The following is a summary of a speech delivered on 19 Oct., 2013 to the Tenth Amendment center’s Nullify Now Conference in Raleigh, NC, ©2013 Mike Church
You have probably all read the Kentucky and Virginia Resolves, and most people think that is the beginning and end of the story, but like most great epics in history there is always a backstory that is equally important. In the case of nullification and interposition the backstory is that the inspiration for the resolves did not come from a brainstorming session between Jefferson, Taylor, and Madison. The inspiration actually came from the citizens of Fredericksburg, Virginia.
Our story begins in May of 1798. The Adams administration was agitating to pick a fight with the French. At this juncture, this comes as no surprise since Adams’s cabinet was filled with the 1798 equivalent of John Bolton, John McCain, and Dick Cheney in the persons of James McHenry, Oliver Wolcott, and Timothy Pickering. The alien law that was first proposed in the Senate was so vicious that even Hamilton was appalled.
The Sedition Act made it felonious and punishable with a fine of $5000, and five years’ imprisonment, for persons to combine in order to impede the operation of any law of the United States, or to intimidate persons from taking federal office, or to commit or advise a riot, or insurrection, or unlawful assembly. It also declared that the writing or publishing of any scandalous, malicious, or false statement against the President, or either house of Congress, should be punishable by a fine of $2000 and imprisonment for two years.[1]
While the great, great, great, great, great, great, great grandparents of George W. Bush and Nancy Pelosi worked on toning down their sedition act, Thomas Jefferson got wind of what was going on. Writing to Madison on April 28, 1798, Jefferson spells out what he thinks is going on:
Parker is completely gone over to the war party. In this state of things they will carry what they please. One of the war party, in a fit of unguarded passion, declared some time ago they would pass a citizen bill, an alien bill, & a sedition bill; accordingly, some days ago, Coit laid a motion on the table of the H of R for modifying the citizen law. Their threats point at Gallatin, & it is believed they will endeavor to reach him by this bill.[2]
To illustrate how perverted this whole chain of events is, Jefferson is referring to Albert Gallatin, quite possibly the most patriotic immigrant of all time.[3] Gallatin was elected to the Senate, kicked out because he was allegedly not naturalized long enough, elected to Congress, and while there pioneered with James Madison the art of withholding the purse from acts of Congress passed without his approval. He was the longest serving secretary of the treasury, and he hated Hamilton. Need I say more? So, this is who Jefferson thinks Adams wants to make an example of; now back to Jefferson.
Yesterday Mr. Hillhouse laid on the table of the Senate a motion for giving power to send away suspected aliens. This is understood to be meant for Volney & Collot. But it will not stop there when it gets into a course of execution. There is now only wanting, to accomplish the whole declaration before mentioned, a sedition bill, which we shall certainly soon see proposed. The object of that, is the suppression of the Whig presses…if these papers fall,[r]epublicanism will be entirely brow beaten.[4]
Note that Jefferson used the term “republican” with a lower caser.
Jefferson was not the only person alarmed at what the Adams administration and the Sixth Congress are doing. Word of their tyranny, and this is what alarmed citizens called it, “tyranny,” spread back to Virginia faster than an ObamaCare website shutdown—and remember that the capitol was in New York back then. What happened next is probably only known to the most prolific historian of Fredericksburg, Virginia, S. J. Quinn. The freemen of Fredericksburg, hearing Jefferson’s alarm, sprang into action, as recorded in The Virginia Herald:
On Monday the citizens of this corporation met, agreeably to notification published in the public papers, to express their sentiments on the present important and critical situation of this country. The meeting was called by the friends of the Executive, whose object was to address the President of the United States and to express their entire approbation of his conduct with respect to our foreign relations. An address to this effect was prepared and presented by Thomas E. Bootes, Esq., which he supported by very lengthy arguments. He was followed by Capt. John Mercer, Col. John Minor and Col. John F. Mercer, who successfully combatted the various arguments adduced by Mr. Bootes in support of his address. And the following resolutions then, prepared by Dr. David C. Ker, were approved and adopted. A division was called for on the address and resolutions and tellers appointed to take the number of votes, who reported that two-thirds of the citizens present were in favor of the resolutions. The meeting was more numerous than any we have ever seen in this place. During the whole of the discussion the most perfect order and decorum prevailed.[5]
Let’s recap, the meeting was called so that the local “John Adams fan club” could honor their hero, but he was no longer a hero to the [r]epublicans of Fredericksburg. In place of a certificate of gratitude being drafted and signed to be sent to Adams, six resolutions serving him a notice of warning were written. Now these are not your garden-variety resolves, and they do not sound like they were written by current Speaker of the House John Boehner or his majority leader, Eric Cantor.
