In the pages of The Federalist, Publius reassured not only his contemporaries but future generations of Americans, that if there be times in the life of our republic in which one or more branches of the national government should shamelessly exercise power beyond that prescribed by the Constitution, the state legislatures will be ever ready to mark the violation and “sound the alarm to the people.”
Nine years after the institution of the new government under the Constitution, in response to the notorious Alien and Sedition Acts, the state legislatures of Kentucky and Virginia did precisely this. Thomas Jefferson drafted the Kentucky Resolutions and James Madison penned the Virginia Resolutions. In some of the toughest, most exacting political language of America’s political tradition, Jefferson and Madison threw down the gauntlet: the national government had broken trust with the sovereign authority, and they were put on notice that such violations of the people’s fundamental rights and liberties would not be tolerated by a free and self-respecting people.
Would any of the current state legislatures sponsor such resolutions today if the national government were to engage in a “deliberate, palpable, and dangerous” exercise of power not granted by the Constitution? If not, is it because the state legislatures don’t dare to challenge the national government, the way that Jefferson and Madison did? Or is it because they know such efforts would be futile? Do they accept the tremendous growth of national governmental power in the twentieth century and view the states are merely subordinate administrative units that must obey the powers in Washington? Or, like the Federalist-controlled state legislatures in the other states in 1798, do they reject the Jeffersonian and Madisonian view that the states have a role in checking abuses of power by the national government, supposing that this role is the sole province of the national judiciary?
In 1798, Vice President Jefferson viewed the passage of the Alien and Sedition Acts as the declaration of political war on the principles of republican government. However, he did not think it was appropriate for him to register a protest against the legislation in his official capacity. So, as he had done previously, he turned to the state legislatures to establish a strategic bulkhead to fight against what he perceived as decidedly anti-republican measures. Accordingly, he drafted the Kentucky-sponsored resolutions and he called upon his good friend and political ally James Madison to compose Resolutions for Virginia and to solicit the backing of that state’s legislature.
Jefferson did not pull punches. In the Kentucky Resolutions he declared the Alien and Seditions Acts to be “unauthoritative, void, and of no force.” Each state acceded to the constitutional compact as “an integral party.” He argued that in such a compact there is no common judge, and so “each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
In these resolutions Jefferson assured his countrymen that Kentucky remained sincerely anxious for the preservation of the union of the states, but that it would not submit to the exercise of undelegated and unlimited power by the national government. Since the members of the national government are chosen by the people, “a change by the people would be the constitutional remedy,” Jefferson wrote. But when unauthorized powers are assumed, “a nullification of the act is the rightful remedy,” for “every State has a natural right in cases not within the compact.” Nonetheless, out of respect for the other states, Kentucky wished to communicate with the other parties to the compact, who are “solely authorized to judge in the last resort of the powers exercised under it.” Taking aim at the Federalist mantra calling for public confidence in government, Jefferson proclaimed, “free government is founded in jealousy, and not in confidence.” It is jealousy, not confidence, that sets constitutional limitations on the exercise of power. In the United States, the Constitution has prescribed “the limits to which, and no further, our confidence may go.”
Unlike Jefferson, Madison deliberately refrained from declaring acts of the national government null and void. In contrast, to Jefferson’s hard-hitting and somewhat shrill communication, which included a not-so-veiled threat to dissolve the American Union, Madison forcefully but carefully set forth his arguments in the Virginia Resolutions, charging the national government with violating the most fundamental principles of liberty, but simultaneously declaring Virginia’s membership in and sincere attachment to the Union of the American states. Years later, Madison vehemently protested against John C. Calhoun’s appeal to the Kentucky and Virginia Resolutions as prototypes for the South Carolinian’s arguments for state sovereignty and the right of nullification. He had never claimed sovereign authority for a state or for the states.
