1816)
The historian Richard E. Ellis wrote:
| “ | By creating a national government with the authority to act directly upon individuals, by denying to the state many of the prerogatives that they formerly had, and by leaving open to the central government the possibility of claiming for itself many powers not explicitly assigned to it, the Constitution and Bill of Rights as finally ratified substantially increased the strength of the central government at the expense of the states. | ” |
The extent of this change and the problem of the actual distribution of powers between state and the federal governments would be a matter of political and ideological discussion up to the Civil War and beyond. In the early 1790s the debate centered on Alexander Hamilton’s nationalistic financial program versus Jefferson’s democratic and agrarian program, a conflict that led to the formation of two opposing national political parties. Later in the decade the Alien and Sedition Acts led to the states’ rights position being articulated in the Kentucky and Virginia Resolutions. The Kentucky Resolutions, written by Thomas Jefferson, contained the following, which has often been cited as a justification for both nullification and secession:
| “ | … that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, 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 fœderis) 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: that nevertheless, this commonwealth, from motives of regard and respect for its co-States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it… . | ” |
The Virginia Resolutions, written by James Madison, hold a similar argument:
| “ | The resolutions, having taken this view of the Federal compact, proceed to infer that, in cases 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 to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them. ...The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition. | ” |
Historians differ over the extent to which either resolution advocated the doctrine of nullification. Historian Lance Banning wrote, “The legislators of Kentucky (or more likely, John Breckinridge, the Kentucky legislator who sponsored the resolution) deleted Jefferson's suggestion that the rightful remedy for federal usurpations was a "nullification" of such acts by each state acting on its own to prevent their operation within its respective borders. Rather than suggesting individual, although concerted, measures of this sort, Kentucky was content to ask its sisters to unite in declarations that the acts were "void and of no force", and in "requesting their appeal" at the succeeding session of the Congress.” The key sentence, and the word "nullification" was used in supplementary Resolutions passed by Kentucky in 1799.
Madison's judgment is clearer. He was chairman of a committee of the Virginia Legislature which issued a book-length Report on the Resolutions of 1798, published in 1800 after they had been decried by several states. This asserted that the state did not claim legal force. "The declarations in such cases are expressions of opinion, unaccompanied by other effect than what they may produce upon opinion, by exciting reflection. The opinions of the judiciary, on the other hand, are carried into immediate effect by force." If the states collectively agreed in their declarations, there were several methods by which it might prevail, from persuading Congress to repeal the unconstitutional law, to calling a constitutional convention, as two-thirds of the states may. When, at the time of the Nullification Crisis, he was presented with the Kentucky resolutions of 1799, he argued that the resolutions themselves were not Jefferson's words, and that Jefferson meant this not as a constitutional but as a revolutionary right.
Madison biographer Ralph Ketchum wrote:
| “ | Though Madison agreed entirely with the specific condemnation of the Alien and Sedition Acts, with the concept of the limited delegated power of the general government, and even with the proposition that laws contrary to the Constitution were illegal, he drew back from the declaration that each state legislature had the power to act within its borders against the authority of the general government to oppose laws the legislature deemed unconstitutional.” | ” |
Historian Sean Wilentz explains the widespread opposition to these resolutions:
| “ | Several states followed Maryland's House of Delegates in rejecting the idea that any state could, by legislative action, even claim that a federal law was unconstitutional, and suggested that any effort to do so was treasonous. A few northern states, including Massachusetts, denied the powers claimed by Kentucky and Virginia and insisted that the Sedition law was perfectly constitutional .... Ten state legislatures with heavy Federalist majorities from around the country censured Kentucky and Virginia for usurping powers that supposedly belonged to the federal judiciary. Northern Republicans supported the resolutions' objections to the alien and sedition acts, but opposed the idea of state review of federal laws. Southern Republicans outside Virginia and Kentucky were eloquently silent about the matter, and no southern legislature heeded the call to battle. | ” |
The election of 1800 was a turning point in national politics as the Federalists were replaced by the Democratic-Republican Party led by Thomas Jefferson and James Madison, the authors of the Kentucky and Virginia Resolutions. But, the four presidential terms spanning the period from 1800 to 1817 “did little to advance the cause of states’ rights and much to weaken it.” Over Jefferson’s opposition, the power of the federal judiciary, led by Federalist Chief Justice John Marshall, increased. Jefferson expanded federal powers with the acquisition of the Louisiana Territory and his use of a national embargo designed to prevent involvement in a European war. Madison in 1809 used national troops to enforce a Supreme Court decision in Pennsylvania, appointed an “extreme nationalist” in Joseph Story to the Supreme Court, signed the bill creating the Second Bank of the United States, and called for a constitutional amendment to promote internal improvements.
Opposition to the War of 1812 was centered in New England. Delegates to a convention in Hartford, Connecticut met in December 1814 to consider a New England response to Madison’s war policy. The debate allowed many radicals to argue the cause of states’ rights and state sovereignty. In the end, moderate voices dominated and the final product was not secession or nullification, but a series of proposed constitutional amendments. Identifying the South’s domination of the government as the cause of much of their problems, the proposed amendments included “the repeal of the three-fifths clause, a requirement that two-thirds of both houses of Congress agree before any new state could be admitted to the Union, limits on the length of embargoes, and the outlawing of the election of a president from the same state to successive terms, clearly aimed at the Virginians.” The war was over before the proposals were submitted to President Madison.
After the conclusion of the War of 1812 Sean Wilentz notes:
| “ | Madison’s speech affirmed that the war had reinforced the evolution of mainstream Republicanism, moving it further away from its original and localist assumptions. The war’s immense strain on the treasury led to new calls from nationalist Republicans for a national bank. The difficulties in moving and supplying troops exposed the wretchedness of the country’s transportation links, and the need for extensive new roads and canals. A boom in American manufacturing during the prolonged cessation of trade with Britain created an entirely new class of enterprisers, most of them tied politically to the Republicans, who might not survive without tariff protection. More broadly, the war reinforced feelings of national identity and connection. | ” |
This spirit of nationalism was linked to the tremendous growth and economic prosperity of this post war era. However in 1819 the nation suffered its first depression and the 1820s turned out to be a decade of political turmoil that again led to fierce debates over competing views of the exact nature of American federalism. The “extreme democratic and agrarian rhetoric” that had been so effective in 1798 led to renewed attacks on the “numerous market-oriented enterprises, particularly banks, corporations, creditors, and absentee landholders”.
Read more about this topic: Nullification Crisis, Background (1787