1. Resolved, As the opinion of this meeting that the administration of these States received the government of a happy and united people, in peace abroad and prosperity at home; that under their guidance, we have been led, oppressed with public, heavy debts, enormous taxes, a ruined commerce and depreciated produce, into hostility with a nation who aided to secure our independence by their own blood and treasure, with a republic the most powerful and successful that has appeared on earth for eighteen centuries, armed with every weapon to injure us, but whom we can in no wise injure; with a republic united with a confederacy so extensive as to separate us from all the civilized world but Britain, and her dependencies; that they have done this, not through ignorance and folly only, for they were at all times warned of the certain consequence of their measures; not through constraint, for although opposed, they always carried their measures; but men who have proved themselves by their own works, so unfit to govern us, even with every advantage, can never without madness be trusted in times of real difficulty and extreme danger; and that it is equally absurd to found confidence in our disasters, or to pursue that line, or to support those men who have already brought us to the verge of destruction.[6]
Brought them to “the verge of destruction,” those are very ominous words, especially considering that Lincoln isn’t even born yet! Let us look at the next three resolutions:
2nd. Resolved, That the speech of the President of the United States to the ordinary session of Congress, was, in the opinion of this meeting, calculated to rouse the resentment of the French government and destroy any reasonable hope of successful negotiations between that republic and agents appointed by him.3rd. Resolved, That the instructions to our envoys, so contrary to the spirit of that speech and the whole conduct of our administration, authorize this conclusion : — that they were rather intended to inflame the American mind than to produce good in France, under the well grounded expectation, that the negotiations would, from those and other causes, fail.4th. Resolved, That the late negotiations with unauthorized swindlers in Paris, are so unexampled as to afford no justifiable ground for public measures, and that their publication, so far as they tend to excite the sensibility of our citizens, is unjustifiable, as they may commit the safety of the envoys highly imprudent.[7]
Not content to just complain to the Adams administration, send a couple of mass “carrier pigeon” letters (the eighteenth-century equivalent of a mass mailing), or paint a few posterboards to bring to a Sarah Palin rally, the citizens of Fredericksburg, Virginia, served notice that they would not stand for what Adams was about to do, even if that meant…well, read it for yourself.
5th. Resolved, That the militia are the only safe and constitutional defence of these States; that they alone are adequate to this object, and that they will ever prove so, if guided by good government.6th. Resolved, That we hold it to be our bounden duty, and we do solemnly pledge ourselves, firmly, to support our National rights and independence whenever assailed by foreign invasion ordomestic usurpation.[8]
Here we are, a mere nine years from when the Constitution was ratified and already the Federal Leviathan is, in the view of the citizens of Fredericksburg, Virginia, out of control. And we thinkwe have it bad!? The story concludes in the Virginia Herald, as summarized by Quinn, with the upshot of our discourse today: the citizens of Virginia inspired nullification to address an abuse of their Constitution.
Fontaine Maury was chairman of this large gathering of the people and signed the resolutions adopted by the meeting. They were then sent to Hon. John Dawson, representative in Congress from this district, who laid them before the extra session of Congress for the consideration of that body. These resolutions, adopted on the 14th of May, 1798, setting forth the principles upon which their authors believed the Union was founded, and upon which the government should be administered, were the basis for the famous resolutions drawn by Mr. Madison and passed by the Virginia Legislature on the 2nd of December of the same year, which have since been the theme of Virginia Statesmen of that school when they would “revert to first principles.”
