The Spirit of American Government Part 6

It may be contended that the Const.i.tution makes it his duty to enforce all laws without regard to his own views of their wisdom or expediency.

This contention, however, does not appear to be borne out by the purpose of the Const.i.tution itself. It was not the intention of the framers of that instrument to make the President a mere administrative agent of Congress, but rather to set him over against that body and make him in a large measure the judge of his own authority. If it be claimed that it is his duty to enforce all laws that have been regularly enacted, it must at the same time be conceded that the Const.i.tution permits their non-enforcement, since it has given neither to Congress nor to the people any effective power to remove him for neglect of duty. Moreover, his oath of office does not expressly bind him to enforce the laws of Congress, but merely to "execute the office of President ... and preserve, protect, and defend the Const.i.tution of the United States."[120]

This omission can not be satisfactorily explained as a mere oversight.

The Ma.s.sachusetts const.i.tution of 1780, from which the fathers copied the qualified veto power, required the governor to take an oath in which he obligated himself to perform the duties of his office "agreeably to the rules and regulations of the const.i.tution and the laws of the commonwealth." There was no precedent in any then existing state const.i.tution for expressly binding the executive in his oath of office to defend the Const.i.tution without mentioning his duty to enforce the laws. It is a reasonable inference that the framers of the Const.i.tution intended to impress the President with the belief that his obligation to defend the Const.i.tution was more binding upon him than his duty to enforce the laws enacted by Congress.

In the foregoing discussion it has been shown that political authority was unequally divided between the various branches of the government; to the extent that this was the case the framers of the Const.i.tution did not adhere consistently to the theory of checks. But in this, as in other instances where they departed from precedents which they professed to be following, they were actuated by a desire to minimize the direct influence of the people. If the Const.i.tution had been framed in complete accord with the doctrine of checks and balances, the lower house of Congress as the direct representative of the people would have been given a veto on the entire policy of the government. But this, as we have seen, was not done. The more important powers were placed under the exclusive control of the other branches of the government over which it was believed public opinion would have but little influence. This deprived the people of the unlimited negative to which they were ent.i.tled even according to the theory of checks. Richard Henry Lee did not greatly exaggerate then when he said: "The only check to be found in favor of the democratic principle, in this system, is the House of Representatives, which, I believe, may justly be called a mere shred or rag of representation."[121] Nor was Mason entirely mistaken when he referred to the House of Representatives as "the shadow only" and not "the substance of representation."[122]

It may be thought, even though the Const.i.tution does not give the House of Representatives a direct negative on all the important acts of the government, that it does so indirectly through its control over the purse. An examination of the system with reference to this question, however, reveals the fact that the control of the House over taxation and expenditure is narrowly limited. A revenue law is subject to no const.i.tutional limitation, and when once enacted remains in force until repealed by subsequent legislation. a.s.suming that a revenue system has been established which is sufficient for the needs of the government, the House can exercise no further control over income. It can not repeal it, or modify it in any way without the consent of the President and Senate.

Turning now to the matter of expenditure, we find that the Const.i.tution allows permanent provision to be made for the needs of the government, with the single exception of the army, for the support of which no funds can be appropriated for a longer period than two years. The policy of permanent appropriations has not yet been applied to the full extent permitted by the Const.i.tution, but it has been carried much further than a consistent adherence to the doctrine of popular control over the budget would warrant. The practice could easily be extended until every want of the government except the expenses of the army, even including the maintenance of the navy, had been provided for by permanent appropriations. And it may be added that with the increasing desire for stability which comes with the development of vast business interests, the tendency is strongly in that direction.

Let us suppose that some political party, for the time being in control of the law-making power of the government, should extend the practice of making permanent appropriations to the extreme limit allowed by the Const.i.tution. This would relieve the administration of all financial dependence upon public sentiment except in the management of the army.

And if, as the framers of the Const.i.tution contemplated, the President and the Senate should represent the minority, the administration might for years pursue a policy to which public opinion had come to be strongly opposed. For with the system once adopted its repeal could not be effected without the concurrence of all branches of the law-making authority. The President and Congress could, in antic.i.p.ation of an adverse majority in the House, guard against the withdrawal of financial support from their policy by simply making permanent provision for their needs. Our present system would permit this to be done even after the party in power had been overwhelmingly defeated at the polls, since the second session of the old congress does not begin until after the members of the new House of Representatives have been elected.[123]

This would tie the hands of any adverse popular majority in a succeeding congress and effectually deprive it of even a veto on the income and expenditure of the government, until such time as it should also gain control of the Presidency and the Senate. But this last could never have happened if the practical working of the Const.i.tution had been what its framers intended. Whatever control, then, the majority may now exercise over taxation and public expenditure has thus been acquired less through any const.i.tutional provisions intended to secure it, than in spite of those which seemingly made it impossible.

