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The States as Final Interpreters - James McClellan, Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government [1989]

Edition used:

Liberty, Order, and Justice: An Introduction to the Constitutional Principles of American Government (3rd ed.) (Indianapolis: Liberty Fund, 2000).

About Liberty Fund:

Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


The States as Final Interpreters

Among the three branches of the Federal government, therefore, it is generally the case that the Supreme Court acts as final interpreter of the Constitution. Does the Court’s dominance in constitutional interpretation apply with equal force of State supreme courts? To State legislatures? To State governors? These issues seem to be settled nowadays, but during the first one hundred years of constitutional government in the United States they were a continuing source of disagreement and debate. From 1787 down to the Civil War, the nation was preoccupied with questions of State sovereignty and the nature of the Union. State challenges to Federal power were the common order of the day, almost the theme song, it would seem, of American politics in the early Republic.

From a reading of the Convention documents, The Federalist, and the Constitution, it was by no means clear what kind of Union the Framers had designed. The Federalist party, favoring an expansive or nationalistic interpretation, pointed to the Preamble of the Constitution as proof that sovereignty resided in “We the People,” not “We the States.” The several States, said Federalist leaders such as John Marshall, had surrendered their sovereignty to the national government. The Jeffersonian Republican-Democrats, favoring a narrow or States’ Rights interpretation, argued that the Union was a compact of States, each of which had retained the essential attributes of sovereignty. The Preamble refers to the “People” rather than the “States,” they countered, because at the time of the Federal Convention it would have been premature to speak for all of the States. Rhode Island had not sent any delegates to the Convention, and there was considerable uncertainty at the time whether all of the States would ratify the Constitution. There were elements of truth to both sides of the argument, of course, because ultimate sovereignty had been reserved neither to the “people” as such nor to the States alone, but to those who ratified the Constitution—“the States and the people thereof.”

The sentiment for State sovereignty and States’ Rights was a powerful force throughout the Union, but as time wore on it became increasingly sectional—North against South. The “irrepressible conflict” over the issue of slavery contributed substantially to this polarization, but there were other differences—cultural and economic—which contributed significantly to sectional estrangement. The first major dispute actually involved freedom of speech and press when members of the Republican Party, led by Thomas Jefferson and James Madison, challenged the constitutionality of the Alien and Sedition Acts. Passed by a Federalist-controlled Congress in 1798, the Alien and Sedition Acts were designed to limit the influence of political radicals, particularly newspaper editors and pamphleteers, who were espousing French revolutionary doctrines and allegedly encouraging subversive activities. The Federalists, alarmed by the military aggression of revolutionary France and the atrocities committed in the name of “Liberty, Equality, and Fraternity,” hoped through this legislation to prevent the spread of French radicalism to American shores.

Known collectively as the Alien and Sedition Acts, these measures consisted of four laws. The first three, directed in reality against French citizens, sought to limit the right of aliens to acquire U.S. citizenship. They authorized the President to expel aliens suspected of “treasonable or secret machinations against the government” and to apprehend them in case of war. The fourth law, outlawing seditious libel, made it a Federal crime to utter or print “false, scandalous or malicious” statements against the Federal government, either house of Congress, or the President, or to bring them into disrepute, stir up sedition, excite against them “the hatred of the good people of the United States,” or encourage “any hostile designs of any foreign nation against the United States.”

In response to the Alien and Sedition Acts, the States of Virginia and Kentucky passed resolutions declaring the Acts unconstitutional. The Virginia Resolutions of 1798 were drafted by James Madison and introduced in the Virginia legislature by John Taylor of Caroline. The Kentucky Resolutions, written by Thomas Jefferson (also of Virginia), were introduced in the Kentucky legislature by John Breckinridge.

Madison and Jefferson objected to the Alien and Sedition Acts on the grounds that they usurped the reserved powers of the States. Congress had no delegated power, they argued, over aliens residing under the jurisdiction and protection of State laws. By authorizing the President to expel such persons “without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without defense, [and] without counsel,” this legislation also denied persons their liberty without due process of law and their procedural rights under the Fifth and Sixth Amendments.

Objections to the Sedition Act stemmed from the fact that the Congress had no authority under the First Amendment to regulate speech and press, and Federal tribunals therefore had no jurisdiction over cases involving “libels, falsehoods, [or] defamation.” The authors of the Kentucky and Virginia Resolutions did not challenge the constitutionality of the statute because it limited freedom of speech and press, therefore, but because it invaded the reserved powers of the States. It was the right of the States to determine the scope and meaning of these freedoms. As the Tenth Amendment made clear, the States had retained “to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom. …”

Taken together, the Kentucky and Virginia Resolutions served as the well-spring for the development of the State sovereignty theory of the Union, a theory that became the point of reference for political and legal debate until 1865, when it was officially put to rest with the defeat of the Confederacy. The doctrines of Interposition, Nullification, and Secession that southern writers, lawyers, and politicians employed to justify resistance to Federal laws were derived from the Resolutions of ’98.

