The Nullifiers

Posted in: Jefferson Today, Thomas Jefferson

Guesty commentary

...it is important to strengthen the State governments; and as this cannot be done by any change in the Federal Constitution (for the preservation of that is all we need contend for), it must be done by the States themselves... --Thomas Jefferson to Archibald Stuart, December 23, 1791

The curious current trend among a particular group of state officials to invoke Jeffersonian “states’ rights” principles to “nullify” federal laws with which they disagree would be amusing for its sheer misguided quaintness if it was not such a rank misuse of Jefferson’s fundamental hopes for the U.S. Constitution and his vision of the relation of the states to it.

Jefferson’s brief infatuation with nullification was ignited by what he saw as a dagger to the very heart of the young republican government: The Alien and Sedition Acts.  To Jefferson, the acts were rank violations of the rights of individuals and of individual states.  They appeared as a “rod of iron” that must be “arrested at the threshold” before corrupted Federalists could destroy the fragile constitutional foundation of the young republic and reconstruct on its ruins a despotic monarchy with themselves at the helm.  Jefferson’s response, with James Madison’s help, was to call on the people of Kentucky and Virginia in 1798 to rise up against a national government that had clearly forfeited its legitimacy by threatening its fundamental constitutional forms.  Jefferson therefore saw nullification as the best way to reestablish the “beautiful equilibrium on which our constitution is founded” by restoring some semblance of balance in the complex system of interlocking levels of government that American state-builders concocted in 1787.

Modern would-be nullifiers appear to stand on less certain historical footing.  Officials such as Georgia’s insurance commissioner, a Republican who just happens to be in the midst of a race for governor, base their arguments on articulated opposition to the expansion of federal power and the prospective financial commitment of states to provide health care for their citizens.  Leaving aside Jefferson’s insistence that health is a more “desirable” and “lovely” possession than even knowledge, the arguments proffered by today’s states’ rights advocates–which seem to be based primarily on a distasteful blend of bureaucratic inconvenience and partisan posturing–hardly rise to the standard set by Jefferson in the Kentucky Resolutions.  To Jefferson, nullification was a resolutely necessary means of redeeming and defending America’s experiment in a republican empire of liberty, rather than a way to gain short-term political advantage and sidestep the cost of caring for the health of fellow citizens.  Far from being the heirs to Jefferson’s constitutional principles, the new nullifiers seem more like apostates from them.

Taylor Stoermer is an Invited Research Scholar at the John Carter Brown Library at Brown University.

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says

(#3.) - "And to preserve their independence, we must not let our rulers load us with perpetual debt. We must make our election between economy and liberty, or profusion and servitude.

****If we run into such debts, as that we must be taxed in our meat and in our drink, in our necessaries and our comforts, in our labors and our amusements, for our callings and our creeds, as the people of England are, our people, like them, must come to labor sixteen hours in the twenty-four, give the earnings of fifteen of these to the government for their debts and daily expenses; and the sixteenth being insufficient to afford us bread, we must live, as they now do, on oatmeal and potatoes; have no time to think, no means of calling the mismanagers to account; but be glad to obtain subsistence by hiring ourselves to rivet their chains on the necks of our fellow-sufferers.

****Our landholders, too, like theirs, retaining indeed the title and stewardship of estates called theirs, but held really in trust for the treasury, must wander, like theirs, in foreign countries, and be contented with penury, obscurity, exile, and the glory of the nation.

****This example reads to us the salutary lesson, that private fortunes are destroyed by public as well as by private extravagance. And this is the tendency of all human governments.

****A departure from principle in one instance becomes a precedent for a second; that second for a third; and so on, till the bulk of the society is reduced to be mere automatons of misery, and to have no sensibilities left but for sinning and suffering.

****Then begins, indeed, the bellum omnium in omnia, which some philosophers observing to be so general in this world, have mistaken it for the natural, instead of the abusive state of man.