Equally significant was the failure of the Convention to make any adequate provision for enforcing publicity. The Const.i.tution says "a regular statement of the receipts and expenditures of public money shall be published from time to time," and also that "each House shall keep a journal of its proceedings, and from time to time publish the same, except such parts as may in their judgment required secrecy."[124] That these provisions were of little practical value is evident from the fact that they contain no definite statement as to when and how often the accounts and journals are to be published. The phrase _from time to time_ was susceptible of almost any interpretation that either house of Congress or the President might wish to give it, and could easily have been so construed as to justify a method of publication which gave the people but little information concerning the present state of public affairs. The framers of the Const.i.tution did not believe that the management of the government was in any proper sense the people's business; yet they realized that the people themselves took a different view of the matter, which made some const.i.tutional guarantee of publicity necessary. It was, however, the form rather than the substance of such a guarantee which the Const.i.tution contained.

Neither house of Congress is required by the Const.i.tution to hold open sittings or publish its speeches and debates.[125] Until 1799 the Senate exercised its const.i.tutional right to transact public business in secret; and during that period preserved no record of its debates. This policy did not win for it the confidence of the people, and until after it was in a measure abandoned, the Senate, notwithstanding the important powers conferred on it by the Const.i.tution, was not a very influential body.

To deny the right of the people to control the government leads naturally to denial of their right to criticise those who shape its policy; since if free and unrestricted discussion and even condemnation of official conduct were allowed, no system of minority rule could long survive. This was well understood in the Federal Convention. The members of that body saw that the const.i.tutional right of public officials to disregard the wishes of the people was incompatible with the right of the latter to drag them before the bar of public opinion. Hence some limitation of the right to criticise public officials was necessary to safeguard and preserve their official independence. This seems to have been the purpose of the Const.i.tution in providing with reference to members of Congress that "for any speech or debate in either House they shall not be questioned in any other place."[126]

This provision may be traced to the English Bill of Rights where it was intended as a means of protecting members of Parliament against imprisonment and prosecution for opposing the arbitrary acts of the Crown. It was at first merely an a.s.sertion of the independence of the Lords and Commons as against the King, and a denial of the right of the latter to call them to account for anything said or done in their legislative capacity. But after it had accomplished its original purpose and the tyrannical power of the King had been overthrown, it was found to be serviceable in warding off attacks from another direction. It thus came about that the means devised and employed by Parliament to shield its members against intimidation and oppression at the hands of the King was later turned against the people; for Parliament in divesting the King of his irresponsible authority was desirous only of establishing its own supremacy. It jealously guarded its own prerogatives, claimed the right to govern independently, and just as formerly it had resisted the encroachments of royal authority, it now resented the efforts of the people to influence its policy by the publication and criticism of its proceedings.

A standing order pa.s.sed by the House of Commons in 1728 declared "that it is an indignity to, and a breach of, the privilege of this House for any person to presume to give in written or printed newspapers, any account or minute of the debates or other proceedings; that upon discovery of the authors, printers, or publishers of any such newspaper this House will proceed against the offenders with the utmost severity."[127]

This was the att.i.tude of Parliament down to 1771, when, after a prolonged and bitter struggle, the House of Commons was finally driven by the force of an overwhelming public sentiment to acquiesce in the publication of its proceedings.

There was, however, a small minority in the House that opposed the policy of prosecuting the representatives of the press. The following extract from the Annual Register for 1771 describes the att.i.tude of this minority.

"Some gentlemen however did not rest their opposition on the points of decorum and prudence, but went so far as to deny the authority of the House in this respect, and said that it was an usurpation a.s.sumed in bad times, in the year 1641; that while their privileges and authority were used in defense of the rights of the people, against the violence of the prerogative, all men willingly joined in supporting them, and even their usurpations were considered as fresh securities to their independence; but now that they saw their own weapons converted to instruments of tyranny and oppression against themselves, they would oppose them with all their might, and, however they may fail in the first efforts, would finally prevail, and a.s.suredly bring things back to their first principles. They also said that the practice of letting the const.i.tuents know the parliamentary proceedings of their representatives was founded upon the truest principles of the Const.i.tution; and that even the publishing of supposed speeches was not a novel practice, and if precedent was a justification, could be traced to no less an authority than Lord Clarendon."[128]

"In the early years of the colonial era the right of free speech was not always well guarded. There was frequent legislation, for example, against 'seditious utterances,' a term which might mean almost anything.