Note that this meeting’s impact was felt by Jefferson, Madison, et al., as they prepared the Virginia Resolutions on Nullification, knowing that the sentiments of the Old Dominion’s citizens were in their favor. This is a very important point, because it allows us a lot more latitude in discussing nullification as not just Jefferson’s “rightful remedy” but as what was commonly accepted by the people as a rightful remedy. Of course, if you listen to anyone in media—other than Tom Woods and me—when you hear “nullification,” you are almost always going to hear whose name next? Calhoun. Then, we can talk about plantations and slave ships and plantations and slaves and do not forget there were those slaves and…you get the picture from watching MSNBC that nullification equals slavery. But Calhoun was only parroting what, as a great student of history, he had learned from his masters: Jefferson, Madison, and Taylor; and that is where the final part of our story leads, to John Taylor of Caroline County. But first I will setup the timeline for the bigevents coming in December of 1798.
On June 21, Jefferson wrote his last letter of the summer to James Madison, explaining what is going on inside the Adams administration. Jefferson warned Madison of a gathering in Congress “of war hawks” who are “to keep up the inflammation of the public mind.”[9] Jefferson mentioned the trouble brewing at the newspaper run by Ben Franklin’s grandson, Benjamin Franklin Bache. Bache was one of the first men jailed under the Alien and Sedition Acts. Bear in mind that Jefferson was then presiding over the Senate as vice president of the United States. Jefferson then told Madison he was bolting from Philadelphia the nanosecond the Senate adjourned. To put Madison and Jefferson’s correspondence in perspective, the letter I am referencing was the twenty-first missive written to Madison in 1798, so it is fair to say that the two men were “pen pals,” but after this note, no more. There was, to use a military term, “radio silence” until near the year’s end. As a matter of fact, Jefferson did not write anyone, save for official correspondence that he had to perform.
On November 26, the silence was broken when Jefferson wrote to John Taylor. As we shall see, that letter is ominous.[10] In my docudrama “What Lincoln Killed-EPISODE I,”[11] I stitch together what I think might have happened between our three heroes in the fateful summer of 1798, though we will never know for certain. Knowing that the mail was being monitored, that printers and citizens were being locked up for challenging the Alien and Sedition Acts, the men met in secret in July and August to lay out their plan: The Virginia and Kentucky Resolutions for Nullification and Interposition. We now know that Jefferson would write the Kentucky resolves and Madison the Virginia resolves.[12] Folks were busy in Kentucky as well; and just as we saw in Fredericksburg, there were town-hall meetings that produced resolves in several counties including Clark County. A meeting on August 13 in Lexington is said to have been attended by thousands of Kentuckians who wished their legislature to take their resolves to the assembly and “give such solemnity to the voice of the people, as will arrest the attention of our infatuated Rulers.”[13]
Sometime in early October, Jefferson wrote two drafts of his “Kentucky Resolves” and in the eighth resolve we find the reason for this meeting today.
Sec 8. Resolved…that [Kentucky] considers union, for specified national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness and prosperity of all the states…that it does also believe that to take from the states all the powers of self-government, & transfer them to a general & consolidated government, without regard to the special delegations & reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these states: and that therefore this commonwealth is determined, as it doubts not it’s costates are, to submit to un-delegated & consequently unlimited powers in no man, or body of men on earth: 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 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…[14]
On November 10, 1798, the Kentucky Assembly did in fact adopt these resolves, but not until they had added their own language and, unfortunately for us, subtracted some as well. Notably missing from the eighth resolve is the word “nullification.” The Kentucky Resolves instead opted for a request to the other states of the union to “…recur to their natural right in cases not made federal, will concur in declaring these acts void and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.”[15] This has been seized upon as some kind of proof that Jefferson never meant to use the term “nullify,” which amounts to a semantic argument since the legal statement Jefferson made is identical, the unconstitutional laws are “void and of no force.”