****And the fore horse of this frightful team is public debt.

****Taxation follows that, and in its train wretchedness and oppression."

THOMAS JEFFERSON to SAMUEL KERCHEVAL (Monticello - July 12, 1816)
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says

With all due respect, Sir, you seem to be unaware of the fact that Thomas Jefferson RE-ARTICULATED HIS SUPPORT FOR NULLIFICATION SIX MONTHS PRIOR TO HIS DEATH. Furthermore, he was FUNDAMENTALLY OPPOSED to FEDERAL INTRUSIONS into the DOMESTIC AFFAIRS of the STATES. He would be opposed to ANY SOCIALIZED MEDICINE SCHEME.

Below is an excerpt from the Kentucky Resolution of 1798 written by Thomas Jefferson on behalf of the Kentucky Legislature, followed by "The solemn Declaration and Protest of the Commonwealth of Virginia, on the Principles of the Constitution of the United States of America, and on the violations of them," written by Jefferson on behalf of the Virginia Assembly in December of 1825 in Thomas Jefferson's hand, six months prior to the death. Pay close attention to the 1825 writing, because Jefferson outlines when it would be appropriate for Virginia to leave the Union…see "but there

(#3.) - "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 foederis) to nullify of their own authority all assumptions of power by others within their limits.

***Without this right they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them."

THOMAS JEFFERSON (November 16, 1798) - KENTUCKY RESOLUTION w/ Transcription. http://memory.loc.gov/cgi-bin/ampage?collId=mtj1&fileName=mtj1page021.db...
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"Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy…"
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TRANSCRIPT: http://press-pubs.uchicago.edu/founders/documents/v1ch8s41.html
http://avalon.law.yale.edu/18th_century/kenres.asp

["VIRGINIA GENERAL ASSEMBLY, 1825, DECLARATION and PROTEST of U. S. CONSTITUTION in THOMAS JEFFERSON'S HAND"]

(#3.) - The States in North America which confederated to establish their independence of the government of Great Britain, of which Virginia was one, became, on that acquisition, free and independent States, and as such, authorized to constitute governments, each for itself, in such form as it thought best.

****They entered into a compact, (which is called the Constitution of the United States of America,) by which they agreed to unite in a single government as to their relations with each other, and with foreign nations, and as to certain other articles particularly specified.

****They retained at the same time, each to itself, the other rights of independent government, comprehending mainly their domestic interests.

****For the administration of their federal branch, they agreed to appoint, in conjunction, a distinct set of functionaries, legislative, executive, and judiciary, in the manner settled in that compact: while to each, severally, and of course, remained its original right of appointing, each for itself, a separate set of functionaries, legislative, executive, and judiciary, also, for administering the domestic branch of their respective governments.

These two sets of officers, each independent of the other, constitute thus a whole of government, for each State separately; the powers ascribed to the one, as specifically made federal, exercised over the whole, the residuary powers, retained to the other, exercisable exclusively over its particular State, foreign herein, each to the others, as they were before the original compact.

***To this construction of government and distribution of its powers, the Commonwealth of Virginia does religiously and affectionately adhere, opposing, with equal fidelity and firmness, the usurpation of either set of functionaries on the rightful powers of the other.

****But the federal branch has assumed in some cases, and claimed in others, a right of enlarging its own powers by constructions, inferences, and indefinite deductions from those directly given, which this assembly does declare to be usurpations of the powers retained to the independent branches, mere interpolations into the compact, and direct infractions of it…

****This assembly does further disavow and declare to be most false and unfounded, the doctrine that the compact, in authorizing its federal branch to lay and collect taxes, duties, imposts and excises to pay the debts and provide for the common defence and general welfare of the United States, has given them thereby a power to do whatever they may think, or pretend, would promote the general welfare, which construction would make that, of itself, a complete government, without limitation of powers; but that the plain sense and obvious meaning were, that they might levy the taxes necessary to provide for the general welfare, by the various acts of power therein specified and delegated to them, and by no others.

****Nor is it admitted, as has been said, that the people of these States, by not investing their federal branch with all the means of bettering their condition, have denied to themselves any which may effect that purpose; since, in the distribution of these means they have given to that branch those which belong to its department, and to the States have reserved separately the residue which belong to them separately.