In 1639 the Maryland a.s.sembly pa.s.sed an act for 'determining enormous offences,' among which were included 'scandalous or contemptuous words or writings to the dishonor of the lord proprietarie or his lieutenant generall for the time being, or any of the council.' By a North Carolina act of 1715 seditious utterances against the government was made a criminal offence, and in 1724 Joseph Castleton, for malicious language against Governor Burrington and for other contemptuous remarks, was sentenced by the general court to stand in the pillory for two hours and on his knees to beg the governor's pardon. A New Jersey act of 1675 required that persons found guilty of resisting the authority of the governor or councillors 'either in words or actions ... by speaking contemptuously, reproachfully, or maliciously, of any of them,' should be liable to fine, banishment, or corporal punishment at the discretion of the court. In Ma.s.sachusetts even during the eighteenth century the right of free political discussion was denied by the House of Representatives as well as by the royal governor, though often unsuccessfully."[129]

"The general publication of parliamentary debates dates only from the American Revolution, and even then it was still considered a technical breach of privilege.

"The American colonies followed the practice of the parent country. Even the laws were not at first published for general circulation, and it seemed to be thought desirable by the magistrates to keep the people in ignorance of the precise boundary between that which was lawful and that which was prohibited, as more likely to avoid all doubtful actions....

"The public bodies of the united nation did not at once invite publicity to their deliberations. The Const.i.tutional Convention of 1787 sat with closed doors, and although imperfect reports of the debates have since been published, the injunction of secrecy upon its members was never removed. The Senate for a time followed this example, and the first open debate was had in 1793, on the occasion of the controversy over the right of Mr. Gallatin to a seat in that body. The House of Representatives sat with open doors from the first, tolerating the presence of reporters,--over whose admission, however, the Speaker a.s.sumed control,--and refusing in 1796 the pittance of two thousand dollars for full publication of its debates.

"It must be evident from these historical facts that liberty of the press, as now understood and enjoyed, is of very recent origin."[130]

Both the original purpose of this parliamentary privilege and its subsequent abuse not only in England but also in the Colonies, were facts well known by those who framed the Const.i.tution. There was no King here, from whose arbitrary acts Congress would need to be protected, but there was a power which the framers of the Const.i.tution regarded as no less tyrannical and fully as much to be feared--the power of the people as represented by the numerical majority. How to guard against this new species of tyranny was the problem that confronted them. The majority was just as impatient of restraint, just as eager to brush aside all opposition as king or aristocracy had ever been in the past. Taking this view of the matter, it was but natural that they should seek to protect Congress against the people as Parliament had formerly been protected against the Crown. For exactly the same reason as we have seen, they made the judges independent of the people as they had been made independent of the King in England. In no other way was it possible to limit the power of the majority.

That this provision concerning freedom of speech and debate in the legislative body was not regarded as especially important during the Revolutionary period is shown by its absence from most of the early state const.i.tutions. When the Federal Const.i.tution was framed only three of the original states[131] had adopted const.i.tutions containing such a provision. There was, as a matter of fact, no real need for it in the state const.i.tutions of that time. The controlling influence exerted by the legislature in the state government, and the dependence of the courts upon that body, precluded the possibility of any abuse of their powers in this direction.

The Articles of Confederation contained the provision that "Freedom of speech and debate in Congress shall not be impeached or questioned in any court or place out of Congress."[132] This was designed to protect members of Congress against prosecution in the state courts. Here, as in the English Bill of Rights and in the state const.i.tutions containing a similar provision, reference is made in express terms to prosecution in the courts. The framers of the Const.i.tution, however, left out all reference to the courts. If, as const.i.tutional writers have generally a.s.sumed, the framers of the Const.i.tution intended by this provision to protect members of Congress against prosecution in the courts, it is difficult to understand why they should have omitted what had been the main feature and purpose of this provision, not only in the original Bill of Rights, but also in the state const.i.tutions copying it and in the Articles of Confederation. If what they had in mind was the danger of prosecution in the state or Federal courts, why should they have changed completely the wording of this provision by omitting all reference to the very danger which they wished to guard against?

