Thomas Jefferson, Secession, and States Rights

jdmnw

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The people who actually wrote the language of the 10th amendment, which was presumably someone in the 1st Congress.



The preamble originally listed the states by individual name, and the Committee on Style wasn't supposed to change the meaning of anything, just the wording.... so I'm not so sure the Preamble hasn't been used in ways that, again, wasn't originally intended. Just a thought. Obviously at this point, after centuries of legal rulings, "We the People" does refer to the people of the United States collectively, but I'm not sure that's what it was supposed to mean when written, unless Governeur Morris was being sneaky.

(Don't know if anyone here has responded to this since I haven't been through all 18 pages, but...)
According to Constitutional Scholar and Yale Professor Akhil Reed Amar, the wording was changed because they couldn't be sure which states would ratify the Constitution and join the Union. It seemed presumptuous to assume anything. See America's Constitution ~ A Biography ~
 

jgoodguy

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(Don't know if anyone here has responded to this since I haven't been through all 18 pages, but...)
According to Constitutional Scholar and Yale Professor Akhil Reed Amar, the wording was changed because they couldn't be sure which states would ratify the Constitution and join the Union. It seemed presumptuous to assume anything. See America's Constitution ~ A Biography ~
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jdmnw

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I'm not familiar with the man, but I get a tad bit concerned when a constitutional scholar takes that passage from the official letter of the Constitutional Convention and presents it as Washington’s own personal thought:



The letter was created by the Committee of Stile [sic] and Arrangement, presented to and adopted by the Committee of the Whole (the Convention itself), and signed by Washington merely in his official capacity as President of the Convention. You’d think a constitutional scholar would be intimately familiar with the proceedings of the Constitutional Convention.


I also get a tad concerned when anyone, but especially someone who is held up as a Constitutional Scholar, makes a statement like the following:

The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government. (Underlining and red coloring added).
If he's referring to the Tenth Amendment (which I believe he is), it says no such thing. Instead it says

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.​

The word "expressly" does not appear anywhere in the amendment. In fact, Madison went to great lengths to keep it out:

http://americanvision.org/10598/james-madisons-big-hypocrisy-limited-government/
http://press-pubs.uchicago.edu/founders/documents/amendXs6.html

FWIW, I searched both the Constitution and the Bill Of Rights for "express" or "expressly" and didn't find either.

I've mentioned him before, but I think a much more reliable and knowledgeable Constitutional Scholar is Professor Akhil Reed Amar:

Akhil Amar

I don't know how many times (or even if) Turley has been favorably cited by SCOTUS, but Professor Amar is at plus 30 and counting.
 
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CW Buff

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I also get a tad concerned when anyone, but especially someone who is held up as a Constitutional Scholar, makes a statement like the following:

The premise of the Constitution, however, was that states would still hold all rights not expressly given to the federal government. (Underlining and red coloring added).
If he's referring to the Tenth Amendment (which I believe he is), it says no such thing. Instead it says

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.
The word "expressly" does not appear anywhere in the amendment. In fact, Madison went to great lengths to keep it out:

http://americanvision.org/10598/james-madisons-big-hypocrisy-limited-government/
http://press-pubs.uchicago.edu/founders/documents/amendXs6.html

FWIW, I searched both the Constitution and the Bill Of Rights for "express" or "expressly" and didn't find either.

I've mentioned him before, but I think a much more reliable and knowledgeable Constitutional Scholar is Professor Akhil Reed Amar:

Akhil Amar

I don't know how many times (or even if) Turley has been favorably cited by SCOTUS, but Professor Amar is at plus 30 and counting.

Excellent catch.

I'm only moderately familiar with Amar, but from what little I know I agree with you completely. He's high on my list of authors I want to read.
 

OpnCoronet

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(Don't know if anyone here has responded to this since I haven't been through all 18 pages, but...)
According to Constitutional Scholar and Yale Professor Akhil Reed Amar, the wording was changed because they couldn't be sure which states would ratify the Constitution and join the Union. It seemed presumptuous to assume anything. See America's Constitution ~ A Biography ~



It was recognized(or at least professed to be recognized) that the ultimate power to govern, was vested in those to be governed(gov't by consent of those to be governed). This applied not only to the Federal gov't, but also that of the States themselves.

