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Jefferson on Nullification

July 11, 2005

I've recently posted some links on federalism, Kelo, and related matters. One of them is the 1799 Kentucky Resolution (2), written by Thomas Jefferson. The meat of the final resolution adopted in 1799 is fairly short, and beautifully eloquent. Take a look at it—it's not too hard to follow, even with the antiquated, flourishing English.

Those who attack us libertarian advocates of federalism as being some kind of troglodyte neoconfederates would also have to attack this eloquent, intelligent attempt to maintain the original structure of the federation so as to keep the new central state within limits. Libertarians who caricature and impugn the motives of those of us who have a respect and fondness for federalism ought to be ashamed of themselves. Note how many of the warnings and predictions here came true.

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 adminster 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: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiesecence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:
AND FINALLY, in order that no pretexts or arguments may be drawn from a supposed acquiescence on the part of this commonwealth in the constitutionality of those laws, and be thereby used as precedents for similar future violations of federal compact; this commonwealth does now enter against them, its SOLEMN PROTEST.

It is just beautiful and sensible. The federal union was created for purposes, but it should not be "permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained." For if it is permitted to disregard the limits placed on it by delegating only certain powers to it—that is, if it seizes powers not granted to it—then "annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence".

In other words, the purpose of "states' rights" or state governments, from the point of view of the union, was to prevent the new, limited, federal government from becoming a "general consolidated one"—that is, a large, unlimited, central state of plenary powers.

The Resolution notes that the idea "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 adminster the government, and not the constitution, would be the measure of their powers."

This is eminently sensible. If the feds are the own judges of the limits on their powers, then those limits will surely be gradually eroded, and they will gradually declare themselves to have powers never really delegated to them. So who is it that can determine whether federal law is constitutional?

"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 other words, it is the states, the ones who created the new federal government by means of the compact (Constitution), and who are parties with each other to that compact, who have to be the judge of Constitutionality, not the new state itself. Then, having established its right to judge the constitutionality of federal actions, Kentucy declares "that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution." And what libertarian can disagree?

What a shame that some libertarians not only reject these principles, which were designed to keep the federal government in check—they not only reject these principles, but they malign modern advocates of similar views as being racist throwbacks fighting progres.

What a shame. What an embarrassment.

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