The checks thus far described were intended as a subst.i.tute for king and aristocracy; but to make the Const.i.tution acceptable to the people, additional checks were required which the English government did not contain. The division of authority in the latter was solely between different cla.s.ses or orders, each of which was supposed to represent interests co-extensive with the realm. But while the power of each cla.s.s was thus limited, their joint and combined action was subject to no const.i.tutional check or limitation whatever. Any policy upon which they agreed could be enforced in any part of the realm, since the Const.i.tution, recognizing no local interests, gave no political subdivision a negative on the acts of the whole. The government of England, then, was purely _national_ as opposed to _federal_, that is to say the general government was supreme in all respects and the local government merely its creature.

This was the type of government for which Hamilton contended and which a majority of the delegates in the Federal Convention really favored. But the difficulty of securing the adoption of a Const.i.tution framed on this plan made it impracticable. To merge the separate states in a general government possessing unlimited authority would place all local interests at the mercy of what the people regarded as virtually a foreign power. Practical considerations, then, required that the Const.i.tution should in appearance at least conform to the _federal_ rather than to the _national_ type. Accordingly the powers of government were divided into two cla.s.ses, one embracing only those of an admittedly general character, which were enumerated and delegated to the general government, while the rest were left in the possession of the states. In form and appearance the general government and the governments of the various states were coordinate and supplementary, each being supreme and sovereign within its respective sphere. By this arrangement any appearance of subordination on the part of the state governments was carefully avoided; and since the state retained sovereign authority within the sphere a.s.signed to it by the Const.i.tution, the protection of local interests was thereby guaranteed. This understanding of the Const.i.tution seems to have been encouraged by those who desired its adoption and was undoubtedly the only interpretation which would have found favor with the people generally. Moreover, it was a perfectly natural and logical development of the theory of checks. If the President, Senate, House of Representatives and the Supreme Court were coordinate branches of the general government, and each therefore a check on the authority of the others, a like division of authority between the general government as a whole on the one hand, and the states on the other, must of necessity imply a defensive power in the state to prevent encroachment on the authority reserved to it. And since the government was _federal_ and not _national_, and since the state government was coordinate with and not subordinate to the general government, the conclusion was inevitable that the former was a check on the latter in exactly the same way that each branch of the general government was a check on the others.

This view of the Const.i.tution while allowed to go unchallenged for the time being to secure its adoption by the states, was not accepted, however, by those who framed it. For although in outward appearance the Const.i.tution did not provide for a national government, it at least contained the germs out of which a national government might in time be developed. The complete supremacy of the general government was one important result which the members of the Convention desired to bring about. Several plans were proposed by which this supremacy should be expressly recognized in the Const.i.tution. Both Randolph and Charles Pinckney favored giving a negative on state laws to Congress.[133]

Madison suggested giving it to the Senate. Hamilton, as we have seen, proposed giving an absolute veto to the governors of the various states, who were to be appointed by the President. According to another plan this power was to be given jointly to the President and the judges of the Supreme Court. All of these proposals to give the general government in express terms the power to annul state laws were finally rejected by the Convention, no doubt for the reason that they indicated too clearly their intention to subordinate the state governments. But while declining to confer this power in express terms, it was not their intention to withhold it. As in the case of the judicial veto on congressional legislation, they relied upon control over the Const.i.tution after its adoption to accomplish their end.

The omission from the Const.i.tution of any provision which clearly and unequivocally defined the relation of the general government to the governments of the various states was not a mere oversight. The members of the Convention evidently thought that to ensure the acceptance of the Const.i.tution, it was necessary to submit it in a form least likely to excite the opposition of the states. They expected by controlling its interpretation to be able after its adoption to mold it into a shape more in accord with their own views. The choice of this method, though the only one by which it was possible to attain their end, involved consequences more serious and far-reaching than they imagined. It paved the way for a const.i.tutional struggle which lasted for three-quarters of a century and finally convulsed the country in the greatest civil war of modern times. Had the Const.i.tution in so many words expressly declared that the Federal judiciary should have the power to annul state laws, or had it given this power to some other branch of the Federal government in accordance with some one of the suggestions above mentioned, and had it at the same time expressly withheld from the states the power to negative acts of Congress, there would have been no room for doubt that the general government was the final and exclusive judge in all cases of conflict between Federal and state authority.