Rather, Madison had always insisted that in a republic the people are sovereign. In the American federal republic the people had, by their sovereign authority, divided power between the national and the state governments, thereby establishing a central government of constitutionally enumerated and limited powers. In Madison’s view, the importance of the state governments and the preservation of the federal character of the United States were not tied to any notion of state sovereignty. Rather, his commitment to the principle of federalism was grounded in a conception of state governments as essential to the formation and expression of public opinion in a large and populous nation. “[W]ere the state governments abolished,” he wrote in the National Gazette in 1791, “neither the voice nor the sense of ten or twenty millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs.” Without the state governments, in the extended republic of the United States the people would not be able to communicate effectively and unite to control the abuses of government. Conversely, “the most arbitrary government is controuled where the public opinion is fixed.” In the case of an overt and dangerous unconstitutional grab for power by the national government, Madison had argued in Federalists 44 and 46 that the state legislatures may “sound the alarm to the people, and…exert their local influence in effecting a change of federal representatives,” thereby “annul[ing] the acts of the usurpers.”
In The Federalist and the National Gazette essays Madison developed the theory of the importance of the states in marshalling public opinion; in 1798 he applied this theory to practice in his battle to overturn the Alien and Sedition Acts. Both acts, he declared, constitute clear violations of the United States Constitution. In the one case the national government assumed a power not granted by the Constitution, and in the other it exercised a power expressly forbidden by the First Amendment. In the Virginia Report of 1800 Madison set forth a lengthy defense of the Virginia Resolutions; in addition to the charge of unconstitutionality, he argued that the practical effect of the Sedition Act would be to squelch the expression and formation of public opinion. In free governments, he claimed, “it is the duty as well as right of intelligent and faithful citizens, to discuss and promulgate [the proceeding of government] freely, as well to control them by the censorship of the public opinion, as to promote a remedy according to the rules of the constitution.” In an extensive republic in which the central government possesses a magnitude of powers and where the great body of the people is far removed from the seat of government, the state governments serve as “intermediate” bodies. The purpose of the Virginia Resolutions, he explained, was to utilize the states as vehicles to excite public reflection and mobilize public opinion.
Furthermore, Madison argued, the difficulty of circulating knowledge about governmental proceedings throughout the large nation and of maintaining responsibility to the people by public officials requires a particularly high degree of liberty of the press. The Federalist measure restricting the freedom of the press was based on the non-republican British practice. Driven by a desire to “extend the ground of public confidence,” the Federalists would place a censorial power in the government over the people. However, Madison’s concern, like Jefferson’s, was to hold the government responsible to the people. In “republican government,” Madison declared, “the censorial power is in the people over the government, and not in the government over the people.” A free press “alone can give efficacy to [the national government’s] responsibility to its constituents.” It is the means for freely examining public characters and public measures, and for the free communication of opinions, which is “the only effectual guardian of every other right” in a free society.
Ten state legislatures, all of them controlled by the Federalist Party, responded to the Kentucky and Virginia Resolutions; not one of them supported the resolutions. Instead, they censured them, with several states arguing that the issue of constitutionality was properly within the purview of the judicial branch of government, not the state legislatures. In the Virginia Report Madison answered these charges, denying that the judiciary is the sole or ultimate expositor of the Constitution. However true it might be that the Judicial department is the tribunal of last resort in deciding the meaning of the Constitution, Madison argued, it is only the final resort in respect to the other governmental departments. It is not the last resort vis a vis the parties to the constitutional compact, from whom it, like the other branches of government, derives its delegated and legitimate authority.
Accordingly, the Constitution delegates certain powers to the government of the United States, apportioning these powers among the several branches of the national government. But neither the Constitution nor the Court that interprets it has the final political say, for there is an authority that is even greater than the Constitution – that created the Constitution and gave it legitimacy. “The authority of constitutions over governments, and of the sovereignty of the people over constitutions,” Madison said, are constitutive republican truths. In this, Madison was simply restating the fundamental maxim his friend Jefferson had so eloquently expressed in 1776, that the just powers of government are derived from, and only from, the people. As such, it is the people who are the final judges of the legitimacy of governmental actions.
