Madison and Jefferson (63 page)

By late October, after reviewing Jefferson’s resolutions, Madison had prepared a separate text for Virginia. The resolutions were presented to the two state legislatures by Breckinridge and Taylor, respectively, so as to shield the actual authors. Secrecy was maintained; it would be a good many years before Madison and Jefferson were publicly identified with the texts.
⁶⁸
Despite their well-laid plans, rumors circulated almost immediately that
Jefferson was behind both the Kentucky and Virginia Resolutions. Boston’s
Columbian Centinel
reported: “The disorganizing Resolutions introduced into the Legislature of
Virginia
, have passed.—And—Mr. Jefferson has arrived in
Philadelphia
.”
⁶⁹

Jefferson’s underlying principle was laid out in the opening sentence of the Kentucky Resolutions: the United States was “not united on the principle of unlimited submission to the general government.” As equal parties to the federal compact, the individual states had delegated certain enumerated powers to the federal government, while reserving to themselves “the residuary mass of right to their own self-government.” If the federal government tried to exercise “undelegated powers,” its actions were immediately to be considered “unauthoritative, void, and of no force.” Therefore, the power to decide what those delegated powers were could not reside in the federal government; each state had “an equal right to judge for itself.”
⁷⁰

The theory had much in common with the Declaration of Independence. Recall that Jefferson conceived of the Declaration as a kind of divorce petition, in which the natural rights of one of the parties within the British-American union (the colonies) had been violated repeatedly. The condition of the states in the federal Union was similar to that of the colonies in that they were united by compact with a central authority. In ratifying the Constitution, each state had given its consent, but as with any compact or contract, it could be annulled or amended. A breach of contract, a violation of its specific terms—in this case the federal government’s use of an unauthorized power—meant the state could refuse to abide by that part of the contract which the other party had twisted and corrupted.
Nullification
was a form of veto power, normally reserved for the executive. But as Jefferson saw it, that power now belonged to each of the individual states and was to be exercised solely within its jurisdiction.
⁷¹

Jefferson had retreated to his earlier thinking on the division between federal and state functions, which he had sketched out to Madison in 1786. At that time he had said: “To make us one nation as to foreign concerns, and keep us distinct in domestic ones, gives the outline of the proper division of power between the general and particular governments.”
⁷²
Now he was insisting that each state warranted a powerful form of redress: to declare any law null and void that compromised its ability to protect the rights of its citizens. Because the states had a natural right to nullify on their own authority, any state that lost its autonomy sacrificed itself to the dominion of another. Like an individual, a state was either free and independent or in a state of submission. There could be no middle ground.
⁷³

For Jefferson, a strict division between federal and state authority had to be preserved. Any trespass of this rigid boundary was a slippery slope. The Alien and Sedition laws were the beginning of a long train of abuses that would lead from deportation of the “friendless alien” to persecution of the average citizen. The central government could do anything it wanted if the states did not have some check on its authority. It appeared to him that if Congress could claim any power, or transfer its authority to the president or any other person, then that person, as “the accuser, counsel, judge and jury,” could turn “suspicion” into “evidence,” reduce anyone to an “Outlaw,” and place anyone under the “absolute dominion of one man.” In short, without a check, the United States could become a dictatorship.

Part of this thinking was personal. Certain Federalists were looking for any excuse to turn Jefferson into an “Outlaw.” He hoped to make Virginia his sanctuary, a legal fortress, his protection from their predatory grasp. He wanted the Constitution to be a straightjacket, capable of undermining any attempt at a power grab by government officials. Constitutional checks had no appreciable force in the current political environment, or as Jefferson put it: “The barrier of the constitution thus swept away from us, no rampart remains against the passions and the power of a majority in Congress.” The states’ last defense was to nullify illegitimate laws.

Madison began the Virginia Resolutions by repeating some of Jefferson’s ideas. He agreed that the federal government was based on a compact “to which the states are parties.” As the Constitution was limited by “enumerated powers,” if the government engaged in 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 duty bound, to interpose for arresting the progress of the evil.” After three opening paragraphs, all nodding in Jefferson’s direction, Madison diverged somewhat. His constitutional argument focused on “forced constructions” of the charter—Hamilton’s misreading of the “necessary and proper” clause that pointed toward a consolidation of the states into “one sovereignty.”

He framed his opposition to the Alien and Sedition Acts differently than Jefferson did. The Alien Act violated the separation of powers, he said, by transferring both judicial and legislative powers to the executive. This gave the president the judicial power to set up hearings to judge whether a person could be deported; the president alone determined proof of guilt without having to follow any congressional guidelines on what constituted a danger to the public safety.
⁷⁴

While the Sedition Act relied on an undelegated power, Madison considered
its more egregious transgression to be that of violating what was “expressly and positively forbidden” in the First Amendment to the Constitution. Quoting from the Virginia Ratifying Convention, he reiterated that freedom of conscience was the “guardian of every other right.” By showing an “indifference” to this guaranteed freedom, the Sedition Act was a “mark of reproachful inconsistency and criminal degeneracy.” But he stopped short of calling for nullification. He wished instead for other states to join with Virginia in declaring the acts unconstitutional; they would offer a united front and publicly espouse a common interpretation of the “rights reserved to the States, respectively, or to the people.”
⁷⁵

The point is that Madison’s text was a limited, not a total, endorsement of Jefferson’s principles. He intentionally avoided use of the words
null, nullify
, or
nullification
. He substituted the word
interpose
, which, according to Dr. Johnson’s
Dictionary
, meant “to mediate, to act between two parties; to put in by way of interruption.” These are gentler terms than what Jefferson opted for, and they opened the door to negotiation. To nullify was to annul—to declare that the government never had this power in the first place.

