Sovereign Defense of Faith and Freedom (Part II)

Albert Gallatin characterized the American Revolution as ‘a monument’ to the right of resisting unconstitutional laws. Indeed, before Americans became American, they were loyal British subjects—loyal that is, until king and Parliament subverted the venerated British constitution and with it, their sacred rights as freeborn Englishmen. Now sovereignty is the supreme power of governance, and the British also believed that sovereignty resided with Parliament, binding subjects everywhere to any law that Parliament passed. The Colonists, on the other hand, believed sovereignty for all “internal” matters—particularly the power to tax, resided in each colonial legislature. This “Whig” view of the constitution, rights and sovereignty continued in the American Republic, though in slightly altered context. American Independence from Great Britain left them 13 sovereign States, which fairly quickly formed a loose confederation under the Articles of Confederation to resist British subjugation. After the War for Independence, these States sought a stronger, more effectual union together. The Constitution was the sole source of jurisdiction for the national government under this circumstance. States preceded the national government, in other words. The ratification of the Constitution by the people of the several states at respective, special constitutional conventions brought about the national government according to its terms.
The terms, however, were not unlimited. Powers not expressly delegated to the national government were retained by the states. During the years of the early Republic, it was not uncommon to hear of “internal” matters vis-à-vis the federal government. In a letter to James Monroe in 1797, Thomas Jefferson observed that “it is of immense consequence that the States retain complete authority as possible over their own citizens,” rather than bowing to “foreign jurisdiction”—meaning the national jurisdiction of the federal government! One year later, both he and James Madison were moved by the political overreach and centralization of power under High Federalists in office, to write resolutions for the Kentucky and Virginia legislatures. The Resolves, as they were called, formed the basis for State resistance to unconstitutional acts, specifically to the Alien and Sedition Acts. They helped shape political opinion, which led to the peaceful ‘Revolution of 1800’ bringing Jefferson and his Democratic-Republican Party to power. While the Alien and Sedition Acts simply expired, the Resolves bolstered for a time, the limitations clearly intended and placed on the federal government by the Bill of Rights. That is to say, the basis of rationale in the Resolves, as well as the implicit threat of state action against overreach, helped contain the federal government to its role and function under the Constitution.
The Framers had after all, created a system in which the people of the several States delegated specific powers and were left with two governmental sovereigns: the National and the State governments. Both levels of government were sovereign in their respective orbits; hence “federalism” was thought to be an ingenious device that precluded a tyranny or despotism from emerging out of any branch of the national government. Madison explained in the Virginia ratifying convention, that the “powers of the federal government are enumerated; it can only operate in certain cases; it has legislative powers on defined and limited objects, beyond which it cannot extend its jurisdiction.” The Bill of Rights furthermore, which includes the Tenth Amendment [“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people”], was passed in 1791 to codify Madison’s stated interpretation, as well as to cement the support of former Anti-Federalists, who felt the Constitution needed this explicit guarantee of rights which the national government was then bound in writing to respect. For Jefferson, the Tenth Amendment became “the foundation of the Constitution.” The States retained legislative sovereignty over most objects of lawmaking except for foreign policy and trade. Further, as Jefferson reasoned, the same States retained a right to judge constitutionality and measures of redress for themselves. Otherwise, the national government would be left the final and exclusive judge of its own, delegated powers! Even now, it seems absurd that it should be. For as John Taylor wrote in his Construction Construed and Constitutions Vindicated, “a jurisdiction limited by its own will, is an unlimited jurisdiction.” If the federal government has, in history since that time, assumed an unlimited jurisdiction, then it must be said that it is not the handiwork of the Founders. Neither is it the Original Intent of the Constitution and certainly not Jefferson’s, or Madison’s intent that the States should let it rest.
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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article loosely based on William J. Watkins, Jr., Reclaiming the American Revolution (Palgrave Macmillan, 2004), chapters 2-4. Email: wes@wesriddle.com.