Such a provision would have left no room for the doctrine of state rights, or its corollary--the power of a state to nullify a Federal law.

It would have settled the question of Federal supremacy beyond the possibility of controversy by relegating the states to a strictly subordinate place in our political system. But inasmuch as the Const.i.tution contained no provision of this character it left the states in a position to defend their claim to coordinate rank with the general government.

The adoption of the Const.i.tution was merely the first step in this program of political reconstruction. To carry through to a successful issue the work undertaken by the Federal Convention, it was necessary that the same influences that dominated the latter should also control the new government by which the Const.i.tution was to be interpreted and applied. How well they succeeded may be seen in the impress left upon our system by the twelve years of Federalist rule which followed its adoption. During this period the Const.i.tution was in the hands of those who were in full sympathy with the purpose of its framers, and who sought to complete the work which they had begun.

In shaping the policy of the government during this period the influence of Hamilton was even more p.r.o.nounced than it had been in the Federal Convention. As Secretary of the Treasury he proposed and brought about the adoption of a financial policy in harmony with his political views.

Believing that the government must have the confidence of the conservative and well-to-do cla.s.ses, he framed a policy which was calculated to gain their support by appealing to their material interests. The a.s.sumption by the general government of the state debts incurred during the Revolutionary war was designed and had the effect of detaching the creditor cla.s.s from dependence upon the governments of the various states and allying them to the general government. The protective tariff system also had far-reaching political significance.

It was expected to develop an influential manufacturing cla.s.s who would look to the general government as the source of their prosperity, and who would therefore support its authority as against that of the states.

To unite the moneyed interests and identify them with the general government was one of the reasons for chartering the bank of the United States. The internal revenue system which enabled the general government to place its officials in every community and make its authority directly felt throughout all the states was a political as well as a financial measure. It was prompted partly by the desire to appropriate this field of taxation before it was laid hold of by the states and partly by the desire to accustom the people to the exercise of Federal authority. All these measures which were formulated by Hamilton and carried through largely by his influence were intended to lay a solid basis for the development of national as opposed to state authority.

It was the purpose of the Const.i.tution as we have seen to establish the supremacy of the so-called upper cla.s.s. To consolidate its various elements and bring the government under their control was the aim of the Federalist party.

That such a policy should have aroused much popular opposition and provoked bitter criticism was to be expected. Criticism, however, was especially irritating to those who accepted the Federalist theory of government. For if the few had a right to rule the many, then the latter, as a matter of course, ought to treat the former with respect; since otherwise the power and influence of the minority might be overthrown.

The Alien and Sedition laws by which the governing cla.s.s sought to repress criticism were the logical culmination of this movement to limit the power of the majority. This attempt, however, to muzzle the press and overthrow the right of free speech instead of silencing the opposition only strengthened and intensified it. It merely augmented the rising tide of popular disapproval which was soon to overwhelm the Federalist party.

The Const.i.tution, as we have seen, did not expressly subordinate the states. Although framed by those who wished to make the general government supreme, it contained no provision which could not be so construed as to harmonize with the widely accepted doctrine of state rights. It was represented by its framers and understood by the people generally as dividing sovereignty between the general government on the one hand and the states on the other. Within the province a.s.signed to the state, it was to be supreme, which would naturally seem to imply adequate const.i.tutional power in the state to defend itself against federal aggression. This view of the Const.i.tution, if not actually encouraged, was allowed to go unchallenged in order not to endanger its adoption.

The Const.i.tution is and was intended to be rigid only in the sense that it effectually limits the power of the majority. The founders of our government were not averse to such changes in the system which they established as would promote or at least not interfere with their main purpose--the protection of the minority against the majority. Indeed, they intended that the Const.i.tution as framed should be modified, amended and gradually molded by judicial interpretation into the form which they desired to give it, but which the necessity of minimizing popular opposition prevented them from accomplishing at the outset.