The doctrine of Interposition, articulated by Madison in the Virginia Resolutions, suggested that State officials had the right to “interpose” themselves between the Federal government and the people to protect the latter, and that such interposition was necessary to prevent the enforcement of oppressive laws. “[I]n case of a deliberate, palpable, and dangerous exercise of other powers not granted by the said compact,” wrote Madison, “the States, who are parties thereto, have the right and are in duty bound to interpose for arresting the progress of the evil.”

Going a step further, Jefferson argued in the Kentucky Resolutions that nullification by the States was the proper remedy for unconstitutional acts of Congress. The Federal government, he said, cannot be the judge of its own powers. The States are “sovereign and independent,” and for this reason “have the unquestionable right” to determine whether Federal laws are constitutional. The “rightful remedy,” he concluded, is “a nullification … of all unauthorized acts done under the color” of the Constitution. Later generations, led by John C. Calhoun of South Carolina, took these arguments to the conclusion that any State could nullify Federal laws or secede from the Union if necessary, since the Union was a voluntary compact of States that had retained their individual sovereignty.

From time to time State legislatures may and do express their views on constitutional questions in the form of resolutions and petitions to Congress. Though strongly worded, the Kentucky and Virginia Resolutions amounted to no more than a formal protest, based on the claim that the States have a right to offer their own interpretations of the Constitution and Federal laws. Neither Kentucky nor Virginia interfered with the enforcement of the Alien and Sedition Acts. The Kentucky Resolution acknowledged, in fact, “That although this commonwealth, as a party to the Federal compact, will bow to the laws of the Union, yet it does at the same time declare, that it will not now, or ever hereafter, cease to oppose in a constitutional manner, every attempt … to violate that compact.” Like Congress and the President, the Kentucky and Virginia legislatures, therefore, were merely claiming that they too had a right to interpret the Constitution, not that they had the right to be its final interpreter.

In one memorable instance, as we noted, a State supreme court did challenge the Supreme Court of the United States on a question of constitutional interpretation. This was the case of Martin v. Hunter’s Lessee in which Spencer Roane, the Chief Justice of Virginia’s highest court, argued that his court was not necessarily bound by Supreme Court precedents. Roane did not argue, however, that State courts were the final interpreters of the Constitution.

States’ Rightists obeyed the decisions of the Supreme Court, but they continued to reject the Court’s theory of the nature of the Union all the way down to the spring of 1865, when General Robert E. Lee, leader of the Confederate Army, surrendered at Appomattox, Virginia, to General Ulysses S. Grant, head of the Union forces. Thus in the final phase of this lengthy constitutional debate the issue was resolved on the battlefield, against the States. In Texas v. White (1869), the Supreme Court later declared that the States never possessed the right to secede from the Union, which is “indissoluble,” and that the State of Texas, like the other States of the Confederacy, had, from a constitutional standpoint, never left the Union. Strictly speaking, concluded the Court, the Confederate States had been in a state of insurrection during the Civil War, and had not achieved sovereignty or independence in a legal sense.

Although the Interposition, Nullification, and Secessionist doctrines were southern in origin, it should not be overlooked that there were faithful adherents to these principles of interpretation throughout the Union. To be sure, the first serious political movement toward secession occurred in New England at the Hartford Convention of 1815. Prominent New England Federalists, representing Massachusetts, Connecticut, Rhode Island, Vermont, and New Hampshire, convened in the city of Hartford, Connecticut, to air their grievances and consider remedial action. The Report and Resolutions adopted by the Convention reflected deep dissatisfaction with the policies of the Jeffersonian Republicans, the administration of President Madison and the War of 1812, and the dominant influence of the southern States in national affairs. The Hartford delegates complained about patronage, the Judiciary Act of 1801 abolishing certain Federal district courts, “the easy admission of naturalized foreigners to places of trust, honor and profit,” the anti-British and pro-French stance of the Republican Party, and “the admission of new States into the Union … [that] has destroyed the balance of power which existed among the original States, and deeply affected their interest.” Above all, they objected to the wartime commercial policies of the Republicans, which were injurious, they believed, to New England needs and interests.

To correct these problems, they proposed the adoption of seven constitutional amendments. Failing in that, they were prepared to consider more drastic action, and hinted at a possible withdrawal from the Union. If, said the Report, they were unsuccessful in getting the changes they wanted, “it will, in the opinion of this Convention, be expedient for the legislatures of the several States to appoint delegates to another Convention to meet in Boston.” When commissioners of the Convention arrived in Washington to present their Resolutions, however, they decided to abandon their mission after learning that the War of 1812 was over. The Hartford Convention thus came to nothing, and the New England States thereafter became reconciled to the Union.

The several States, notwithstanding their claims, have thus never established themselves as final interpreters of the Constitution, even to the point of secession. Like Congress and the President, their primary interpretive role, once the Supreme Court has spoken on the issue, has been to offer their own interpretations as mere recommendations, objections, or expressions of opinion.