Madison’s solution was intentionally more ambiguous. He proposed no coherent legal strategy; he did not explain precisely what the states must do to arrest the “evil” before them. He refused to weigh in on the power of an individual state to curb the excesses of federal power, which was so central to Jefferson’s strategy. For Madison, the states—the collective body of the states—would take the appropriate (but unspecified) action.
⁷⁶

Although Madison and Jefferson diverged, several state legislatures failed to draw a distinction between the two sets of resolutions. These states criticized both for advocating “the
dangerous doctrine
, that the State Governments are the constitutional judges of the Acts or Laws of the Federal Government.” Madison’s subtle word choices did little to quell the larger fear of disunion that was seen in the call to grant states “unwarrantable power” to interpret federal laws.
⁷⁷

After just a few days of debate, both houses in Kentucky passed the resolutions in November 1798. Breckinridge made changes to Jefferson’s draft, dropping the language of nullification. Then the resolutions were forwarded to Kentucky’s two U.S. senators and its two congressmen, who were instructed to work for the repeal of the Alien and Sedition Acts in Congress. Jefferson’s staunchest allies in Kentucky understood that the protest should be aimed at Congress, even if Jefferson intended for Congress to be bypassed and for the state to take matters into its own hands.
The Virginia Assembly passed its version of the resolutions on December 21, 1798.
⁷⁸

After all was said and done, not a single state rallied to Virginia’s side. Nine northern states renounced the resolutions, and only one southern state, North Carolina, bothered to respond at all (and still its Senate would not approve the resolutions).
⁷⁹
Changing the debate, “Peter Porcupine” lashed out at the Virginians for their hypocrisy in claiming to be “actuated by a
love of liberty
” when they “live on the sweat of
slaves
.” A Connecticut critic brought up Jefferson’s history of slinking away from manly engagement by calling the resolutions “cowards huffs,” empty threats spun by the “insidious sophistry of the
Mazzei
tribe of philosophers.” Since the Virginia Resolutions were followed by a bill for arming the state’s militia, some accused Richmond of preparing to use the threat of military force to intimidate other states. Madison’s and Jefferson’s enemies flatly declared the “Ancient Dominion” to be in opposition to the Union.
⁸⁰

Rather than help the Republicans’ cause, the Kentucky and Virginia Resolutions served only to stiffen the Federalists’ resolve. Fisher Ames of Massachusetts assailed Madison’s surrogate for the Virginia Resolutions, John Taylor of Caroline: “Virginia, excited by crazy Taylor, is fulminating its manifesto against the federal government.” Former president Washington was so disturbed that he appealed to Patrick Henry to reenter politics in order to turn back the tide. In a letter marked “confidential,” he bemoaned “the endeavors of a certain party among us, to disquiet the Public mind with unfounded alarms.” No longer even mentioning the names of former intimates Madison and Jefferson, he expressed regret that Virginia had “taken the lead” in protesting “every act of the Administration.”

Like the most inveterate of Federalist propagandists, Washington accused those whom he would not name but called generically “this Party” of preferring “the interest of France to the Welfare of their own Country.” Pages into his anguished letter to Henry, the “First of Men” brought his list of charges to an end and opened a new paragraph: “I come now, my good Sir, to the object of my letter—which is—to express a hope, and an earnest wish, that you wd come forward at the ensuing Elections (if not for Congress, which you may think would take you too long from home) as a candidate for representation, in the General Assembly of this Commonwealth.”
He flattered Henry: “Your weight of character and influence … would be a bulwark against … dangerous Sentiments.”
⁸¹

Henry, so long out of government, could not say no to George Washington. He refused to stand for Congress, given his declining—what he called “very indifferent”—health, but he did agree to serve in the Virginia Assembly. He despised the Republicans as much as Washington did for the disrespect they had shown to the government, but as a devout Christian, he cast his fears in religious language. “The Foundations of our Morality and Government” had been sacrificed to “French principles,” Henry said, because “those who nickname themselves ‘Democrats’ ” were turning their backs on “Truths which concern our Happiness in the World to come, alike with our Happiness in this.”
⁸²

Many others would launch public attacks on Jefferson and the Republicans for their dangerous critique of religion, but the well-developed network of Republican papers fought back. “The spirit of party has converted the elegant reasoning of Mr. Jefferson against
religious establishments
into a blasphemous argument against
religion
itself,” wrote one supporter in the
Baltimore Telegraph
, an opinion picked up by newspapers in other parts of the country. And the
Bee
, of New London, Connecticut, proclaimed: “How ridiculous and contemptible do our newspaper scribblers of the present day appear in their endeavours to detract from the literary and moral character of Mr. Jefferson!”
⁸³

The Alien and Sedition Acts complicated life for Federalists much as the Terror had complicated life for Republicans a few years before. John Marshall, a favorite of Washington’s, claimed that he would have voted against the Alien and Sedition Acts though they were constitutionally sound; he authored a pamphlet on the subject. Washington had urged Marshall (in addition to Henry) to run for Congress and now had to be disabused of his belief that Marshall had adopted, undiluted, the High Federalist creed. Like President Adams, John Marshall did his own thinking.

Writing from Philadelphia, Adams explained to his predecessor why he had decided on a new approach to the French. Talleyrand himself had assured him that a decent reception awaited his next envoy. This did not prevent Adams from launching into a rant about the Republicans for having urged good Franco-American relations all along: “I wish the babyish and womanly blubbering for Peace may not necessitate the Conclusion of a Treaty that shall not be just nor very honourable.” Also from Philadelphia, two days later, Secretary of State Pickering wrote Washington of the Hamiltonians’ annoyance with Adams for agreeing to take up diplomacy
with the despicable French. “The Jacobins alone are pleased,” Pickering alleged. “The
honor
of the country is prostrated in the dust.”
⁸⁴