victory was supposed to inaugurate a new era of strict
constitutional interpretation, putting an end to presidential, congressional, and judicial usurpations of power. It certainly wrought
a radical change in the programs and policies of the federal government. Shortly after his inauguration, Congress repealed all internal taxes,
so that the only sources of federal revenue would be tariffs and sales of
federally owned land. It also slashed the military budget dramatically.
Unlike modern "budget-cutting" politicians who claim to "slash" government spending while merely reducing its rate of growth by a point or two,
Jefferson's Republicans ultimately eliminated all seagoing vessels from
the navy and cut the army's manpower by nearly 95 percent.

The loathed Sedition Act expired on the last day of John Adams's
administration, and Jefferson not only pardoned everyone convicted
under it, but also returned the fines they had paid. (No historian has ever
thought to question whether Jefferson had constitutional authority to
refund fines paid by felons.)

Republicans also acted to rein in the federal judiciary. The last Federalist Congress had passed the Judiciary Act of 1801, expanding and reorganizing the judicial branch. Republicans hooted that the act was a
nakedly partisan attempt to pack the courts with Federalists just as the
people were throwing them from elected office.

Guess what?

-.' Supreme Court chief
justice John
Marshall had the
nerve to tell one of
the framers of the
Constitution that he
had been flat-out
wrong!

-40 Based on Marshall's
flawed reasoning in
McCulloch v
Maryland, President
Andrew Jackson
almost invaded
South Carolina.

-.' The phrase "high
crimes and
misdemeanors"
refers to the holders
of high offices-a
fact that Marshall's
Federalist cronies
conveniently
ignored.

One myth about this act, popularized by Republican propagandists at
the time and echoed by professional historians even now, is that John
Adams filled all the new posts established by the Judiciary Act with dedicated Federalists. In fact, Adams did not; some were not Federalists at
all. But the run of professional historians and legal scholars, as this book
should make apparent, rarely do their
homework.

In any event, the Jeffersonian Republican Congress not only repealed the Judiciary Act of 1801, but, on April 23, 1802,
it also passed a law proroguing the
Supreme Court for fourteen months to
ensure that before it returned to session,
the Judiciary Act would be fully repealed.
Federalists responded by talking among themselves about New England
secession. But they were let down by the Supreme Court, which, when it
returned, accepted the repeal's constitutionality.

Still, the reckoning between the Republican Congress and the Federalist judiciary had only just begun. The main battle centered on Congress's attempt to impeach and remove two federal judges.

United States district court judge John Pickering of New Hampshire
appeared to be conducting his duties while severely intoxicated. Under
the Judiciary Act of 1801, circuit judges could step in when a district
judge was incapacitated (or, in this case, inebriated). As it had been
repealed, however, Pickering had to do his duty himself.

Some of Pickering's friends tried to defend him by saying he was
insane-not drunk. Other Federalists counseled him not to resign his office, and so he didn't. Jefferson referred the matter to the House in early
1803, but the Senate trial did not begin until March 1804.

A Book You're Not
Supposed to Read

Impeachment: The Constitutional Problems
by Raoul Berger; Cambridge, MA: Harvard
University Press, 1973.

The Constitution provides in Article II, Section 4 that "the President,
Vice President and all civil Officers of the United States, shall be removed
from Office on Impeachment for, and Conviction of, Treason, Bribery, or
other high Crimes and Misdemeanors."

The phrase "high crimes and misdemeanors" was borrowed, like much
else in the Constitution, from English precedents. It had a precise legal
meaning when the Constitution was ratified: it covered not only "high
crimes" and petty corruption, but also disability, including physical,
mental, or psychological impairment. No one has ever claimed, however,
that politicians were legal scholars, and most of the senators accepted
Pickering's lawyer's argument that insanity was neither a high crime nor
a high misdemeanor. Still, they removed Pickering from office anyway.