“The distinction between a national government and a confederacy is not sufficiently discerned.” -Patrick Henry.
Introduction: Before beginning, it would be prudent to know what the Virginia and Kentucky Resolutions are. They are legal and political statements which were both adopted into law by the state legislatures, becoming the official Constitutional opinions by those respective states in 1798. The passing of the Alien and Sedition Acts triggered the writing and adoption of these two bills, since the Alien and Sedition Acts, being tyrannical, made it obvious that a way of recourse back to the constitutional rule of law was going to be warranted at some point. The Kentucky Resolves were written by then Vice-President Thomas Jefferson, writer of The Declaration of Independence, while the Virginia resolution was written by James Madison, the man who holds the title, “father of the Constitution.” The same knowledge about the rights of states to resist outside powers and other points that Thomas Jefferson had used in The Declaration of Independence was largely what went into the thought of the resolves. In a similar way, James Madison’s knowledge of the state sovereignty which arises from the forms or structures that governments take, likewise went into the principles of these resolutions. These laws were collaborated on by the two men. The principles talked about in the resolves are now sometimes referred to informally as the, “Principles of 98.”
When one undertakes to read original founding documents, they are surely to be stunned by the seemingly alien perspectives. There are a lot of funny terms, strange language, and of course, abundant anti-government rhetoric. One can hardly know what the founders and other classical liberals were saying unless one knows the definitions they’re speech labored under. Two such essential, and essentially different definitions that were held during the founding generation, were contained in the words federal and national. The founders (including the authors of these resolutions) saw a difference between a federal government and a national one. They defined a federal government, as a loosely bound collection of sovereign national governments, while they defined a national government as the central legal authority in a land.
A nation, they said, had lawful authority to do whatever it wanted except when it came to two matters, 1. the law of nations, and 2. legally binding treatise, contracts, in short, any legal agreement. The law of nations means that a nation should do all the good it can to every other nation without jeopardizing its own interests; the law of nations certainly wasn’t any kind of formal agreement between nations at the time, how could it be? Nevertheless, it was widely talked about in several western countries, especially France, England, and America. The law of nations came from Classical Liberal thought, and was largely intellectually accepted as being the only proper condition of relationships between two countries. Anything less than this was considered morally wrong and an illegitimate exercise of power. The second restriction on a nations legally legitimate exercise of power, they said, was that if a nation entered into an agreement, it had to follow it, for such was only proper. This was a nation.
A federal government is a collection of separate sovereign nations which come together for their common interests, except for those matters which would compromise their national sovereignty should the federal government get involved. For example, if a federal government produced any kind of business regulation, that would be an over reach of federal authority because that’s a nation’s job.
Why do I bring up the whole national vs. federal government distinction? Because the very first resolve in The Kentucky Resolutions immediately reminds us that the U.S. government is a federal government as opposed to a national one. That the states didn’t form the federal government on condition that the government could do whatever it wants, but that they limited it with enumerated powers in order to guard a states right to govern itself. What gave a state its rights? They saw the states as the nations, and like I said before, while they saw the United States government as a federal level comprising the states, for those were the potentially state enforced condign conditions upon which the union was set up. As Sir Edmund Pendleton explained in the Virginia Ratification Convention, “though the number [of federal congressmen] might be insufficient to convey information of necessary local interests to a state legislature, yet it was sufficient for the federal legislature, who are to act only on general subjects, in which this state is concerned in common with other states.” It’s not a matter of states rights after all, but a matter of the preexisting national sovereignty of the states.
These conditions could get to be condign because as Jefferson declared in the Kentucky resolutions, that whenever the U.S. government acts with undelegated powers (meaning powers not specifically mentioned in the Constitution), then that makes the action, “unauthoritative, void, and of no force.” And when the federal authority makes an unauthorized action, the states have not only the right, but they were duty bound to resist that action. Not the federal government in general, just those unauthoritative acts.
With the potential duty of state resistance, it’s important to know which party has the ultimate authority in determining the question of Constitutionality. That authority belonged to the states, for in a federal structure with no intermediate judge, the greatest common denominator of legal authority was the states. Now you might object that the Supreme Court has been made the judge of the Constitution, and indeed your right. But it’s been made the judge of Constitutionality, not by the Constitution for Article three yields no such power, but by its own declaration, which, without the authority of its constraining charter, leaves the Court with no lawful justification for the increase in power, but which by implication brands the Court as tyrants. But let us suppose that a part or whole of the federal government was made a judge of its own power, then according to Jefferson, “that would make itself, instead of the Constitution the ultimate judge.” Would not this make the federal government into an entirely national one, which surreptitious switch would destroy all authority of the government to exist in the first place, for it would demolish the lawful grounds upon which the union stood? For if the federal government decides the extent of its own power, then it has the ability to expand it to an unlimited degree, that being a nation.
But it was the intent of these resolves, not to destroy the power and authority of the federal government, but to preserve it. As the Virginia Resolution said, “to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.” And might I add that since 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 [state ratification]”, then not only is the U.S. a truly federal government, but as Madison goes on, “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… .” Jefferson in his bill similarly states: “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… .” But even after these beautiful explanations by Jefferson and Madison, some still wonder what they’re arguments were for how the states resisting unlawful power of the federal government could possibly result in a more lasting existence for the union, for this is what these founders claimed. To understand this, one must know what the generally excepted founding arguments were, for when secession should take place; these arguments were accepted by such luminaries of the day as Governor Edmund Randolph, George Mason, George Nicholas, Thomas Jefferson, St. George Tucker, and of course, James Madison. They said that the one case where the states should secede from the union, was if the union became fully national; interestingly, an example of this which St. George Tucker used in his book, View of the Constitution of the United States, was if Senators were elected by the people instead of elected by the states, then the union would become a kind of federal monarchy swallowing up the states into a new national order; for such a change in forms would remove the right of the states for suffrage. However, if the words interposition and nullification were to ring out of the states from the people, then secession would not be necessary, for if the states ever decided that succession was a proper course of action, by that time the States would have changed their federal government to the point that the states would have cause no longer for a separation, from our long, happy union.
A return to the national sovereignty of the states should be very welcome in our time, for the constitutional rule of law is the only proper foundation of political power in this great country, for it not only safely affixes the power of the union, but it keeps the united powers in proper proportion. Indeed, for the sovereignty of the states safely secures the sovereignty of the federal, for purposes of the states, “common defense, the security of their liberties, and their mutual and general welfare, binding themselves to assist each other.” 1. May it long be so, so our future may be bright. Long live our Republican Form of government, both in the Supreme States as the Constitution so specifically requires, and likewise in the federal government, comprised of the represented, representing States.
Remember the words of Patrick Henry, who, speaking of state sovereignty once said, “Guard with jealous attention the public liberty. Suspect everyone who approaches that jewel. Unfortunately, nothing will preserve it but downright force. Whenever you give up that force, you are inevitably ruined.” 2.
1. Quote from the Articles of Confederation, Article 3.
2. Virginia Ratification Convention, Thursday, June 5, 1788.