Under the Constitution, Some powers or authority were properly vested in the gov'ts chosen by the people to govern themselves, state legislatures, but, in some cases, questions of ultimate discretion of the use of such power and/or authority, could only be properly vested in the ultimate source of all gov't, i.e., the people that are to choose the gov't and laws by which they will be governed.

As noted by Madison himself, the Constitution had to be ratified by the people, rather than state legislatures, because changing the form of gov't of the Union, they already existed in, was forbidden by some state constitutions.

State Legislatures were subject to consent of the people of their state, as the Federal, was by the consent of the people of their Union.
 

jgoodguy

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It was recognized(or at least professed to be recognized) that the ultimate power to govern, was vested in those to be governed(gov't by consent of those to be governed). This applied not only to the Federal gov't, but also that of the States themselves.

Under the Constitution, Some powers or authority were properly vested in the gov'ts chosen by the people to govern themselves, state legislatures, but, in some cases, questions of ultimate discretion of the use of such power and/or authority, could only be properly vested in the ultimate source of all gov't, i.e., the people that are to choose the gov't and laws by which they will be governed.

As noted by Madison himself, the Constitution had to be ratified by the people, rather than state legislatures, because changing the form of gov't of the Union, they already existed in, was forbidden by some state constitutions.

State Legislatures were subject to consent of the people of their state, as the Federal, was by the consent of the people of their Union.
IMHO there were several 'schools' of thought during the convention and ratification and several different cases can be made, but the preponderance of evidence is that the nationalistic schools was the dominant one through Jefferson's administration so the founding and foundation is nationalistic. States Rights have waxed and waned from then on, but States Rights seem to go overboard when problems come up. Even Jefferson was nationalist for example the Louisiana Purchase and the Embargo Act.
 

OpnCoronet

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It seems to me, that whatever the differing schools thought existing at the time, in practical terms of the actual operation of the Federal gov't and its courts, it was mainly the Federalist arguments that both looked to, for their inspiration; even if they did not always admit it, or perhaps were not even aware of it.
 

CW Buff

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IMHO there were several 'schools' of thought during the convention and ratification and several different cases can be made, but the preponderance of evidence is that the nationalistic schools was the dominant one through Jefferson's administration so the founding and foundation is nationalistic. States Rights have waxed and waned from then on, but States Rights seem to go overboard when problems come up. Even Jefferson was nationalist for example the Louisiana Purchase and the Embargo Act.

I think it can be said that both parties (and perhaps all parties) had a different take on where the line between state and federal authority was when they were in power vs out of power. But it can also be said that both parties remained true to their nature, to some degree. In other words, Democratic-Republican transgressions (LA Purchase, embargo), while nationalistic, were not as extremely nationalistic as Federalist transgressions (Alien Sedition Acts). The latter was clearly infringing on civil rights proclaimed within the Bill of Rights, which Federalists had claimed were not even required because those Fed had not enumerated powers to infringe upon them.

Human nature, the Achilles heal of all government.
 

NathanTowne

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Interesting discussion.

For those interested, here is the text of Jefferson's full draft of the Kentucky Resolution:

[before 4 Oct. 1798]

1. Resolved that the several states composing the US. of America are not united on the principle of unlimited submission to their general government; but that, by a compact under the style & title of a Constitution for the US. and of Amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void, & of no force.

that to this compact each state acceded as a state, and is an integral party, it’s co-states forming, as to itself, the other party.

that the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made it’s discretion, & not the constitution the measure of it’s powers: but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions, as of the mode & measure of redress.

2. Resolved that, the Constitution of the US. having delegated to Congress a power to punish treason, counterfieting the securities & current coin of the US. piracies & felonies committed on the high seas, and offences against the law of nations, & no other crimes whatsoever, and it being true as a general principle, and one of the Amendments to the constitution having also declared, that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,’ therefore, the act of Congress passed on the 14th day of July 1798. and intituled ‘an Act in addition to the act intituled an Act for the punishment of certain crimes against the US.’ as also the act passed by them on the day of June 1798. intituled ‘an Act to punish frauds committed on the bank of the US.’ [and all other their acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution are altogether void and of no force, and that the power to create, define, & punish such other crimes is reserved, and of right appurtains solely and exclusively to the respective states, each within it’s own territory.