Back to Virginia and Jefferson’s letter to Taylor. In what amounts to a Vince Lombardian pep-talk before Taylor delivers the Virginia Resolves to that state’s House of Delegates meeting, which was to convene in a mere six days, Jefferson wrote:
For the present, I should be for resolving the alien & sedition laws to be against the constitution & merely void, and for addressing the other States to obtain similar declarations; and I would not do anything at this moment which should commit us further, but reserve ourselves to shape our future measures or no measures, by the events which may happen. It is a singular phenomenon, that while our State governments are the very best in the world, without exception or comparison, our general government has, in the rapid course of 9 or 10 years, become more arbitrary, and has swallowed more of the public liberty than even that of England. I enclose you a column, cut out of a London paper, to show you that the English, though charmed with our making their enemies our enemies, yet blush and weep over our sedition law.[16]
So the Alien and Sedition Acts were so wicked that even the formerly despotic English would have been embarrassed to have passed them. The Virginia House of Delegates convened in the first week of December, 1798, and on Thursday, December 13, John Taylor’s moment had arrived. The House resolved itself into a committee of the whole and then Taylor, after delivering his resolves, which were mostly the work of Madison, presented the argument of “interposition.” It would be unfair to the brilliance of this speech to represent it in a few quotations, and I encourage everyone to read it entirely, but in the interest of time I will walk you through the brilliant reasoning which builds an airtight case for every state’s legislature to nullify or interpose against unconstitutional acts. Taylor began by saying that his appearance at the meeting was not a happy one but “an awful” occasion that no one ever wanted to see occur, however the time had come and thus they must act. He began by laying out his case: “There are two subjects I shall contemplate by the resolutions I have laid before you. One, the constitutionality of the laws referred to in the resolutions, and Two their correspondence with human rights, natural and civil.”[17] Taylor then told the history of how “alien friends” (who were foreign nationals) had been treated under English Common Law and in the colonies; he then concluded that the power to admit them had always been in the state’s control. Here was where Taylor’s first argument turned into genius.
Suppose gentlemen that government (which is never an enemy to power) should strengthen its hands by corruption, by patronage, by standing armies, by a system of fears? Now I am not saying that our government had done so, but in case, a government should do so. Now suppose that such a case had occurred. That this body of emigrants had made their way into our midst. That we welcomed them and even cared for them thus made them dependent upon government. Would it be a proper instrument to place in the hands of the executive, the President if you will, to have control over these actions toward aliens? The men in this body know all too well that executive power is the greatest enemy to our cherished republican principles. If you agree with that and follow my reasoning, would any man in this body assert that to strengthen executive power in this way, wholly unforeseen by those who formed the Constitution, so as to extend beyond their intention, could be agreeable to the Constitution!? Are not those cherished republican principles the great end of the Constitution? So if you agree that it would be dangerous and against our republican Constitution to grant the President the power to expel alien friends from the States then you are concurrently granting him the power to impel them and turn them against you in service to Him. If this so-called Alien Friends act confers the power in the former then it confers the power in the latter. If I have proved this law inimical to those principles, gentlemen then I have attained the great and alarming end to which I aimed.[18]
After this rhetorical genius, Taylor continued by discussing the normative problems with federal laws in question:
[Taylor] began his observations upon the second subject, by asking if those laws were correspondent with human rights? Those rights, he said, were, freedom of speech, freedom of person, a right to justice, and to a fair trial. If an alien possessed those rights, he asked, could he avail himself of them under the present law? Could a citizen, under the sedition law, exercise the freedom of speech, or of religion, which last, a few days before, he had heard called a social right? It was not so. It was either a natural duty, or a natural right. Was it possible that at this day, religious worship could be restrained by law? The right of opinion, he said, should be held sacred. It ought never to be given up in any one instance. Religion was only a branch of opinion. With what propriety could that range of thought, bestowed by the Creator upon the human mind, be controlled by law? He deemed it a sacrilege for government to undertake to regulate the mind of man. It was a subject by no means within its powers. What would be the consequence of such a measure? Universal ignorance amongst the people. He then asked, if ignorance was a desirable thing? He then proceeded