“Should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional, . . . the Constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power.”
In the decades immediately following American independence, the challenge of constructing a national government fell upon the first generations of elected representatives. The new national constitution, the Constitution of the United States, had been written and ratified by 1788, but a decade later, many of its provisions remained untested. The founding document articulated the structure of the three government branches, their powers, and the limits placed upon them. While it reserved most powers of governance for the states, the Supremacy Clause (article 6, clause 2) explicitly stated that the Constitution was the supreme law of the land; resolution of any conflicts arising between the states and the national government would be resolved through federal court interpretation of the Constitution, and in this process, the Supreme Court would have the last word. Challenging the Supremacy Clause in 1799, the Virginia and Kentucky legislatures asserted the right of states to declare laws unconstitutional. In reaction, the Massachusetts legislature offered the following counterresolution.
In 1799, the United States of America was a young nation and its future was anything but certain. Independence had been declared a quarter of a century earlier, and it was won when the British government formally recognized US sovereignty by treaty in 1783. When the much-celebrated US Constitution was ratified a few years later in 1788, the nation temporarily achieved consensus for moving forward. Yet, until the Constitution could be fully enacted and all its provisions tested, the union of the various states remained tentative. The new American experiment in republican governance had many hurdles to overcome during the period historians call the Early Republic (1789–1820s).
When euphoria surrounding independence and the ratification of the Constitution gave way to the practical challenges of governing, the difficulty of sustaining national consensus became obvious. The emergence of two political parties challenged the general unity that had characterized American leadership since the 1770s. While elected politicians who identified themselves as Federalists dominated the first post-ratification decade, an opposition party was growing and would soon displace the Federalists. The Democratic-Republicans, led by Thomas Jefferson and James Madison, gained strength as they articulated alternative political approaches to crucial issues for the infant republic: building the economy and a banking system, constituting the federal court system, and establishing foreign relations. To some contemporary observers, the developing political battles between the dominant Federalists and the rising Democratic-Republicans left the young nation vulnerable.
By the late 1790s, the two parties were bitterly divided over foreign policy issues. In Europe, the French Revolution had begun a decade earlier, and initially many Americans celebrated it. Many believed that their own rejection of tyranny in 1776 had influence French citizens to do the same. However, France’s experiment with republican governance was to be short lived, and as it lurched into a state of war with the other European powers, America’s two political parties demonstrated competing loyalties to France and England. Federalists saw the nation’s future, like its past, tied to England; they were frightened by the chaos of revolutionary France, and they saw an alliance with Britain as most beneficial for their fragile republic. Democratic-Republicans, on the other hand, remained suspicious of British intent and hoped that the temporary violence in France would soon foster government reforms based on republican principles.
Amid interparty tensions over US relations with Europe, particularly France, the Federalist-dominated Congress passed and President John Adams signed the Alien and Sedition Acts in 1798. In attempting to curb the influences of French revolutionaries on citizens of the United States, these measures aggressively asserted legal controls over resident aliens and curbed freedom of the press. For Democratic-Republicans, such controls went too far; their subsequent efforts to nullify the acts presented one of the earliest challenges to the Supremacy Clause of the US Constitution.
Since its inception in the seventeenth century, the Legislature of the State of Massachusetts has been formally called the General Court of Massachusetts. During the late colonial period, this elective assembly strongly influenced American resistance to British authority. Gathering in the 1760s, 1770s, and 1780s, the General Court debated the issues that ultimately propelled American independence. Repeatedly disbanded by royal governors and the Parliament, the General Court frequently operated outside the law as a provisional and revolutionary body. Though the General Court originally held legislative, judicial, and administrative responsibilities, it was confined to legislative functions by the Massachusetts Constitution of 1780. As is the case with most state legislatures, it is a bicameral body formed by a senate and a house of representatives.
Massachusetts was a Federalist stronghold for the first few decades after independence, and the makeup of the General Court reflected the state’s party identification. In the second half of the 1790s, when John Adams (a Massachusetts native) held the US presidency but the Federalist Party was on the decline nationally, the Massachusetts legislature assumed a high-profile role in challenging Democratic-Republican ascendency.
