Madison, in The Federalist, refers in a vague and indefinite manner to the power of a state to oppose an unjustifiable act of the Federal government.
"Should an unwarrantable measure of the Federal government," he says, "be unpopular in particular states ... the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance, and perhaps refusal, to co-operate with the officers of the union; the frowns of the executive magistracy of the state; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any state, difficulties not to be despised; would form in a large state, very serious impediments; and where the sentiments of several adjoining states happened to be in unison, would present obstructions which the Federal government would hardly be willing to encounter."[135]
Again he says, "The state government will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other."[136]
It is doubtful whether Madison, in writing the passages above quoted, had in mind any thing more than a general policy of opposition and obstruction on the part of the states. He certainly intended, however, to convey the idea that under the proposed Constitution the states would have no difficulty in defending their constitutional rights against any attempted usurpation at the hands of the Federal government. We can trace the gradual development of this idea of state resistance to Federal authority until it finally assumes a definite form in the doctrine of nullification.
"A resolution [in the Maryland legislature] declaring the independence of the state governments to be jeopardized by the assumption of the state debts by the Union was rejected only by the casting vote of the speaker. In Virginia the two houses of the legislature sent a joint memorial to Congress. They expressed the hope that the funding act would be reconsidered and that the law providing for the assumption of the state debts would be repealed. A change in the present form of the government of the union, pregnant with disaster, would, it was said, be the presumptive consequence of the last act named, which the house of delegates had formally declared to be in violation of the Constitution of the United States."[137]
The general assembly of Virginia in 1798 adopted resolutions declaring that it viewed "the powers of the Federal government ... as limited by the plain sense and intention of [the Constitution] ... and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted, ... the states ... have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining within their respective limits, the authority, rights, and liberties appertaining to them." These resolutions were drawn by Madison who had now come to oppose the strong centralizing policy of the Federalists.
A more explicit statement of this doctrine is to be found in the Kentucky Resolutions of 1798 which declared "that the several states composing the United States of America are not united on the principle of unlimited submission to their general government; ... and that whenever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that this 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 parties 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."
The Kentucky resolutions of 1799 go one step farther and give definite expression to the doctrine of nullification. They declare "that the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of the infraction; and, that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy."
The first clear and unequivocal statement of the doctrine of nullification may be traced to Jefferson. In the original draft of the Kentucky resolutions of 1798, which he wrote, it is asserted that where the Federal government assumes powers "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 (casus non foederis) to nullify of their own authority, all assumptions of power by others within their limits."[138] This was omitted, however, from the resolutions as finally adopted, although included in substance, as we have seen, in the Kentucky resolutions of 1799.
Jefferson's authorship of the original draft of the Kentucky resolutions of 1798 is made the basis of Von Holst's contention that he was the father of the doctrine of nullification. This, however, is something of an exaggeration. He is more accurate when he refers to the doctrine as being as old as the Constitution itself and the outgrowth of the circumstances of the time. The prevalent conception of the state as a check upon the Federal government derived support, as we have seen, from the efforts of the framers of the Constitution themselves to give it an interpretation that would remove as far as possible the obstacles to its ratification by allaying the fears and jealousy of the states. The idea that the state government could oppose and resist an unconstitutional exercise of authority by the Federal government was widely accepted as a general principle, although little attention had been given to the practical application of the doctrine. Jefferson merely gave definite form to what had been a more or less vague conception by showing how the constitutional checks upon the Federal government could be made effective.