3. Resolved that it is true as a general principle and is also expressly declared by one of the amendments to the constitution that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the states, are reserved to the states respectively or to the people’: and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the US. by the constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, & were reserved, to the states or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgement by the US. of the freedom of religious opinions and exercises, & retained to themselves the right of protecting the same, as this state, by a law passed on the general demand of it’s citizens, had already protected them, from all human restraint or interference: And that in addition to this general principle & express declaration, another & more special provision has been made by one of the amendments to the constitution which expressly declares that ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press,’ thereby guarding in the same sentence & under the same words the freedom of religion, of speech & of the press. insomuch that whatever violates either throws down the sanctuary which covers the others, and that libels, falsehood and defamation equally with heresy & false religion are witheld from the cognisance of federal tribunals; that therefore the act of the Congress of the US. passed on the 14th. day of July 1798. intituled ‘an act in addition to the act intituled an act for the punishment of certain crimes against the US.’ which does abridge the freedom of the press is not law but is altogether void and of no force.

4. Resolved that ALIEN-friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the US. nor prohibited to the individual states distinct from their power over citizens: and it being true as a general principle, and one of the Amendments to the constitution having also declared, that ‘the powers not delegated to the US. by the constitution, nor prohibited by it to the States, are reserved to the states respectively, or to the people,’ the act of the Congress of the US. passed on the day of July 1798. intituled ‘an Act concerning Aliens’ which assumes powers over Alien-friends not delegated by the constitution is not law, but is altogether void & of no force.

5. Resolved that in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the constitution from abundant caution, has declared that ‘the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808,’ that this commonwealth does admit the migration of Alien-friends, described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the constitution, and void.

6. Resolved that the imprisonment of a person under the protection of the laws of this commonwealth on his failure to obey the simple order of the President to depart out of the US. as is undertaken by the said act intituled ‘an act concerning Aliens’ is contrary to the constitution, one Amendment to which has provided that ‘no person shall be deprived of liberty without due process of law.’ and that another having provided that ‘in all criminal
prosecutions the accused shall enjoy the right to a public trial, by an impartial jury, to be informed of the nature & cause of the accusation to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, & to have the assistance of counsel for his defence’ the same act undertaking to authorize the President to remove a person out of the US. who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to these provisions also of the constitution, is therefore not law, but utterly void & of no force.

that transferring the power of judging any person who is under the protection of the law, from the courts to the President of the US. as is undertaken by the same act concerning Aliens, is against the article of the constitution which provides that ‘the judicial power of the US. shall be vested in courts the judges of which shall hold their offices during good behavior,’ & that the sd act is void for that reason also. and it is further to be noted that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all the Legislative powers.

7. Resolved that the construction applied by the general government, (as is evidenced by sundry of their proceedings) to those parts of the constitution of the US. which delegate to Congress a power ‘to lay & collect taxes, duties, imposts, & excises, to pay the debts & provide for the common defence & general welfare of the US.’ and ‘to make all laws which shall be necessary & proper for carrying into execution the powers vested by the constitution in the government of the US. or in any department or officer thereof,’ goes to the destruction of all the limits prescribed to their power by the constitution; that words meant by that instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the general government under colour of these articles, will be a fit & necessary subject of revisal & correction at a time of greater tranquility while those specified in the preceding resolutions, call for immediate redress.

