Principles of '98
Encyclopedia
The Principles of '98 refer to the American political position that individual states could judge the constitutionality of central government laws and decrees, and could refuse to enforce laws deemed unconstitutional. This refusal to enforce unconstitutional laws is generally referred to as "nullification
," but has also been expressed as "interposition
," i.e. the states’ right to "interpose" between the federal government and the people of the state. The principals were widely promoted in Jeffersonian Democracy
. Especially by the Quids, such as John Randolph of Roanoke
.
The term derives from the Virginia and Kentucky Resolutions written in 1798 by James Madison
and Thomas Jefferson
, respectively. This vocal minority of the traditional US "founding fathers" believed that if the central government was the exclusive judge of its limitations under the Constitution, then it would eventually overcome those limits and become more and more powerful and authoritarian. They argued that formal limiting devices such as elections and separation of power
would not suffice if the government could judge its own case regarding constitutionality. As Jefferson wrote, "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."
In contrast to this position, other founding fathers believed it is the responsibility of the federal judiciary, not the states, to determine whether Congress has acted consistently with the Constitution. In Federalist No. 78
, Alexander Hamilton stated that the federal courts are the natural and proper forum for determining such legal issues: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." In Federalist No. 80
, Hamilton rejected the idea that each state may apply its own interpretation of the Constitution: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed."
The Principles of '98 were not adopted by any other state. Seven state legislatures formally rejected the Kentucky and Virginia Resolutions, and three others expressed disapproval. Several of these states asserted that the federal judiciary, not the states, is the proper forum for interpreting the Constitution.
In 1803 the Marbury v. Madison
case established the principle of judicial review by the US Supreme Court, which continues to this day to be the overriding legal precedent in constitutional law.
Nevertheless versions of the Principles of '98 continued to be promoted by some parties during the early 19th century. Besides the original reaction to the Alien and Sedition Acts
, the Virginia and Kentucky Resolutions, nullification was discussed and cited by New England
states' courts and legislatures in reaction to the Embargo of 1807–1809 and later the War of 1812
.
Similarly, the Massachusetts General Court approved a committee report saying, "Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."
The South Carolina opposition to the Tariff of Abominations was also based on these principles, leading to the Nullification Crisis
.
Another prominent use of the Principles of '98 was in opposing the central government's Fugitive Slave Laws
, which forced people to aid and abet slavery, in particular the return of runaways.
This Wisconsin ruling was in part taken word for word from the Kentucky Resolutions of 1798. The Supreme Court, however, overruled the Wisconsin court in the case of Ableman v. Booth
(1859).
After the American Civil War
, the Jeffersonian party favoring decentralized democracy and states' rights
permanently lost favor, and Principles of '98 were largely forgotten. The US Supreme Court has remained de facto and de jure the final arbiter of constitutionality in the US government.
Jefferson's biographer Dumas Malone
argued that the Kentucky resolution might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold," the Alien and Sedition Acts would "necessarily drive these states into revolution and blood." Historian Ron Chernow says of this "he wasn't calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president." Jefferson "thus set forth a radical doctrine of states' rights that effectively undermined the constitution." Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. Historian Garry Wills
argued "Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure" The theoretical damage of the Kentucky and Virginia resolutions was "deep and lasting, and was a recipe for disunion". George Washington was so appalled by them that he told Patrick Henry that if "systematically and pertinaciously pursued", they would "dissolve the union or produce coercion". The influence of Jefferson's doctrine of states' rights reverberated right up to the Civil War and beyond. Future president James Garfield
, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".
Nullification
Nullification may refer to:* Nullification , a legal theory that a U.S. State has the right to nullify, or invalidate, any federal law that a state has deemed unconstitutional....
," but has also been expressed as "interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
," i.e. the states’ right to "interpose" between the federal government and the people of the state. The principals were widely promoted in Jeffersonian Democracy
Jeffersonian democracy
Jeffersonian Democracy, so named after its leading advocate Thomas Jefferson, is a term used to describe one of two dominant political outlooks and movements in the United States from the 1790s to the 1820s. The term was commonly used to refer to the Democratic-Republican Party which Jefferson...
. Especially by the Quids, such as John Randolph of Roanoke
John Randolph of Roanoke
John Randolph , known as John Randolph of Roanoke, was a planter and a Congressman from Virginia, serving in the House of Representatives , the Senate , and also as Minister to Russia...
.
The term derives from the Virginia and Kentucky Resolutions written in 1798 by James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
and Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
, respectively. This vocal minority of the traditional US "founding fathers" believed that if the central government was the exclusive judge of its limitations under the Constitution, then it would eventually overcome those limits and become more and more powerful and authoritarian. They argued that formal limiting devices such as elections and separation of power
Separation of Power
Separation of Power is Vince Flynn's fourth novel, and the third to feature Mitch Rapp, an American agent that works for the CIA as an operative for a covert counterterrorism unit called the "Orion Team."-Plot summary:...
would not suffice if the government could judge its own case regarding constitutionality. As Jefferson wrote, "When all government, domestic and foreign, in little as in great things, shall be drawn to Washington as the center of all power, it will render powerless the checks provided of one government on another, and will become as venal and oppressive as the government from which we separated."
