Guest Essayist: Joerg Knipprath

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After the adoption of the Constitution, the next significant use of this compact theory occurred in the Virginia and Kentucky Resolutions of 1798/9, authored by James Madison and Thomas Jefferson, respectively, and triggered by the Adams Administration’s Sedition Act. These resolutions held that Congress had only limited and delegated powers. If Congress legislated beyond those powers, it invaded the reserved powers of the states and threatened to consolidate power in itself. Division of powers existed to protect the people’s rights against tyranny. A state government could, perhaps even must, then declare the unconstitutional nature of the Congressional action. Beyond that, matters got murky. The means of redress were left to each state. For Virginia, this included interposition of state authority between its citizens and Congressional usurpation of their rights. Whether this went beyond seeking political change by pressuring Congress to repeal the law or petitioning that body to call a constitutional convention under Article V of the Constitution, to actively using state executive authority to prevent enforcement of the federal law, was not discussed. Though it was implied, there was no clear assertion that the state’s action (by itself or in concurrence with others) outright nullified the offensive law. The more radical Jefferson, however, did allow that a state could nullify the offending federal law within its territory.

The 1798/9 Resolutions and the earlier debates on the Constitution featured prominently in subsequent national controversies. Similar expositions of the federal structure were used to justify the actions of New England Federalist Party politicians at the Hartford Convention in 1814 and the more radical ideas–such as secession–that were proposed there for future consideration.

Calhoun proposed his doctrine of state nullification of unconstitutional federal laws in his Exposition and Protest against the Tariff of 1828. In subsequent writings, such as his 1831 Fort Hill Address, he further developed and refined the constitutional foundation for nullification. At the same time, he also undertook to provide a constitutional basis to protect the rights of political minorities through his doctrine of “concurrent majorities.” Acts of government whose burdens fell heavily on a particular (geographical) minority had to be approved both by the national majority and that minority.

While Calhoun began with the same assumptions about the “compact nature” of the Constitution and the political structure which it comprised, he added some important refinements. Each part, the Union and the States, had their assigned powers. Neither could invade the powers of the other, as delegated to the former and generally reserved to the latter. The difficulty lay in resolving conflicts that might arise over their relationship. Interposition, as accepted in the Virginia and Kentucky Resolutions, and nullification, as asserted by Jefferson in the latter, were prerogatives retained by the States against constitutional usurpations by the general government. But those tools were forms of protest, not resolution of conflict. The general government, being a creature of the Constitution, could not, through its agents, sit as judge in its own cause.

Calhoun relied on that 18th-century American contribution to political theory, the constitutional convention, to supply the remedy. Sovereignty lay in the people, as both sides agreed. As shown by the process of the Constitution’s adoption in the 1780s, an ultimate act of political association–and, by analogy, disassociation–by the people of a state required their consent. Since nullification of a federal law placed the state on a path to secession, the people must approve that initial step.  It was not possible, as a practical matter, to gather the people as a whole to debate and decide the matter. Hence, the action had to be undertaken by a special body elected by them and assembled for only that purpose. Only if the convention voted to nullify the federal law might the state legislature enact an ordinance of nullification. If the proper process of nullification was completed, it was up to Congress to resolve the controversy by calling a convention under Article V of the Constitution. If that convention voted in agreement with the state, and the convention’s action was approved by three-fourths of the states, the federal law was nullified. If the nullification was not approved either by the convention or the other states, the original state might vote to rescind the nullification or move to secede.

Calhoun’s proposal was built on existing constitutional process in Article V. However, he cleverly extended its reach because Article V required two-thirds of the states to petition Congress for a convention, while Calhoun’s convention was precipitated by the action of a single state. On the other hand, Calhoun stopped well short of the most rigid states’ rights position that potentially would legitimize nullification of a federal law within a state by the action of that state alone. Enough other states still had to concur to satisfy Article V, which assured against frequent resort by states to such a destabilizing course. Calhoun struck a balance between the interests of “Liberty and Union” in a manner that sought to avoid the extreme confederationalism of the unconditional nullifiers and secessionists, on the one hand, and of the biased nationalism of Congress and the Supreme Court. The former, after all, had been rejected by the language of the Articles of Confederation, in the ratifying debates on the Constitution, and in the formal rejection by many states of the Virginia and Kentucky Resolutions. At the same time, neither the Congress–despite the structure of the Senate–acting politically, nor the Supreme Court, acting judicially to balance Congress’s powers under the Constitution with the Tenth Amendment, could be relied on as fair arbiters of national-state disputes.

Today, Calhoun’s approach lacks constitutional legitimacy, as do more radical theories of nullification and secession. Yet, one can detect more than a faint connection between the broad claims of earlier nullifiers and secessionists and what has sometimes been called the “neo-Confederate” position of California and other “sanctuary” cities and states regarding the harboring of aliens living in the United States in violation of immigration laws. But, as Calhoun and the earlier Antifederalists worried, the other constitutional protections against “consolidation” have proven inadequate to the task. The states can go, hat in hand, to plead their case politically to Congress or in litigation to the Supreme Court. But the Senate is, as often as not, a happy collaborator in expanding federal power at the expense of state autonomy. The Supreme Court, in turn, has declared the Tenth Amendment a mere “truism” and, excepting a few timid anomalies, appears content to strain constitutional language ever-more to extend the reach of federal power. Perhaps it was inevitable due to human nature and the inbuilt structural imperfections of the system, as the Antifederalists charged, or perhaps it is the result of the complexities of a massive modern industrial society, but today’s “federalism” is patently not the Founders’ declared vision.

An expert on constitutional law, and member of the Southwestern Law School faculty, Professor Joerg W. Knipprath has been interviewed by print and broadcast media on a number of related topics ranging from recent U.S. Supreme Court decisions to presidential succession. He has written opinion pieces and articles on business and securities law as well as constitutional issues, and has focused his more recent research on the effect of judicial review on the evolution of constitutional law. He has also spoken on business law and contemporary constitutional issues before professional and community forums, and serves as a Constituting America Fellow. Read more from Professor Knipprath at: http://www.tokenconservative.com/.

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