Feeling threatened by developments in revolutionary France, Adams and his party had championed the Alien and Sedition Acts of 1798. The Federalist dominance of Congress had assured the passage of these acts, which provoked an outcry from Democratic-Republicans who looked to the Constitution for a means to nullify them. Kentucky and Virginia argued the Democratic-Republican opposition to the Alien and Sedition Acts, and they made a formal constitutional case to the nation via legislative resolution. Massachusetts, along with several other states, responded in kind, rejecting the Virginia-Kentucky position with counterresolutions of their own. Issued in February 1799, the Massachusetts counterresolution was an assertion of Federalist philosophies and authority. Like all legislation passed in both houses of the General Court, it bears the signature of the president of the state Senate and the speaker of the House of Representatives.
In the early republic, the US national government took shape based on a blueprint articulated in the Constitution. The much-celebrated governing document had been written in a national convention beginning in 1787, and it was formally enacted the following year. With the election of the first Congress and the choice of George Washington for the presidency, the nation took crucial steps toward constructing the republic envisioned by the Framers (those who wrote and debated the Constitution in convention). Over the course of the next two centuries, successive generations would continue that work toward sustaining and strengthening the republic. While that work continues to this day, from a historical perspective it is clear that the greatest burden toward that end fell on those who engaged in formal politics in the early republic.
The US Constitution is a paper document. It defines the organizational forms, powers, and limits of the three branches of federal government; it is explicit about the rights of individuals; it reserves significant powers for the various states; and it clearly outlines the conditions under which it can be amended by the people. As a governing document, it has withstood continual challenge over time, and both its focus on limiting power and its functional longevity make it unique in the history of humankind. Today, the US Constitution is celebrated as a vehicle for maintaining popular consensus in a diverse nation. Flexible by design, the document has fostered the minimum level of such consensus necessary to keep the various states in union. While there have certainly been times when the Constitution appeared to be losing the support of the American people and the union was seriously threatened, the document was usually strengthened under challenge. It remains the supreme law of the United States.
For the first generation of US politicians, basic questions lingered after the ratification of the Constitution was achieved and electoral processes began. Would the document function as planned? Would the new system balance competing interests and foster respect for republican principles? Would the system of checks and balances be enough to prevent abuse by one of the three branches? Further, would the relationship between the states and the federal government be grounded in mutual respect and compromise? Perhaps most important with regard to federal-state relations, would the states ultimately accept the supremacy of the Constitution and the judgments of federal courts in constitutional debates?
In 1798, the passage of the Alien and Sedition Acts produced the most serious challenge to constitutional authority during the early republic. With a two-party system emerging in the nation, developments an ocean away, in revolutionary France, became the catalyst for divisive politics. In 1797, George Washington exited the national stage and John Adams assumed the presidency. Though France had been an important ally in America’s struggle for independence, both Washington and Adams had grown nervous about the violent turn the French Revolution took during the 1790s. Their unwillingness to support French revolutionaries provoked strong criticism from Democratic-Republicans and their leaders, Thomas Jefferson and James Madison. That Washington had negotiated peace with Britain through the Jay Treaty was also a major source of friction for the opposition party. Democratic-Republicans could not fathom an alliance with their former mother country, and they believed the United States had an obligation to support France in transitioning to republican rule. As they knew from their own recent experience in war and peace, such a process could be very messy. It could even be bloody; however, they were committed to seeing it through. Federalists, on the other hand, believed France had descended into chaos and mob rule. They sharply differentiated their republican principles of representative and virtuous government from France’s version of democracy, which seemed to be nothing more than majority or mob rule. Federalists tended to come from the wealthier groups in the United States, and as such, they were particularly concerned about the disregard for private property they saw in French mobs and their revolutionary leadership.