to inquire whether those laws would increase executive influence, and concluded that they would. That they would by begetting fear. If public opinion were to be directed by government, by means of fines, penalties and punishments, on the one hand, and patronage on the other, public opinion itself would be made the stepping stone for usurpation. If Congress should undertake to regulate public opinion, they would be sure to regulate it so as to detach the people from the state governments, and attach them to the general government. But, he said, the most dangerous effect of those laws would be, the abolition of the right to examine public servants. To bring about such a measure as this, he said, it would be necessary for Congress, in the first place, to establish the point, that they were the masters, and not the servants, of the people. He said, government might do wrong. Could a criminal be ever brought to justice, who had a power to regulate the mode of his own examination? And is it not criminal in a government to oppress a people? If its acts were wrong, they would produce discontent: discontent was the only road to redress. But redress could never be obtained, because the sedition law prohibited the only mode of obtaining it, by punishing that very matter of exciting discontent. He asked what was despotism? He defined it to be, a concentration of powers in one man, or in a body of men. The manner of concentrating them was unimportant: the end was the same. Individuals and states were equally affected by such concentration of power. The concentration of it in an individual, would enslave other individuals; a concentration of it in Congress, would operate to the destruction of the state governments; and that, if the balance of power which the state governments ought to hold against Congress, were once lost, we must be precipitated into a revolution. Revolution will lead to civil war. To prove which, he asked what produced the war between Britain and America? Oppression. What produced the revolution of France? Oppression. What produced the revolt of the United Provinces from Spain? Oppression. He said, the way to keep a nation quiet, was to make it happy: that oppression goaded it on to civil war. In justification of which opinion, he stated that the people of the United States were at this time under the pressure of certain grievances. The way then to stop civil war, would be to stop oppression. But, said gentlemen, we must not disunite. To this he would answer, remove oppression, and union would take place. He then concluded by saying, that our rights were the offspring of pangs and peril. Let them never then be wrested from us. It was the custom in some countries, for the prince to send for the first born child of every subject, to have him trained as a soldier for his army. In that case, could the distressed parent be assured that by surrendering his first-born, he would secure the rest? The first-born of American rights, was the free examination of public servants. Were we to surrender that, could we be certain that the rest would be secured? That these rights were the fruit of victory, and recompense of blood. We had defended them against the arms of Britain. Never then let us surrender them to the arts of sophistry and ambition.
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John Taylor is a tough act to follow but let me conclude, inspired by what we just read, with a bold statement about nullification and interposition that even Nancy Pelosi can endorse. The process of nullification makes the federal government stronger, because nullification chastens the government before it acts outside of its authority. It is, therefore, Jefferson’s “rightful remedy” and could become for us, Madison’s desideratum of “checks and balances.”
[1] See S. J. Quinn, The History of the City of Fredericksburg, Virginia (1908), http://www.gutenberg.org/files/41597/41597-h/41597-h.htm.
[2] Thomas Jefferson to James Madison, April 26, 1798,http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=805&chapter=87143&layout=html&Itemid=27. [emphasis added]
[3] See John Austin Stevens, preface to Albert Gallatin, American Statesman (1898), v. “But so wide was the general field of Mr. Gallatin’s career, so varied were his interests in all that pertained to humanity, philanthropy, and science, and so extensive were his relations with the leaders of European and American thought and action, that the subject could only be treated on the broadest basis. With this apology this study of one of the most interesting characters of American life is again commended to the indulgence of the American people.”
[4] Ibid. [emphasis added]
[5] History, 231.
[6] History, 232.
[7] Ibid., 233.
[8] Ibid. [emphasis added]
[9] See Thomas Jefferson to James Madison, June 21, 1798, inWorks of Thomas Jefferson, vol. 8 (G. E. Putnam & Sons, 1904). Also http://oll.libertyfund.org/?option=com_staticxt&staticfile=show.php%3Ftitle=805&chapter=87154&layout=html&Itemid=27.
[10] Ibid.
[11] See http://www.mikechurch.com/founders-tradin-post/audio/cd-sets/what-lincolnkilled-docudromedy-abraham-lincoln-like-youve-never-experienced-the-directorsedition/
[12] The Papers of Jefferson, Thomas, Vol. 30 (Princeton, NJ: Princeton University Press, 2003), p. 529?56. See:http://jeffersonpapers.princeton.edu/selected-documents/kentuckyresolutions-1798.
[13] Ibid.
[14] Ibid.
[15] Ibid.
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