Friday, August 29, 2014

The Kentucky Resolutions of 1798, Part II: Jefferson and the Constitution

Of the various aspects of the Kentucky Resolutions that make them such an interesting object of study, chief among them is the way the author’s relationship with the Constitution shaped what, among the values and principles it enshrined, he felt were particularly worth preserving. This in turn moulded how he viewed the Alien and Sedition Acts, and from what angle of attack he chose to critique them.

Though he is rightly considered among the most influential of the American Founding Generation, Jefferson was not present in Philadelphia for the drafting of the Constitution, and neither did he take part in any aspect of its ratification. Serving in those years as the United States Minister to France, he thus tended to approach the document with a slightly more jaundiced eye than many of his contemporaries. This sense of distance in many ways coloured how he viewed its essential character and purpose. Likewise the actions he undertook as President in the years 1801-1809 casts some of his words in the Resolutions in a rather interesting light, though that’s a subject for a later post.

 In essence, the Kentucky Resolutions serve to outline and illustrate an embryonic form of the strict-constructionist interpretation of the United States Constitution. In brief, this is a method of interpreting the Constitution that attempts to stay as true to the original text as possible, with a minimum of assumption or expansion. Strict-interpretation was one of the key positions regularly expressed by the fledgling Republican faction, and became a cornerstone of the subsequent Democratic Party. And the Resolutions were one of the most well-known expressions of perhaps the first successful organized protest movement in post-Revolutionary American history. They provide insight into the war of words that was waged in 1790s America between the Federalists and Republicans by revealing the intellectual front-lines of their conflict over power and influence in government and among the people. At the same time, they also provide specific insight into Thomas Jefferson’s political priorities as they existed at the end of the 18th century, and his particular view of the necessary character of American government. At times his arguments are selfless, even noble, and at times they are manipulative and cynical. Regardless, they are always Jefferson, and can be relied upon to represent his earnest belief when and where he inscribed them.

As to what he inscribed, the Resolutions are relatively straightforward in their form and style. Divided into nine clauses, each beginning with the word “Resolved,” they include a preamble that attempts to explain the purpose of the overall exercise, a series of grievances, and a conclusion that calls for further action from prospective readers. As a declaration formally adopted by the Kentucky state legislature they are adorned with the names of certain officers of the assembly as well as the date of their passage through the two respective houses. Their author’s name, meanwhile, is conspicuously absent. Perhaps because of this desire for anonymity, the Resolutions are rather unlike many of Jefferson’s other written works in how business-like they seem to be. Largely avoiding the philosophical expansiveness that in many ways characterizes Jefferson’s style, they instead possess a rather meticulous, almost prosecutorial quality. The majority of the nine clauses contain compact arguments, clearly-presented evidence, and the strong, albeit repetitive, conclusion that the Alien and Sedition Acts are, “altogether void, and of no force.”

This, in itself, is a noteworthy phrase. Frequently identified with what later came to be known as nullification, it was meant by Jefferson to signify the unconstitutional nature of the offending Federalist-backed laws. Because the Alien and Sedition Acts explicitly violated certain clauses of the Constitution they were inherently unlawful, or so he attempted to communicate. About this idea there are several things worth noting. One is that the now-accepted method of determining a law’s constitutionality, judicial review, had yet to clearly emerge by 1798. Indeed, it was not until 1803 when the case Marbury v. Madison came before the Court that Chief Justice John Marshall put the still-novel and much-discussed procedure into use. Before that time certain state courts had taken it as their duty to determine the constitutionality of state laws, and debates had taken place at the Philadelphia Convention of 1787 which seemed to indicate that many of the Framers envisioned a similar power as belonging to the federal judiciary. That being said, the matter was not yet settled in 1798, and though many would ultimately come to oppose Jefferson’s interpretation of constitutional review his suggestion was not completely beyond consideration.     

Perhaps one of the reasons that Jefferson’s formulation of constitutional review was widely rejected is the rather expansive way he seemed to characterize it. Rather than leave the task to a single body, such as the Supreme Court that later assumed the responsibility, he believed that it was the duty of all the members of the “federal compact” (the individual states) to engage in the process. This meant, presumably, that any one of the states could declare at any time that a given law was in violation of the Constitution. Simple enough, but what then? Could a single state invalidate a law, or would it take a majority of the states? And if so would it take a simple majority (50% +1) or a 2/3 majority? With no single authority holding the final say, how would the process of determining a law’s constitutionality function? The potential for abuse and uncertainty abounds, and this too possibly reveals something of Jefferson’s intent. 

As expressed in Jefferson’s Resolutions, nullification is a very vague idea. It is not discussed at length or elaborated upon. The procedure for rendering a law “void and of no force” is not explained in the slightest, and indeed the declaration itself seems to have been intended as the final word on the matter. I would submit that this was because Jefferson did not have any kind of formal procedure in mind, but rather intended that his provocative conclusion would simply gain the attention of his readers. That the phrase “altogether void and of no force” appears no less than six times throughout the relatively brief text of the Resolutions would seem to indicate Jefferson’s desire to impress upon his readers the gravity of the issue before them. As he conceived it, the laws under consideration were not just ill-considered, ill-conceived, or in need of modification, but were completely and fundamentally invalid. In addition to being a canny politician Jefferson was also skilled in rhetoric, and in the science of capturing his readers’ attention. This was he almost certainly trying to do in his repetition of the same assertive phrase, for there seems to be little actual substance behind it.

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