Many people feel that there is no hope in standing up to a tyrannical federal government. This despair is understandable, but unproductive. We can find hope in the knowledge that many of the federal government’s creators never intended for it to be the sole interpreter of the Constitution. While many sources can be compiled to support this claim, the response by two states to a series of bills passed in 1798 known as the Alien and Sedition Acts offers a clear and compelling argument.
The Alien and Sedition Acts were clearly unconstitutional, a violation of the 1st Amendment and Article I. Kentucky and Virginia were two states that stood up to this unconstitutional overreach of the federal government by adopting resolutions in opposition to the Acts. In the Virginia resolution, James Madison declared:
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.
…the General Assembly doth solemnly appeal to…the other states, in confidence that they will concur with this commonwealth in declaring…that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each…in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
Both Madison, the author of the Virginia Resolution, and Thomas Jefferson, who authored the Kentucky Resolutions, were clear in their belief the states had a right and duty to declare these laws unconstitutional and therefore refuse to comply. They did not believe that the sole defender and interpreter of the Constitution was the Federal Government. “…To take from the States all the powers of self-government and transfer them to a general and consolidated government,” Kentucky’s legislature said, “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.”
The Kentucky Resolution made clear that these unconstitutional laws were “not law, but [are] altogether void, and of no force.”
Think of the political punch that statement alone introduces into the perpetual battle of chicken fought between the states and their creation, the federal government. While it is claimed that the Supremacy Clause of the Constitution overrides any state’s desire to act differently than they are mandated by the federal government, this view is completely inaccurate. Indeed, as Jefferson and Madison declared, and as many of the founding generation agreed, the creature cannot exceed the creator; the states serve as ultimate and independent arbiters of what is or is not constitutional, and in cases where the Supreme Court of the United States fails in its duty to uphold the Constitution (something which has occurred on many, many occasions), it falls to the states to act in defense of their mutual constitutional contract.
It’s time to revive these “Principles of ’98” and encourage the Utah Legislature to fulfill their duties as defender of the 10th Amendment, and thus the entire Constitution. When Congress passes an unconstitutional law, we should support the Constitution by opposing it and boldly declaring it “not [a] law, but [] altogether void, and of no force.”
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