And thus by the organization of the two branches taken together, have completely secured the first object of human association, the full improvement of their condition, and reserved to themselves all the faculties of multiplying their own blessings.

****Whilst the General Assembly thus declares the rights retained by the States, rights which they have never yielded, and which this State will never voluntarily yield, they do not mean to raise the banner of disaffection, or of separation from their sister States, co-parties with themselves to this compact.

They know and value too highly the blessings of their Union as to foreign nations and questions arising among themselves, to consider every infraction as to be met by actual resistance.

They respect too affectionately the opinions of those possessing the same rights under the same instrument, to make every difference of construction a ground of immediate rupture.

(#3.) - "They would, indeed, consider such a rupture as among the greatest calamities which could befall them; but not the greatest.

***There is yet one greater, submission to a government of unlimited powers.

***It is only when the hope of avoiding this shall become absolutely desperate, that further forebearance could not be indulged.

***Should a majority of the co-parties, therefore, contrary to the expectation and hope of this assembly, prefer, at this time, acquiescence in these assumptions of power by the federal member of the government, we will be patient and suffer much, under the confidence that time, ere it be too late, will prove to them also the bitter consequences in which that usurpation will involve us all.

***In the meanwhile, we will breast with them, rather than separate from them, every misfortune, save that only of living under a government of unlimited powers.

***And these are the objects of this Declaration and Protest.

***Supposing then, that it might be for the good of the whole, as some of its co-States seem to think, that the power of making roads and canals should be added to those directly given to the federal branch, as more likely to be systematically and beneficially directed, than by the independent action of the several States, this commonwealth, from respect to these opinions, and a desire of conciliation with its co-States, will consent, in concurrence with them, to make this addition, provided it be done regularly by an amendment of the compact, in the way established by that instrument, and provided also, it be sufficiently guarded against abuses, compromises, and corrupt practices, not only of possible, but of probable occurrence.

****And as a further pledge of the sincere and cordial attachment of this commonwealth to the union of the whole, so far as has been consented to by the compact called "The Constitution of the United States of America," (constructed according to the plain and ordinary meaning of its language, to the common intendment of the time, and of those who framed it;) to give also to all parties and authorities, time for reflection and for consideration, whether, under a temperate view of the possible consequences, and especially of the constant obstructions which an equivocal majority must ever expect to meet, they will still prefer the assumption of this power rather than its acceptance from the free will of their constituents;

****and to preserve peace in the meanwhile, we proceed to make it the duty of our citizens, until the legislature shall otherwise and ultimately decide, to acquiesce under those acts of the federal branch of our government which we have declared to be usurpations, and against which, in point of right, we do protest as null and void, and never to be quoted as precedents of right.

****We therefore do enact, and be it enacted by the General Assembly of Virginia, that all citizens of this commonwealth, and persons and authorities within the same, shall pay full obedience at all times to the acts which may be passed by the Congress of the United States, the object of which shall be the construction of post roads, making canals of navigation, and maintaining the same in any part of the United States, in like manner as if said acts were, totidem verbis, passed by the legislature of this commonwealth."

THOMAS JEFFERSON. Virginia General Assembly, 1825, Declaration and Protest of U. S. Constitution, in Thomas Jefferson's Hand, a.k.a. Draft Declaration and Protest of Virginia 1825 on the Principles of the Constitution of the United States of America, and on the Violations of them
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"…we do protest as null and void, and never to be quoted as precedents of right…"
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TRANSCRIPT: http://avalon.law.yale.edu/19th_century/jeffdec1.asp
http://etext.lib.virginia.edu/etcbin/foleyx-browse?id=n528

says

Fascinating topic. Thank you. Jefferson clearly favored results and practicalities over his interpretation of the Constitution. Arguably his greatest achievement as President, the Louisiana Purchase, was in direct violation of his definition of federal power and authority.

says

I think that the terms "States Rights" and "strict construction[ist]" are so politically charged that their use almost always indicates an intent to paint conservatives in a negative light.