After his inauguration, Adams made overtures to France in an effort to ease international and domestic tension, but his attempts failed. In what is referred to as the XYZ Affair, three agents of the revolutionary French government (agents X, Y, and Z) tried to extract a multimillion-dollar bribe from the United States as a condition of negotiating with the Adams administration. Worse, when the United States refused to comply, the agents threatened to extend their revolution across the Atlantic. Whether the European nation could have mounted an attack and invaded the United States is much in doubt, but the threat was intimidating for the young and fragile republic. Leaking the French demands and threats to the American public, the Federalists stoked outrage. As more people rejected any alliance with France, Adams moved to defend the nation. He was not anxious to go to war, but he was determined to prepare for it. The Alien and Sedition Acts emerged in this context.
The three Alien Acts were passed by the Federalist-dominated Congress and signed by President Adams. Each of the three aimed to eliminate the threat of foreign—and especially French—agitators in the United States. Collectively, they extended the term of residency required for gaining American citizenship from five to fourteen years; provided for the arrest, detention, and deportation of all aliens from countries in a state of war with the United States; and gave the president wide latitude to deport immigrants or visitors suspected of being dangerous.
The Sedition Act was more controversial, because it applied to US citizens. This act made it a crime to resist laws passed by Congress or actions taken by the president. Curtailing the freedom of the press as we understand it today, the act made the publication of certain statements critical of the US president or Congress a misdemeanor punishable with fines and imprisonment.
While the intent of the Sedition Act was to eliminate the airings or publication of falsehoods and slander, identifying statements that were intentionally untrue was problematic. With the two-party system developing in a climate of bitterness and the courts largely in the hands of Federalist appointees, determining what constituted falsehoods, slander, and defamation became an extremely subjective process. Democratic-Republicans had little faith in the judicial system’s ability to negotiate these delicate constitutional issues. As the first round of arrests proceeded under the Sedition Act, with high-profile newspaper publishers and members of Congress targeted, the controversy became a rallying point for Democratic-Republicans.
Seizing the moment, Thomas Jefferson and James Madison collaborated on dissenting resolutions that they set before the Kentucky and Virginia legislatures. Recognizing that they were unlikely to have success in the Federalist-dominated court system, they suggested an alternative reading of the Constitution. Both resolutions asserted the power of state legislatures to declare an act of Congress unconstitutional. Certainly, some in these states’ legislatures were in full support of the Jefferson-Madison interpretation; others, however, signed on to the resolution simply to protest what they saw as an abuse of constitutional power by the Federalists.
In 1799, when the General Court of Massachusetts issued its counterresolution to the statements by Virginia and Kentucky, the US Constitution was just a decade old. The federal court system was in its infancy; its body of rulings based on constitutional interpretation was sparse. While in theory, the Constitution was the supreme law of the land, not enough precedent had been set by court rulings to build public consensus around that supremacy. Thus were Kentucky, Virginia, Massachusetts, and a handful of other states (who largely shared the position of the Massachusetts General Court) engaged in a crucial process; in their challenges and counter-challenges regarding the Constitution, they were demanding clarification of the document’s meaning.
Out of concern that national consensus might be lost, the Massachusetts legislature offered its counterresolution in order “to maintain that union of the several states, so essential to the welfare of the whole.” The General Court saw no ambiguity in the words of the Constitution with regard to the matter at hand. The right to determine the constitutionality of a law rested with the federal courts. While it loudly offers its opinion, it simultaneously reinforces its deference to the courts on constitutional challenges. Interpretation of law had been “exclusively vested by the people in the judicial courts of the United States” and not in state or national legislatures. To allow states interpretative latitude constituted a clear violation of the separation of powers. The legislatures of Virginia and Kentucky, the Massachusetts counterresolution argues, were simply wrong. If their assertion that states could nullify acts of Congress prevailed, the nation would soon dissolve. Allowing for variant interpretations of the governing document would reduce its authority and erase its power to bind the union. “Should the respectable state of Virginia persist in the assumption of the right to declare the acts of the national government unconstitutional . . . the Constitution would be reduced to a mere cypher, to the form and pageantry of authority, without the energy of power.”
Without power to balance competing interests in government and society, the Constitution and the republic would fail. Allowing interpretation of the document by so many elected assemblies throughout the country would certainly produce discord. In their counterresolution, the Massachusetts Federalists are appealing for the need to uphold constitutional measures designed to foster consensus. They remind Virginia, Kentucky, and those swayed by their arguments that the national government has been elected by the people. Citizens have “by a solemn compact” given authority to their national representatives to govern. If an abuse of that compact is evident, the courts are the appropriate venue for redress, not the legislature. They argue that the procedures that have been established should be followed.
