Sunday, August 1, 2010

Jefferson and Madison on Secession and Nullification

There is far too much chatter today among far too many people advocating either secession or nullification regarding the protest of an overreaching federal government. I share the frustration, and the temptation to just tell them to pound sand feels good. However, if we actually played either of those cards it would end our Republic, it would destroy that which we claim we treasure our, Constitution, our very free and independent Republic. Either nullification or secession would create anarchy. It is not Constitutional no matter what anyone tells you, no where will you find any such provision.

This is the story where these ideas first came up, where those who try to spin this story as proof that it was part of the founder's Constitution. Even as you read this you will learn that those players were working to make political hay, and even Jefferson who was pushing the envelope said he was totally against the idea of secession. At least learn the history.

When the Federalist's during the John Adams administration passed the Alien and Sedition Acts, it created a firestorm with the Republican Party led by Thomas Jefferson, Adams's Vice President.

Jefferson with his ally James Madison, the author of the United States Constitution and co-leader of the Republican Party developed their party's strategy. Jefferson drafted resolutions boldly claiming the constitutional authority of the individual states to declare the Alien and Sedition Acts not only unconstitutional but null and void.

In his original draft of what became the Kentucky Resolutions, Jefferson began with the unexpected proposition that the states in the union were not obligated to give blind obeisance to the federal government. He followed that initial statement with the critical constitutional premise that the union was a compact among the individual states.

Under the compact, the federal government was assigned certain explicit powers; all other government authority necessarily remained with the states. Because the constitution was derived from the compact among the states, Jefferson concluded that each state retained the right to judge for itself whether an act of Congress was unconstitutional. When an act of Congress was unconstitutional, as Jefferson believed the Alien and Sedition Acts were, redress was left for the states.

The states, through their elected representatives in Congress, could of course, fight for the repeal of unconstitutional legislation. But, as Jefferson well knew, repeal of the Alien and Sedition Acts was unlikely in the Federalist-controlled Congress. As an alternative to congressional repeal, Jefferson claimed that the individual states could declare the Alien and Sedition Acts unconstitutional and null and void.

Jefferson wrote that, "where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy; every state has a natural right in cases not within the compact, to nullify of their own authority all assumptions of powers by others within their limits." Although his resolutions were drafted for a single state legislature, Jefferson invited others states to "concur in declaring these acts void and of no force" and to prohibit the application of any other legislation "not plainly and intentionally authorized by the Constitution" within their respective states.

Jefferson gave the draft to his neighbor and confidant, Wilson Cary Nicholas, who passed it on to John Breckinridge, a Kentucky legislator and loyal Republican. Both men were sworn to secrecy in protecting Jefferson's identity as the author. By the time the Kentucky legislature passed the resolutions in revised form on November 10th, Jefferson's most controversial proposal, that Kentucky act upon the declaration that the Alien and Sedition laws were null and void, was eliminated. Significantly, the Kentucky legislature's relatively moderate remedy was to work with other states assemblies for the repeal of the Alien and Sedition Acts.

Madison's companion resolutions passed by the Virginia legislature in December did not contain Jefferson's provisions justifying a declaration by the state that the federal legislation was null and void. Madison, in fact, disagreed with Jefferson on that critical point as well as the exact nature of the constitutional compact. Of course Madison disagreed with much of Jefferson's ideas on the Constitution, he hid Jefferson's beliefs that each generation should have a revolution every twenty years, that no generation should be forced to live under the rules set forth by the previous generation for years to protect Jefferson from scorn.

Madison conceded that states joined together to form the union, but he was not convinced, as Jefferson was, that the Constitution allowed a state to declare an act of Congress null and void. He was not even certain that a state was the ultimate judge of the constitutionality of a congressional act, nor did he demand that the states redress what he considered an unconstitutional act. Madison's Virginia Resolutions called for congressional repeal of the Alien and Sedition Acts.

In preparing the Republican response to the Alien and Sedition Acts, Jefferson had, characteristically, worked simultaneously on two distinct levels; the philosophical and the pragmatic. At the theoretical level, Jefferson could proclaim the most radical constitutional position, as he did in his original resolutions.

Taken literally, such a state's rights position justified the most extreme political measures, even secession. However, Jefferson strongly opposed any secessionist movement, calming distraught colleagues such as another state's rights advocate, Virginia's John Taylor, who had raised the possibility of Virginia's and North Carolina's withdrawing from the union in 1798.

Admitting that the crisis was serious, Jefferson nonetheless told Taylor, "In every free and deliberating society, there must, from the nature of man, be opposite parties and violent dissensions and discords; and one of these for the most part, must prevail over the other for a longer or shorter time. Perhaps this party division is necessary to induce each to watch and relate to the people the proceedings of the others." Jefferson concluded his letter to Taylor optimistically: "A little patience, and we shall see the reign of witches pass over, their spells dissolved, and the people recovering their true sight, restoring the government to it's true principles."

It is these resolutions by Jefferson that gave credence to a constitutional claim, highly controversial in 1798 and yet two centuries since, that the states through their legislatures, possessed a sovereignty under the Constitution comparable in scope and authority to that of the federal government.

However, when reviewing the words of Madison, the Father of the Constitution, and even the words of the most radical Jefferson, neither believed for a moment that secession was a constitutional option.