Amendment by judicial interpretation was merely a means of conferring indirectly on the minority a power which the Const.i.tution expressly denied to the majority. No hint of this method of minority amendment, however, was contained in the Const.i.tution itself. But, on the contrary, any such view of the Const.i.tution would have been negatived by the general theory of checks and balances which, consistently applied, would limit the power of the minority as well as that of the majority. It was not reasonable to suppose that the Const.i.tution contemplated placing in the hands of the minority a power which it was so careful to withold from the majority. In fact, the language of the Const.i.tution warranted the belief that it was intended as a means of checking the general government itself by protecting the states in the exercise of all those powers not expressly denied to them. And since the Const.i.tution, as we have seen, merely marked off the limits of federal and state jurisdiction, without specifying how the general government on the one hand, or the state government on the other, was to be kept within the territory a.s.signed to it, it was natural to suppose that it contemplated giving to each the same means of protecting itself against the encroachments of the other.

Accordingly, when Congress appeared to overstep the limits which the Const.i.tution set to its authority, the states naturally looked for some means of making the checks imposed upon the general government effective. True, the Const.i.tution itself did not specify how this was to be done; but neither could one find in it any provision for enforcing the limitations on the authority of the states. The general government, however, had supplied itself with the means of self-protection by calling into existence the veto power of the Federal judiciary. This made the checks upon the authority of the states operative. But how were those imposed by the Const.i.tution on the general government itself to be enforced? Not by the Federal government or any of its organs, since this would allow it to interpret the Const.i.tution to suit itself. If the general government should have the right to interpret and enforce the const.i.tutional limitations on the powers of the states, it would for a like reason follow that the states should interpret and enforce the const.i.tutional limitations on the authority of the general government itself. To carry out in good faith what appeared to be the purpose of the Const.i.tution, _i.e._, to limit the authority of the general government as well as that of the states, it would seem to be necessary to make each the judge of the other's powers. It would devolve then on the state governments to keep the general government within the bounds which the Const.i.tution set to its authority.

This could be accomplished, however, in no other way than by a veto on such acts of the general government as, in the opinion of the state, exceeded its const.i.tutional authority. Those who believed in a federal as opposed to a national government and who therefore wished to enforce the const.i.tutional checks on the general government, were irresistibly impelled toward the doctrine of nullification as the sole means of protecting the rights of the states.

As Von Holst says, "Calhoun and his disciples were not the authors of the doctrine of nullification and secession. That question is as old as the Const.i.tution itself, and has always been a living one, even when it has not been one of life and death. Its roots lay in the actual circ.u.mstances of the time, and the Const.i.tution was the living expression of these actual circ.u.mstances."[134]

Madison, in _The Federalist_, refers in a vague and indefinite manner to the power of a state to oppose an unjustifiable act of the Federal government.

"Should an unwarrantable measure of the Federal government," he says, "be unpopular in particular states ... the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance, and perhaps refusal, to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarra.s.sments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the Federal government would hardly be willing to encounter."[135]

Again he says, "The state government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other."[136]

It is doubtful whether Madison, in writing the pa.s.sages above quoted, had in mind any thing more than a general policy of opposition and obstruction on the part of the states. He certainly intended, however, to convey the idea that under the proposed Const.i.tution the states would have no difficulty in defending their const.i.tutional rights against any attempted usurpation at the hands of the Federal government. We can trace the gradual development of this idea of state resistance to Federal authority until it finally a.s.sumes a definite form in the doctrine of nullification.

"A resolution [in the Maryland legislature] declaring the independence of the state governments to be jeopardized by the a.s.sumption of the state debts by the Union was rejected only by the casting vote of the speaker. In Virginia the two houses of the legislature sent a joint memorial to Congress. They expressed the hope that the funding act would be reconsidered and that the law providing for the a.s.sumption of the state debts would be repealed. A change in the present form of the government of the union, pregnant with disaster, would, it was said, be the presumptive consequence of the last act named, which the house of delegates had formally declared to be in violation of the Const.i.tution of the United States."[137]

The general a.s.sembly of Virginia in 1798 adopted resolutions declaring that it viewed "the powers of the Federal government ... as limited by the plain sense and intention of [the Const.i.tution] ... and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted, ... the states ... 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 authority, rights, and liberties appertaining to them." These resolutions were drawn by Madison who had now come to oppose the strong centralizing policy of the Federalists.

A more explicit statement of this doctrine is to be found in the Kentucky Resolutions of 1798 which declared "that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; ... and that whenever the general government a.s.sumes 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; that this 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 Const.i.tution, 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_."

The Kentucky resolutions of 1799 go one step farther and give definite expression to the doctrine of nullification. They declare "that the several states who formed that instrument [the Const.i.tution], being sovereign and independent, have the unquestionable right to judge of the infraction; and, _that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy_."