The Free Market 13, no. 6 (June 1995)
The cords that bind the Union together are weaker than they have been in more than a century. Many states are entering into political revolt against federal encroachment. But this situation is no departure from American tradition. Revolting against consolidated government has been a key to keeping the government in check.
The Founders themselves provided criteria by which to judge the proper occasion for action--both in terms of empirical precedent during the American Revolution, as well as in terms of written, theoretical discourse.
In 1785, for instance, while still under the Articles of Confederation, the United States abandoned the Jay-Gardoqui Treaty because of Western secessionist threats. The U.S. in negotiations had agreed to relinquish all navigational rights along the Mississippi in return for trade with Spain. This was beneficial to the eastern Atlantic seaboard, but it locked out Kentucky, Tennessee, western Virginia, and the West generally from market access of any appreciable kind.
The treaty would have devastated Western development and limited U.S. economic potential. Leaders like James Wilkinson and Daniel Boone threatened to fight for independence or unite with Spain before they would adhere to such an agreement. The Jay-Gardoqui treaty would have been bad for half the States, which is why it had to be defeated through a conditional secessionist drive.
When the Federalists exceeded Constitutional authority by passing the Alien and Sedition Acts in 1798, similar threats were made, this time while the nation operated under the rubric of the Constitution. The Sedition Act was especially repugnant, in that, it violated the First Amendment restriction on the federal government. Moreover, it was employed for blatantly partisan political purposes against Democratic-Republican editors, ten of whom were imprisoned for criticizing official government policy.
In response, Jefferson and Madison wrote the Virginia and Kentucky Resolves. They detailed a doctrine of dual sovereignty, by which state sovereignty is as inviolable as the federal government’s. Some historians have intimated that Jefferson and Madison, who were instrumental in the successful resistance to federal authority during the crisis, somehow wrote and said what they did out of sheer political expediency.
But Jefferson and Madison had utmost respect for the written word. Consistency between words and beliefs would have been matters of personal integrity for each. After all, the authors of the Declaration of Independence and the Virginia Plan for the Constitution understood their relative positions in the eyes of fellow countrymen.
Jefferson wrote in the Kentucky Resolves that the Union was a compact among States. The general government exists for express and delegated purposes only. Jefferson quotes the Tenth Amendment, saying that States are equal judges with the federal government on questions of Constitutionality. Jefferson writes further that “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson equates the Constitution with an “attachment...to limited government” and says that successive acts of tyranny ought to drive the States into “revolution and blood.”
James Madison wrote in the Virginia Resolves that States acted Constitutionally when they blocked domestic federal aggression. Like Jefferson, Madison emphasizes the enumerated nature of federal power. In case of “dangerous exercise of other powers, not granted by the said compact, the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil.” He names any device “so as to consolidate the states, by degrees, into one sovereignty” as the sort of dangerous and undelegated exercise of power he means.
Madison is more tentative and incremental in his approach than Jefferson. But Madison uses Constitutional language to confer on States the same power to maintain their part of dual sovereignty as he attributes to the federal government to maintain its part. Namely, Madison says the States must take all “necessary and proper measures...in maintaining unimpaired the authorities, rights, and liberties, reserved to the states respectively, or to the people.”
The issue was finally resolved through the Jeffersonian political revolution of 1800. The election was an overwhelming repudiation of the extreme Federalist party position of unitary federal (versus dual state and federal) sovereignty. Americans were gratified that secession or civil war was unnecessary. But the backdrop of revolutionary political commitment was essential to producing the first peaceful transition of power between parties in American history.
After Jefferson’s and Madison’s trade policies had disproportionately hurt states involved in shipping and overseas commerce, the New England states seriously entertained secession at the Hartford Convention in 1814. Massachusetts responded in nearly the same manner as South Carolina did later in the Nullification Crisis. The Hartford Convention failed to endorse secession outright, but it did adopt nullification measures.
In this century, such threats have been silenced. The growth of government has evolved through force and the threat by activist Presidents; by micromanaging Congressmen and bureaucrats; and by activist judges with social agendas.
The people are now reduced to having to overcome the burden of Constitutional amendment just to restore the original intent: to have a government that balances its budget; to control schools at the local level; to have safe and moral neighborhoods; to exercise the people’s better judgment; to restate the 10th amendment in so many ways that even a lawyer--and perhaps the Supreme Court--can understand it.
It is uncertain whether that burden will or can be overcome. Nor is it necessary, if the Constitution were properly observed. Yet American history teaches us that rebellion is not only conceivable; it may be a duty incumbent. And the threat itself may be enough to cause the federal government to return to its proper role, and thus reinstate the desired vertical balance within the federal system.
