Whether Jefferson was right or wrong in the position which he took, he maintained it with superb self-confidence and aplomb. For the moment, the Federalists had everything their own way. They carried the election. Hamilton’s oft-anticipated “crisis” seemed to have arrived at last. But Jefferson coolly waited till the storm should blow over. “Our countrymen,” he wrote to a friend, “are essentially Republicans. They retain unadulterated the principles of ’76, and those who are conscious of no change in themselves have nothing to fear in the long run.”
And so it proved. The ascendency of the Federalists was soon destroyed, and de[pg 107]stroyed forever, by the political crimes and follies which they committed; and especially by the alien and sedition laws. The reader need hardly be reminded that the alien law gave the President authority to banish from the country “all such aliens as he should judge dangerous to the peace and safety of the United States,”—a despotic power which no king of England ever possessed. The sedition act made it a crime, punishable by fine and imprisonment, to speak or write anything “false, scandalous, and malicious,” with intent to excite against either House of Congress or against the President, “the hatred of the good people of the United States.” It can readily be seen what gross oppression was possible under this elastic law, interpreted by judges who, to a man, were members of the Federal party. Matthew Lyon, of Vermont, ventured to read aloud at a political meeting a letter which he had received expressing astonishment that the President’s recent address to the House of Representatives had not been answered by “an order to send him to a mad-house.” For this Mr. [pg 108]Lyon was fined $1,000, and imprisoned in a veritable dungeon.
These unconstitutional and un-American laws were vigorously opposed by Jefferson and Madison. In October, 1798, Jefferson wrote: “For my own part I consider those laws as merely an experiment on the American mind to see how far it will bear an avowed violation of the Constitution. If this goes down, we shall immediately see attempted another act of Congress declaring that the President shall continue in office during life, reserving to another occasion the transfer of the succession to his heirs, and the establishment of the Senate for life.”
Jefferson also prepared the famous Kentucky resolutions, which were adopted by the legislature of that State,—the authorship, however, being kept secret till Jefferson avowed it, twenty years later. These much-discussed resolutions have been said to have originated the doctrine of nullification, and to contain that principle of secession upon which the South acted in 1861. [pg 109]They may be summed up roughly as follows: The source of all political power is in the people. The people have, by the compact known as the Constitution, granted certain specified powers to the federal government; all other powers, if not granted to the several state governments, are retained by the people. The alien and sedition laws assume the exercise by the federal government of powers not granted to it by the Constitution. They are therefore void.
Thus far there can be no question that Jefferson’s argument was sound, and its soundness would not be denied, even at the present day. But the question then arose: what next? May the laws be disregarded and disobeyed by the States or by individuals, or must they be obeyed until some competent authority has pronounced them void? and if so, what is that authority? We understand now that the Supreme Court has sole authority to decide upon the constitutionality of the acts of Congress. It was so held, for the first time, in the year 1803, in the case of Marbury v. Madison, by Chief [pg 110]Justice Marshall and his associates; and that decision, though resisted at the time, has long been accepted by the country as a whole. But this case did not arise until several years after the Kentucky Resolutions were written. Moreover, Marshall was an extreme Federalist, and his view was by no means the commonly accepted view. Jefferson scouted it. He protested all his life against the assumption that the Supreme Court, a body of men appointed for life, and thus removed from all control by the people, should have the enormous power of construing the Constitution and of passing upon the validity of national laws. In a letter written in 1804, he said: “You seem to think it devolved on the judges to decide the validity of the sedition law. But nothing in the Constitution has given them a right to decide for the executive more than the executive to decide for them. But the opinion which gives to the judges the right to decide what laws are constitutional and what not—not only for themselves in their own sphere of action, but for the legislature [pg 111]and executive also in their spheres—would make the judiciary a despotic branch.”[3]
In the Kentucky resolutions, Jefferson argued, first, that the Constitution was a compact between the States; secondly, that no person or body had been appointed by the Constitution as a common judge in respect to questions arising under the Constitution between any one State and Congress, or between the people and Congress; and thirdly, “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.” It was open to him to take this view, because it had not yet been decided that the Supreme Court was the “common judge” appointed by the Constitution; and the Constitution itself [pg 112]was not explicit upon the point. Moreover, the laws in question had not been passed upon by the Supreme Court,—they expired by limitation before that stage was reached.
It must be admitted, then, that the Kentucky resolutions do contain the principles of nullification. But at the time when they were written, nullification was a permissible doctrine, because it was not certainly excluded by the Constitution. In 1803, as we have seen, the Constitution was interpreted by the Supreme Court as excluding this doctrine; and that decision having been reaffirmed repeatedly, and having been acquiesced in by the nation for fifty years, may fairly be said to have become by the year 1861 the law of the land.
Jefferson, however, by no means intended to push matters to their logical conclusion. His resolutions were intended for moral effect, as he explained in the following letter to Madison:—
“I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave [pg 113]the matter in such a train that we may not be committed absolutely to push the matter to extremities, and yet may be free to push as far as events will render prudent.”
As to the charge that the Kentucky Resolutions imply the doctrine of secession, as well as that of nullification, it has no basis. The two doctrines do not stand or fall together. There is nothing in the resolutions which implies the right of secession. Jefferson, like most Americans of his day, contemplated with indifference the possibility of an ultimate separation of the region beyond the Mississippi from the United States. But nobody placed a higher value than he did on what he described “as our union, the last anchor of our hope, and that alone which is to prevent this heavenly country from becoming an arena of gladiators.”