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January 9, 2010

Kentucky's Answer to Unconstitutional Federal Actions

By Daniel Baker
There is indeed nothing new under the sun. The answer to the federal government's current expansion far beyond the limits set by the Constitution lies in Thomas Jefferson's response to the Alien and Sedition Acts in 1798. The Sedition Act blatantly ran afoul of the First Amendment by forbidding any speech against the government. It stated in part.

And be it further enacted, That if any person shall write, print, utter or publish ... writings against the government of the United States, ... then such person, being thereof convicted ... shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Over the course of the past two hundred and twenty-two years, we have forgotten many of the basic principles that were fresh in Thomas Jefferson's mind when he drafted the Kentucky Resolutions of 1798. These resolutions lay out the proper response to the federal government's unconstitutional actions and are quoted in the sections below. 

Foremost of the forgotten principles is the fact that the states were fully autonomous before uniting under a contract known as the Constitution. Each state voluntarily gave up a portion of its sovereignty, but never surrendered it completely, in joining the United States. Thus, every state is a party to the Constitution, with the other states as co-parties. Here are some excerpts from Jefferson's Kentucky Resolutions:

1. 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 a compact under the style and title of a Constitution ... 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.

The Constitution is the equivalent of a partnership agreement, with the states as partners and the federal government as managers and employees. Take for instance Benny and Gerald, who wish to form a partnership selling ice cream. Each agrees to contribute certain amounts of money and time and set up a framework for the duties of managers and employees to run the business. The managers and employees work for Benny and Gerald, not the other way around. Let's assume that the partnership agreement gives the manager the authority to set prices for ice cream and conduct sales as he sees fit. If he sets prices too low so that Benny and Gerald lose money, they will fire the manager; however, they must accept the loss because they gave the manager the authority to set the prices. However, if he decides to give half of the sales price of the ice cream to his favorite charity, then he has stolen from Benny and Gerald, who in turn have a right to demand the money back from the manager and take it out of his paycheck.

8.  Resolved ... 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 ... to nullify of their own authority all assumptions of power by others within their limits.

The proper remedy for unconstitutional acts conducted by the federal government is to nullify those acts within the borders of the states finding them unconstitutional. This right belongs to the states based solely on the fact that they are parties to a contract. They owe a duty to abide by the contract only to the other states; they owe no duty to abide by anything outside the contract.

8.  Resolved ... that with [the States] alone ... [are] parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely a creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified.

The final word concerning what is and what is not acceptable under a contract goes to the parties of the contract. The Supreme Court is a creation of the Constitution; it is not a party. So then if Congress, for instance, passes the Fairness Doctrine and the president signs it, then the great state of Missouri has the right, regardless of any Supreme Court decisions one way or the other, to declare the Fairness Doctrine unconstitutional and thus null and void within her borders. Missouri would have to answer to her sister states, but not to anyone else.

1.  Resolved ... 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 powers 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.


8.  Resolved ... that without this right, [the States] would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.


The answer to the vast expansion of the federal government is that the states need to be willing to nullify unconstitutional laws. Federalists shouldn't worry so much about changing the federal government to respect state sovereignty as they should about working within their own states to throw off unconstitutional acts of the federal government. If the states cannot nullify unconstitutional acts, then the federal government is able (and willing) to do whatever it wants, with no real constitutional limits in place. Our country is then only a few steps away from despotism, with the final arbiter of what is "constitutional" as the supreme dictator.
on "Kentucky's Answer to Unconstitutional Federal Actions"