8. Resolved that a committee of conference & correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth continues in the same esteem for their friendship & union which it has manifested from that moment at which a common danger first suggested a common union: that it 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 faithful to that compact, according to the plain intent & meaning in which it was understood & acceded to by the several parties, it is sincerely anxious for it’s preservation: 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 co-states are, to submit to undelegated & 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 [casus non foederis 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: that nevertheless this commonwealth, from motives of regard & respect for it’s co-states has wished to communicate with them on the subject; that with them alone it is proper to communicate, they alone being parties to the compact, & solely authorised to judge in the last resort of the powers exercised under it; Congress being not a party, but merely the creature of the compact, & subject, as to it’s assumptions of power, to the final judgment of those by whom & for whose use itselfand it’s powers were all created and modified: that if those acts before specified should stand, these conclusions would flow from them; that the General government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated, or not enumerated by the constitution as cognisable by them; that they may transfer it’s cognisance to the President, or any other person, who may himself be the accuser, counsel, judge & jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, & his breast the sole record of the transaction: that a very numerous & valuable description of the inhabitants of these states being, by this precedent reduced as Outlaws to the absolute dominion of one man, and the barrier of the constitution thus swept away for us all, no rampart now remains against the passions and the power of a majority in Congress, to protect from a like exportation or other more grievous punishment, the Minority of the same body, the legislatures, judges, governors, & counsellors of the states, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the states and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their elections or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for already has a Sedition act marked him as it’s prey: that these & successive acts of the same character, unless arrested at the threshold necessarily drive these states into revolution and blood, and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism; free government is founded in jealousy and not in confidence; it is jealousy & not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power: that our constitution has accordinglyfixed the limits to which, and no further, our confidence may go: and let the honest advocate of confidence read the Alien & Sedition acts, and say if the constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits? let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted over the friendly strangers to whom the mild spirit of our country & it’s laws had pledged hospitality & protection: that the men of our choice have more respected the bare suspicions of the President, than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms & substance of law & justice: in questions of power then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the constitution: that this commonwealth does therefore call on it’s co-states for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes, herein before specified, plainly declaring whether these acts are, or are not, authorised by the federal compact? and it doubts not that their sense will be so enounced as to prove their attachment unaltered to limited government whether general or particular; & that the rights & liberties of their co-states will be exposed to no dangers by remaining embarked in a common bottom with their own: that they will concur with this comm. in considering the said acts as so palpably against the constn as to amount to an undisguised declarn that that compact is not meant to be the measure of the powers of the genl. govm’t, but that it will proceed in the exercise over these states of all powers whatsoever, that they will view this as seizing the rights of the states & consolidating them in the hands of the genl govm’t with a power assumed to bind the states (not merely in the cases made federal, but) in all cases whatsoever, by laws made not with their consent, but by others against their consent; that this would be to surrender the form of govmt we have chosen, & to live under one deriving it’s powers from it’s own will & not from our authority, and that the costates, recurring to their natural right in cases not made federal, will concur in declaring these acts void & of no force & will each take measures of it’s own for providing that neither these acts nor any others of the genl. government not plainly & intentionally authorised by the constn shall be exercised within their respective territories.

9. That the said committee be authorised to communicate, by writing or personal conferences, at any times or places whatever, with any person or persons who may be appointed by any one or more of the co-states to correspond or confer with them; & that they lay their proceedings before the next session of assembly: that the members of the said committee, while acting within the state, have the same allowance as the members of the General assembly, and while acting without the commonwealth, the same as members of Congress: and that the Treasurer be authorised, on warrants from the Governor, to advance them monies on account for the said services.
 
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NathanTowne

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Here also is the final text of the full version of the Kentucky Resolution as adopted by the Kentucky General Assembly:

In the House of Representatives, November 10th, 1798.

I. Resolved, that the several states composing the United States of America, are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each state to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each state acceded as a state, and is an integral party, its co-states forming as to itself, the other party: That the Government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the constitution, the measure of its powers; but that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

II. Resolved, that the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the High Seas, and offences against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, “that 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,” therefore also the same act of Congress passed on the 14th day of July, 1798, and entitled “An act in addition to the act entitled an act for the punishment of certain crimes against the United States;” as also the act passed by them on the 27th day of June, 1798, entitled “An act to punish frauds committed on the Bank of the United States” (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the constitution) are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective states, each within its own Territory.

III. Resolved, that it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution that “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;” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people: That thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgement by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this state by a Law passed on the general demand of its Citizens, had already protected them from all human restraint or interference: And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution which expressly declares, that “Congress shall make no law respecting an Establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of the Congress of the United States passed on the 14th day of July 1798, entitled “An act in addition to the act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void and of no effect.

IV. Resolved, that alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that “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,” the act of the Congress of the United States passed on the 22d day of June, 1798, entitled “An act concerning aliens,” which assumes power over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

V. Resolved, that in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution from abundant caution has declared, “that the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808.” That this Commonwealth does admit the migration of alien friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the Constitution, and void.

VI. Resolved, that the imprisonment of a person under the protection of the Laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled “An act concerning Aliens,” is contrary to the Constitution, one amendment to which has provided, that “no person shall be deprived of liberty without due process of law,” and that another having provided “that in all criminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence,” the same act undertaking to authorize the President to remove a person out of the United States who is under the protection of the Law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favour, without defence, without counsel, is contrary to these provisions also of the Constitution, is therefore not law but utterly void and of no force.