"States rights" is so closely associated with slavery that its use today is often calculated to denigrate the character of anyone who adopts the Constitutional premise that the authority of the Federal Government is limited to those powers as enumerated in the document, with all residual powers reserved to the people as elucidated by the Tenth Amendment which states; "The powers not delegated to the United States by the Constitution nor prohibited by it to the States are reserved to the States respectively, or to the people."

As such, I view the unqualified use of the term, as an insinuative ad hominem.

Although the term "strict constructionist" isn't quite as pejorative, it does suggest that those using it consider antediluvian, anyone who agrees with Jefferson's premise that the Constitution was put in writing in order to corral the congress [and presumably also the judiciary, bound to apply its terms fairly and impartially-regardless of the outcome] in order to protect from the dangers of unfettered legislative, executive, prosecutorial and judicial discretion.

says

When referring to Jefferson’s “strict constructionist” streak, don’t overlook the fact that he couldn’t find Constitutional justification for the Louisiana Purchase. National security, expediency and opportunism eventually trumped his reservations. The Constitution was important, but so were the British, French and Spanish guns.

I don’t know how he would’ve felt about a national health scheme, but I suspect he, himself, wouldn’t know, either. We overlook his pragmatism while uncreatively (anachronistically) trying to ascribe his words to one or other pole of contemporary politics. To inveigh against the recent health care legislation through Jefferson is, at best, another right/left muddling of history that entirely dismisses the ambiguity of his time, and ours.

says

Do you really believe that Jefferson himself was not seen as a practitioner of “partisan posturing” when he authored the Kentucky Resolutions? Of course he was. The Federalists who had passed the Sedition Act argued that it was Constitutional- in spite of its manifest violation of the Bill of Rights- just as the proponents of present usurpations spin weak rationalizations in “constitutional” defense of a bill which operates so plainly and so drastically outside the realm of legitimate constitutional authority as to put the lie to this argument the instant it is made.

Jefferson’s vociferous opposition was very much “partisan” in the context of the political spectrum in which he operated, and this in no sense rendered it illegitimate, just as the similar outcry taking place as we speak is not somehow delegitimized by the fact that it arises largely from one end of our own, at least as it is perceived.

To address the specific issue of healthcare from a Jeffersonian vantage point:
1. The fact that Jefferson extolled the importance of good health utterly fails as an argument that he was amenable to government take-overs of the medical industry; the principle underlying this suggestion is patently absurd and thoroughly un-Jeffersonian. Jefferson certainly believed, for instance, that farming and growing crops was a good and crucial matter of import, yet he wrote that “Were we directed from Washington when to sow and when to reap, we should soon want (for) bread.”
2. The healthcare bill which has recently passed is utterly unreconcilable with any Jeffersonian reading of the Constitution; Jefferson was a strict constructionist who went so far as to argue that the Federal government could not, for example, establish a national bank or construct roads or canals without a constitutional amendment. Declaring their authoritarian control over nigh a fifth of the US economy in an industry never so much as mentioned in the Constitution is an act so far outside the realm of their valid power as Jefferson (rightly) understood it that I might fear for his health were the news sprung on him suddenly.
3. Jefferson actually did address a particular healthcare issue during his presidency, in 1805, during a wave of fever spreading from Europe. Jefferson’s policy was that the Federal government, given its power over foreign relations, borders and what-have-you, could verify the state of those who sailed into the country, but that any government action regarding the fever in the internal United States was left up to “state officials charged with the care of the public health”- another example of Jefferson\’s strong support for states’ rights, regardless of the repugnance the idea might carry for pseudo-Jeffersonians 200 years later.

says

By the way it is full time for ‘progressives’ to reclaim their heritage thru Jefferson and The USA Constitution instead of leaving it as a kind of fiefdom for the right and supporters of Corporate and other factional power??? Does anybody see eye to eye with me on this :) ?

says

Well said Taylor, good to see balanced and intelligent commentary on this one. Really shows where research in the humanities can be of use; well done.

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