In contrast to this position, other founding fathers believed it is the responsibility of the federal judiciary, not the states, to determine whether Congress has acted consistently with the Constitution. In Federalist No. 78
Federalist No. 78
Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of the Federalist Papers. Like all of the Federalist Papers, it was published under the pseudonym Publius....
, Alexander Hamilton stated that the federal courts are the natural and proper forum for determining such legal issues: "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." In Federalist No. 80
Federalist No. 80
Federalist No. 80 is an essay by Alexander Hamilton and the eightieth of the Federalist Papers. It was published on June 21, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...
, Hamilton rejected the idea that each state may apply its own interpretation of the Constitution: "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed."
The Principles of '98 were not adopted by any other state. Seven state legislatures formally rejected the Kentucky and Virginia Resolutions, and three others expressed disapproval. Several of these states asserted that the federal judiciary, not the states, is the proper forum for interpreting the Constitution.
In 1803 the Marbury v. Madison
Marbury v. Madison
Marbury v. Madison, is a landmark case in United States law and in the history of law worldwide. It formed the basis for the exercise of judicial review in the United States under Article III of the Constitution. It was also the first time in Western history a court invalidated a law by declaring...
case established the principle of judicial review by the US Supreme Court, which continues to this day to be the overriding legal precedent in constitutional law.
Nevertheless versions of the Principles of '98 continued to be promoted by some parties during the early 19th century. Besides the original reaction to the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
, the Virginia and Kentucky Resolutions, nullification was discussed and cited by New England
New England
New England is a region in the northeastern corner of the United States consisting of the six states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut...
states' courts and legislatures in reaction to the Embargo of 1807–1809 and later the War of 1812
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...
.
Similarly, the Massachusetts General Court approved a committee report saying, "Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim."
The South Carolina opposition to the Tariff of Abominations was also based on these principles, leading to the Nullification Crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
.
Another prominent use of the Principles of '98 was in opposing the central government's Fugitive Slave Laws
Fugitive slave laws
The fugitive slave laws were laws passed by the United States Congress in 1793 and 1850 to provide for the return of slaves who escaped from one state into another state or territory.-Pre-colonial and Colonial eras:...
, which forced people to aid and abet slavery, in particular the return of runaways.
This Wisconsin ruling was in part taken word for word from the Kentucky Resolutions of 1798. The Supreme Court, however, overruled the Wisconsin court in the case of Ableman v. Booth
Ableman v. Booth
Ableman v. Booth, , is a case in which the Supreme Court of the United States held that state courts cannot issue rulings that contradict the decisions of federal courts, overturning a decision by the Supreme Court of Wisconsin....
(1859).
After the American Civil War
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
, the Jeffersonian party favoring decentralized democracy and states' rights
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...
permanently lost favor, and Principles of '98 were largely forgotten. The US Supreme Court has remained de facto and de jure the final arbiter of constitutionality in the US government.
Jefferson's biographer Dumas Malone
Dumas Malone
Dumas Malone was an American historian, biographer, and editor noted for his six-volume biography on Thomas Jefferson, for which he received the 1975 Pulitzer Prize for history...
argued that the Kentucky resolution might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold," the Alien and Sedition Acts would "necessarily drive these states into revolution and blood." Historian Ron Chernow says of this "he wasn't calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president." Jefferson "thus set forth a radical doctrine of states' rights that effectively undermined the constitution." Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. Historian Garry Wills
Garry Wills
Garry Wills is a Pulitzer Prize-winning and prolific author, journalist, and historian, specializing in American politics, American political history and ideology and the Roman Catholic Church. Classically trained at a Jesuit high school and two universities, he is proficient in Greek and Latin...
argued "Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure" The theoretical damage of the Kentucky and Virginia resolutions was "deep and lasting, and was a recipe for disunion". George Washington was so appalled by them that he told Patrick Henry that if "systematically and pertinaciously pursued", they would "dissolve the union or produce coercion". The influence of Jefferson's doctrine of states' rights reverberated right up to the Civil War and beyond. Future president James Garfield
James Garfield
James Abram Garfield served as the 20th President of the United States, after completing nine consecutive terms in the U.S. House of Representatives. Garfield's accomplishments as President included a controversial resurgence of Presidential authority above Senatorial courtesy in executive...
, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".
Further reading
- Gutzman, Kevin R. "A troublesome legacy: James Madison and `The principles of '98'," Journal of the Early Republic, Winter 1995, Vol. 15 Issue 4, pp 569-90