That transferring the power of judging any person who is under the protection of the laws, from the Courts to the President of the United States, as is undertaken by the same act concerning Aliens, is against the article of the Constitution which provides, that “the judicial power of the United States shall be vested in Courts, the Judges of which shall hold their offices during good behaviour,” and that the said act is void for that reason also; and it is further to be noted, that this transfer of Judiciary power is to that magistrate of the General Government who already possesses all the Executive, and a qualified negative in all the Legislative powers.

VII. Resolved, that the construction applied by the General Government (as is evinced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power 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, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution—That words meant by that instrument to be subsiduary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken, as to destroy the whole residue of the instrument: That the proceedings of the General Government under colour of these articles, will be a fit and necessary subject for revisal and correction at a time of greater tranquility, while those specified in the preceding resolutions call for immediate redress.

VIII. Resolved, that the preceding Resolutions be transmitted to the Senators and Representatives in Congress from this Commonwealth, who are hereby enjoined to present the same to their respective Houses, and to use their best endeavours to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.

IX. Resolved lastly, that the Governor of this Commonwealth be, and is hereby authorised and requested to communicate the preceding Resolutions to the Legislatures of the several States, to assure them that this Commonwealth 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 faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the states all the powers of self government, and transfer them to a general and consolidated Government, without regard to the special delegations and 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 its Co-states are, tamely to submit to undelegated & consequently unlimited powers in no man or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes & punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them: that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these states, being by this precedent reduced as outlaws to the absolute dominion of one man and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation or other more grievous punishment the minority of the same body, the Legislatures, Judges, Governors, & Counsellors of the states, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights & liberties of the states & people, or who for other causes, good or bad, may be obnoxious to the views or marked by the suspicions of the President, or be thought dangerous to his or their elections or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment: but the citizen will soon follow, or rather has already followed; for, already has a Sedition Act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, may tend to
drive these states into revolution and blood, and will furnish new calumnies against Republican Governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the Constitution has not been wise in fixing limits to the Government it created, and whether we should be wise in destroying those limits? Let him say what the Government is if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted over the friendly strangers, to whom the mild spirit of our Country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms & substance of law and justice. In questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this Commonwealth does therefore call on its Co-states for an expression of their sentiments on the acts concerning Aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorised by the Federal Compact? And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited Government, whether general or particular, and that the rights and liberties of their Co-states will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration, that the Compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these states of all powers whatsoever: That they will view this as seizing the rights of the states and consolidating them in the hands of the General Government with a power assumed to bind the states (not merely in cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and to live under one deriving its powers from its own will, and not from our authority; and that the Co-states recurring 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.

An abbreviated version of the Resolution was also passed in early December.
 
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NathanTowne

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Now, of course, Madison would go on to author the significantly milder Virginia Resolution. Here is the widely published version of the Virginia Resolution as passed in the Virginia House of Delegates:

Friday Decr. 21st. 1798.

RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and 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, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.

That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.

That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.

That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemenly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.

That the Governor be desired, to transmit a copy of the foregoing Resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.


-Agreed to by the State Senate, December 24, 1798.

The longer report can be found here: https://archive.org/stream/virginiareportof00virgrich/virginiareportof00virgrich_djvu.txt
 
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NathanTowne

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Madison would go on to vigorously defend the Virginia Resolution in the Report of 1800, in which he explains the Virginia Resolution very clearly as a declaration by the State regarding the unconstitutionality of the Alien and Sedition Acts while also explaining that the Virginia Resolution should not be taken as a declaration of nullification, a right that he stipulates was not, under any construction, retained to the States under the Constitution. Madison would also go on to forcefully denounce the concept of nullification in the future.

I don't think that the wording of the Kentucky Resolutions however, permit this construction. Unlike Madison, Jefferson's words in the Resolution, as well as in the version passed by the Legislature of the State seem to clearly declare that the State was nullifying Federal law on constitutional grounds.
 

OpnCoronet

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I don't think that the wording of the Kentucky Resolutions however, permit this construction. Unlike Madison, Jefferson's words in the Resolution, as well as in the version passed by the Legislature of the State seem to clearly declare that the State was nullifying Federal law on constitutional grounds.





But, in fact, the few states that bothered to respond to those resolutions(as requested by their authors) seems to have been unanimously hostile to them and interpreted them as being devisive of the Union, saw them as a direct threat to the Union itself.