Both the Kentucky and Virginia Resolutions invoke extraordinary measures to remedy dangerous and flagrant cases in which the national government deliberately oversteps its constitutional boundaries. Both Jefferson and Madison used the states to go above the head of the national government and appeal directly to the people of the several states, the original parties to the American compact. In the Kentucky Resolutions, however, Jefferson invoked the right of the citizens of a particular state to declare an act of the general government null, void, and of no force, thus setting forth a doctrine that in Madison’s mind that was contrary to the principles of the social compact and which could undermine the constitutional union he had worked for over a decade to establish and secure. Like Jefferson’s radical notion of calling a constitutional convention every nineteen or so years to rewrite the fundamental law of the land, his invocation of the right of a single state to nullify the constitutional compact struck Madison as extreme, imprudent, and inconsistent with social compact theory.
In Madison’s mind, such measures ought to be reserved for extraordinary occasions in which the routine constitutional and political safeguards against the usurpation of power had proved inadequate. Madison sought to establish an ongoing mode of governance for the nation by the deliberate, settled opinion of the public, and he sought, in the last resort, to correct constitutional abuses by the general government by an extraordinary appeal to the people, facilitated by the state legislatures.
It is as critical to see that Madison reserved the path of direct appeal to the people (as in the Virginia Resolutions) for certain great and extraordinary occasions, as it is to understand that Jefferson saw nothing extraordinary or unduly risky about such public appeals. In essence, in Madison’s conception of the ordinary course of American political activity, he envisioned a dynamic but stable democratic process to realize the ends Jefferson sought but chose to achieve by potentially politically hazardous means. Whereas Jefferson sought to implement modes outside of the ordinary processes of law, in the form of constitutional conventions or negations of contractual/compact agreements, Madison sought to establish a political practice in which, whenever possible, the settled decisions of the people would control and direct government. Madison’s cure was not to pit the extraordinary authority of the people against the ordinary deliberative processes of majority decision-making, but to hold the government dependent on and answerable to the deliberate, sovereign public.
While Madison did try to show Jefferson the weaknesses of his theory, he always did so with the utmost civility and respect for his dear friend and elder statesman. Years later, in the 1830s, when the idea of perpetual union was under attack from John C. Calhoun, Madison explained in no uncertain terms what he did not say quite as bluntly when his good friend Jefferson was living. There is no reversion to the parties of the compact to decide constitutional questions, he declared, there is only the constitutional processes or, barring the success of these processes, the right of revolution. Once ratified, the Constitution represents the supreme authority of the sovereign people – whether that be the people of the nation or the several states, it does not matter, since either constitutes a legitimate authority in accordance with the principle of consent of the governed.
In the conclusion of the Virginia Report of 1800, after defending the substance and mode of appeal of the Virginia Resolutions, Madison reminded his readers – members of the Founding generation of Americans – that during the debates over the ratification of the Constitution, there were many who feared that liberty was at risk in establishing a general government over such a large extent of territory. At that time, the supporters of the new Constitution claimed that the state governments would serve as intermediate bodies between the central government and the people, that they would manifest vigilance and be on guard to “descry the first symptoms of [national] usurpation,” and with a “promptitude[,]…they would sound the alarm to the public.”
According to James Madison, the sovereign people of America did not create a confederacy of sovereign states nor did they create a unitary national government. Instead, they thoughtfully and very deliberately created a compound federal republican polity. Those who would deny the compound nature of our partly federal, partly national political system would necessarily convert it into one wholly federal or wholly consolidated. All who are friends of free government, Madison pleaded, must see that this is tantamount to aiming “a deadly blow at the last hope of true liberty on the face of the Earth.”
*This essay relies in part on the author’s study of Madison in James Madison and the Spirit of Republican Self-Government (Cambridge University Press, 2009). http://www.cambridge.org/us/knowledge/isbn/item1165234/James-Madison-and-the-Spirit-of-Republican-Self-Government/?site_locale=en_USThe Federalist # 44, written by James Madison, in Alexander Hamilton, James Madison, and John Jay, The Federalist Papers, Clinton Rossiter, ed; Charles R. Kesler, notes and intro. (New York: Mentor Books,  1999). Hereafter cited FP. In FP #26, Alexander Hamilton used exactly the same language. See also FP #46 and the role of the state legislatures in counteracting usurpations of power for the central government.