In their counterresolution, the Federalist legislators of Massachusetts also take the opportunity to defend the Alien Acts signed by their president. In this regard, the counterresolution and the original Virginia and Kentucky resolutions should be framed against bitter interparty discourse over the French Revolution. The Federalists believed the French threat to the nation was real, and they justify the Alien Acts as measures of national defense. They argue that, “threatened with actual invasion,” the elected government is responsible for protecting the people “against internal, as well as external foes.” Because there existed in “the bosom of the country” thousands of foreign aliens, it seemed only logical to Federalists to establish legal measures for their removal under conditions of war. It was foolish to wait until an attack was launched before taking action. They suggest that if war is to be expected, based on the actions and statements of the French government, legislators should not wait until the “poniard ha[s] in fact been plunged”; until it is too late to prevent war, in other words.
The Federalists’ defense of the Sedition Act is no less forceful. In their counterresolution, they recognize that freedom of speech is guaranteed by the First Amendment, but they assert an important qualification on free speech: It is only the freedom to speak “truthfully” that is protected by the Constitution. Lies, falsehoods, and slander are afforded no protection. While the legislature leaves the question of the Sedition Act’s constitutionality to the courts to decide, it is confident that even if the act reaches a federal judge (which it never did), the Federalists’ interpretation will prevail. Constitutional protections, the General Court argues, are devised to extend “security for the rational use and not the abuse of the press.” As such, “legal restraint of those scandalous misrepresentations” of congressional or presidential action is both “wise and necessary.”
Through its response to the Virginia and Kentucky resolutions, the General Court of Massachusetts engaged in crucial national debates giving meaning to the US Constitution. As the balance of power shifted from Federalists to Democratic-Republicans, it was decided that the ultimate authority to decide constitutional questions—in this case the power of states to nullify acts of Congress—rested with the federal courts. Such early debates over the young courts’ authority ultimately led to a greater understanding of the division of powers in the United States. Across the centuries that followed, states have continued to challenge the findings of federal courts, but they most often seek redress through the court system itself. When such efforts fail, most follow a constitutional path and attempt judicial reform through the legislative process.
When the first Congress met and the first US president took his oath of office, no federal court system yet existed. This followed the design of the Constitution. Once elected, the two existing branches worked to constitute the third. In the interest of removing the judiciary branch from politics, the Framers of the governing document balanced responsibility for the selection and approval of federal judges between the executive and legislative branches. That presidential appointments had to be approved by legislators provided a safeguard against undue influence of one of the two branches over the courts.
In their concern over power struggles between the executive and legislative branches, however, the Framers did little to insulate the courts from party politics. As the first appointments were made to the federal bench, a Federalist-leaning president and a Federalist-dominated Congress controlled the processes. The Democratic-Republicans would not emerge as a viable opposition party until the late 1790s and would not assume control of the presidency or Congress until after 1800. Because of this, the federal courts of the early republic were heavily influenced by Federalist interpretations of the Constitution. As Federalism declined in popularity and as Federalist judges gradually left the bench, the courts were slowly transformed and began to reflect the ideologies of the opposition party. Two centuries later, party identities have changed, but party politics continue to have an impact on appointments to our courts; ideological transitions occur only in delayed fashion after one party cedes congressional majorities and/or the presidency to the opposition.
As compared to the early years of the republic, few today would question the constitutional authority of the federal courts to interpret laws and actions of the legislative and executive branches. In this regard, the Federalist perspective has prevailed. Still, interpretations by the federal court have often been and will likely continue to be criticized by some. Differing philosophies about constitutional principles, divergent opinions over the original intent of the Framers, and competing approaches in applying eighteenth-century principles to the present will most likely continue to result in disagreements over federal court decisions. These disagreements have historically resulted in the amending of the Constitution more than two dozen times. Yet, the basic structure of the document remains intact, as do the legislative procedures of the federal courts.
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