Whatever Jefferson, may have intended by his words, they seem to evoked fear of Disunion by a lot of people then and now.
 

NathanTowne

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But, in fact, the few states that bothered to respond to those resolutions(as requested by their authors) seems to have been unanimously hostile to them and interpreted them as being devisive of the Union, saw them as a direct threat to the Union itself.

Whatever Jefferson, may have intended by his words, they seem to evoked fear of Disunion by a lot of people then and now.

That is all true.

The purpose of the Resolution of 1800 was to defend the Virginia Resolution on the grounds that it had not attempted to nullify Federal law, a declaration that I believe Madison was honest in making. I don't see how the Kentucky Resolutions can be taken as such, however.

Now, it is interesting, because Jefferson had famously written in 1786, while the AOC were in effect, that the Federal government held a supreme position over the States regarding the laws and had the power to coerce a state into obeying them. My understanding is that Jefferson reconciled the two positions on the grounds that the States retained the power to discern the constitutionality of the law and hence could nullify Federal laws which were deemed to be unconstitutional, but had no right within the Union to nullify laws on the grounds that the State was opposed to it. That is my understanding, at least.

Personally, I find nullification to be a simpler issue than secession. From what I see, it is absolutely, categorically, unconstitutional, for all of the reasons which Madison specified. The issue of secession gets a little bit more complicated.
 
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NathanTowne

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It should also be noted, for those that are unaware, that Jefferson attempted to keep his authorship of the Ky. Resolutions hidden for the rest of his life.

That is also true.

Had it been known at the time that he had authored the Kentucky Resolutions, events would have all but certainly played out differently for him than they did.
 

OpnCoronet

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That is all true.
The purpose of the Resolution of 1800 was to defend the Virginia Resolution on the grounds that it had not attempted to nullify Federal law, a declaration that I believe Madison was honest in making. I don't see how the Kentucky Resolutions can be taken as such, however.
Now, it is interesting, because Jefferson had famously written in 1786, while the AOC were in effect, that the Federal government held a supreme position over the States regarding the laws and had the power to coerce a state into obeying them. My understanding is that Jefferson reconciled the two positions on the grounds that the States retained the power to discern the constitutionality of the law and hence could nullify Federal laws which were deemed to be unconstitutional, but had no right within the Union to nullify laws on the grounds that the State was opposed to it. That is my understanding, at least.
Personally, I find nullification to be a simpler issue than secession. From what I see, it is absolutely, categorically, unconstitutional, for all of the reasons which Madison specified. The issue of secession gets a little bit more complicated.



Madison, certainly labored long and hard to defend his Resolution against the charges of Disunion.

I am not sure Jefferson(hiding behind his pseudonym) ever felt the need to defend his resolution.

But, my point is that they were two opinions among many and the proof for secession or nullification is thin in both, or, at least, not any more cogent or convincing that many others who disagreed with both men.
 

jgoodguy

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Madison, certainly labored long and hard to defend his Resolution against the charges of Disunion.

I am not sure Jefferson(hiding behind his pseudonym) ever felt the need to defend his resolution.

But, my point is that they were two opinions among many and the proof for secession or nullification is thin in both, or, at least, not any more cogent or convincing that many others who disagreed with both men.

I also would like to point out that the Founding Fathers not only had different opinions among themselves, but at they also varied at time of life, career or even different points in a debate. Jefferson famously changed his opinion once he was President. We used to have lengthy dueling lists of opinions about secession and nationalism that went nowhere. That is why I look for Constitutional provision, statute or court decisions because they are tangible law.
 

NathanTowne

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I also would like to point out that the Founding Fathers not only had different opinions among themselves, but at they also varied at time of life, career or even different points in a debate. Jefferson famously changed his opinion once he was President. We used to have lengthy dueling lists of opinions about secession and nationalism that went nowhere. That is why I look for Constitutional provision, statute or court decisions because they are tangible law.

The fact that whenever you quote a historical player you are catching them at one moment in time, is always an important consideration to be mindful of.

I don't see much foundation to the assertion that Jefferson was inconsistent regarding the role of the States in the Union, despite it being a common accusation, however. At least from what I can see, he seems to have been consistent. This issue did not arise again during his administration, in this form, as far as I have ever seen.
 
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