State Interposition
The nature of the relationship of the several States to the federal government as established by the Constitution of the United States was central to the split between the northern and southern states which coalesced as a dispute over slavery. From the formation of the Republic, southern States had asserted the integrity of State sovereignty, challenged the concept of federal supremacy, and developed arguments supporting State nullification of federal laws and the right of secession in a series of actions during the period from 1798-99 and 1828-33, prior to the Civil War
ALIEN AND SEDITION ACTS
(Sources: Dumas Malone's Jefferson And The Ordeal of Liberty, Little, Brown And Co., c1962; Alfred H. Kelly & Winfred A. Harbison's The American Constitution, Its Origins and Development, Fourth Edition, W.W. Norton & Co., Inc. c1970.)
Federalist judges refused to permit the constitutionality of the controversial Acts to be heard in court to discredit the federalist tenets. The 1798 Kentucky and Virginia State legislatures passed Resolutions against the federal Alien & Sedition Acts. Behind the scenes, Jefferson is known to have helped draft the Kentucky Resolutions and James Madison the Virginia Resolutions. (The Alien and Sedition Acts were not renewed during Jefferson's presidency. Later, in 1812, the Supreme Court in United States v. Hudson and Goodwin ruled that there was no such crime as seditious libel under the Constitution.)
In a letter to Elbridge Gerry on January 26, 1799, Jefferson stated:
"I do then, with sincere zeal, wish an inviolable preservation of our present federal constitution, according to the true sense in which it was adopted by the States,...I am for preserving to the States the powers not yielded by them to the Union, & to the legislature of the Union its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the general government, & all those of that government to the Executive branch..." (Jefferson at 408-409.)
Jefferson also commented:
"...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...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 over them, (Jefferson at 405.)
The underlying beliefs expressed in the two Resolutions have been called the "Doctrine of State Interposition." This doctrine claimed that the Constitution was a compact between sovereign States that delegated strictly limited powers to the federal government. When the federal government exceeded those limits and threatened the liberties of citizens, States had a right to interpose their authority. The States, and not the federal courts, had the authority to decide whether the federal government had exceeded its power.
The Kentucky Resolutions declared the Constitution to be a compact to which "each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party." "...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 make its discretion, and not the Constitution, the measure of its powers," Each State, as a party to the compact, "has an equal right to judge for itself, as well as of infractions as of the mode and measure of redress."
The Kentucky Resolutions contained an injunction to the senators and representatives of the state of Kentucky in Congress to seek a prompt repeal of the "unconstitutional and obnoxious acts," and they expressed the hope that other states, "recurring to their natural right in cases not made federal," would concur in declaring these acts void and of no force. (Jefferson at 406.)
It its second Resolutions of 1799, Kentucky stated:
"The several states who formed the instrument [the Constitution] being sovereign and independent, have the unquestionable right to judge the infraction; and, That a nullification of those sovereign ties, of all unauthorized acts done under color of that instrument is the rightful remedy."
The Virginia resolution expressed "a warm attachment to the union of the states" and a firm resolve to support the government of the US in exercise of its legitimate legislative powers but declared "the powers of the Federal Government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no further valid than they are authorized by the grant enumerated in that compact." The Resolution urged the other States to concur with the commonwealth of Virginia "in declaring, as it does hereby declare, that these acts aforesaid are unconstitutional."
The Resolututions stated further:
"...in case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact, the states, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them."
Jefferson responded in a letter to Madison:
"...But determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved and in which alone we see liberty, safety and happiness," (Jefferson at 421.)
Madison, in his "Report" of 1800, expressed his belief that the federal powers were limited by "the plain sense and intention" of the Constitution, and "no further valid than they are authorized by the grants enumerated in the compact." Also, he said that in the case of federal exercise of ungranted powers, the States, as parties to the compact, "have the right and are duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits the authorities, rights, and liberties appertaining to them," (Jefferson at 408.)
