Reconceiving interpretive autonomy: insights from the Virginia and Kentucky resolutions.

• Author: Moore, Wayne D.

Judges are not only constitutional decisionmakers in the United States. It is necessary, therefore, to move beyond widespread preoccupation with the Constitution's judicial interpretation and enforcement. Judicial review is certainly an important practice in America, one closely identified with commitment to the rule of law. But excessive attention to issues surrounding judicial articulation of constitutional norms has obscured and distorted analysis of other, equally fundamental components of American constitutionalism. A variety of political actors in addition to judges have had pivotal roles in creating, sustaining and enforcing the supreme law.

Judges have, at times, been central players in conflicts over the character and scope of federal and state powers. From the late 1800s through 1937, for example, judges repeatedly invalidated exercises of national power in reliance on the Tenth Amendment's reservation of powers to the states.(1) Since the "constitutional revolution" surrounding the New Deal, however, judges and scholars have not typically regarded the Tenth Amendment as a formidable obstacle.(2) Certainly there are good reasons for thinking about whether recent cases, such as New York v. United States,(3) might foreshadow renewed judicial concern with limits on national authority;(4) but it would be wrong to assume that principles of federalism, including important forms of state autonomy, depend primarily on how judges exercise their powers.

The Virginia and Kentucky Resolutions of 1798 and 1799 provide contexts for examining problems of constitutional meaning and authority that are typically obscured by forms of analysis that center on the Constitution's judicial enforcement. The legislatures of two states passed resolutions that condemned the federal government's making and enforcing the Alien and Sedition Acts of 1798. These two states' actions raised serious questions about the character and reach of the United States Constitution and powers delegated by it, the location of sovereignty within America, arrangements of interpretive authority among institutions of federal and state government, and relationships among powers of governmental officials and rights and powers of the people at large.

The Kentucky and Virginia Resolutions, along with drafts and responses to them, are especially valuable because they demonstrate how problems of interpretive authority cut across other forms of normative disagreement. Controversy over the Alien and Sedition Acts posed two main sets of constitutional issues: whether the Alien and Sedition Acts were valid, and whether efforts by two states to oppose them were valid. Much may be gained from paying attention not only to how various persons were interpreting the Constitution and what positions they took on these two issues, but also to whose positions were constitutionally authoritative. Accordingly, the focus of this essay is relationships among federal and state interpretive prerogatives.

The Virginia and Kentucky Resolutions were radical when written: They dealt with foundational issues of American constitutionalism and called into question opposing conceptions of constitutional meaning and authority. Over the past two centuries, these documents have become even more radical (or have become radical in a new way): They identify interpretive options that have become increasingly obscured by current ways of thinking. It is useful to consider seriously whether these radical perspectives warrant contemporary ratification as part of America's fundamental law.

1. THREE FORMS OF PROTEST

   The Alien and Sedition Acts of 1798 resulted from, and exacerbated, divisions between the Federalist and Republican parties that formed during the Republic's early years.(5) John Adams, a leading Federalist, defeated Thomas Jefferson, a leading Republican, in the presidential election of 1796. Jefferson became Vice President pursuant to electoral rules that were in effect at the time.

   In anticipation of a possible war with France, the predominantly Federalist Congress enacted four laws in 1798, known popularly as the Alien and Sedition Acts. Two of these were especially controversial: the Alien Friends Law ("An Act concerning Aliens"), which allowed the President to order deportation of aliens; and the Sedition Law, which made seditious libel a criminal offense. The latter was directed primarily toward Republican critics of the Federalist administration. (Federalists sought to characterize the Republicans as sympathetic with the French and with movements underlying the 1789 French Revolution.) Federal judges, who were also predominantly Federalist, were more than willing to enforce the acts, particularly against Republicans and their alien allies.(6)

   Jefferson was in a peculiar predicament. He opposed the laws and their enforcement, but he was not in a good position to challenge federal authority openly. The Vice President thus turned to one of the "external" checks contemplated by the authors of The Federalist Papers: state legislatures.(7) He secretly drafted a set of resolutions for adoption by the North Carolina legislature, which he sought to use as a vehicle for voicing opposition to the Alien and Sedition Acts.

   Jefferson's messenger, Wilson Cary Nicholas, apparently gave the draft to John Breckinridge of Kentucky for consideration by that state's legislature instead of North Carolina's. The Kentucky legislature approved some but not all of the resolutions in Jefferson's draft. (The draft, though written for adoption by North Carolina's legislature, is now generally identified as Jefferson's draft of the Kentucky Resolutions.) As approved, the Kentucky Resolutions of 1798 took a more modest position than Jefferson's draft on the state legislature's powers of protest.

   The same year, 1798, Virginia's legislature approved resolutions that had been drafted by Madison, who had joined Jefferson in opposing the Federalists (with many of whom, ironically, Madison had been allied in debates over the Constitution's ratification). In addition, the following year, 1799, the Kentucky legislature endorsed a variation of the stronger claims of state authority that had been in Jefferson's draft but deleted from the resolutions approved by that state's legislature in 1798. These various drafts, along with responses to them and subsequent analyses, identify at least three forms of state protest against federal governmental actions: nullification, reversal, and interposition. I deal with each in turn.(8)

   A

   In his draft of the Kentucky Resolutions, Jefferson claimed that the states had authority to nullify acts of Congress, at least for some purposes and in some contexts, whether or not the Supreme Court concurred that the acts were unconstitutional. He distinguished "cases of an abuse of the delegated powers" from cases in which "powers are assumed which have not been delegated." Apparently referring to federal electoral processes, he claimed that a "change by the people" was the "constitutional remedy" for the former abuse. But his resolutions declared that if the federal government usurped powers other than those delegated to it by the Constitution, "a nullification of the act [was] the rightful remedy."(9)

   Jefferson's position on interpretive authority, therefore, paralleled his conception of constitutional boundaries. He characterized the Constitution as a "compact" among "the several States composing the United States of America." He claimed that the states "constituted a general government for special purposes" and "delegated to that government certain definite powers." Accordingly, he argued that "whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force."(10)

   Jefferson ran together his analysis of the states' and the people's prerogatives. Part of this imprecision may be attributed to the fact that his principal objective was to articulate bounds of federal power rather than to distinguish the people's rights from state powers. He placed the people and the states on the same side of the boundary that most concerned him. In addition, he assumed that institutions of state government were accountable to the states' citizens, had primary responsibility to secure rights over which the federal government had no power, and were authorized to voice the people's collective determinations.(11)

   Jefferson argued that unless the states had authority to "nullify" the federal government's assumptions of undelegated power, the states and their residents "would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them." He asserted that Congress could not have this authority because it was "not a party, but merely the creature of the compact." Similarly, he characterized federal courts as part of "the government created by this compact." He claimed that no part of this government could be "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." On the other hand, he argued that the states alone were "parties to the compact." In the absence of a "common judge," he submitted, the states were "solely authorized to judge in the last resort of the powers exercised under [the Constitution]."(12)

   Jefferson equivocated on whether each state had authority to nullify as ultra vires actions by the federal government or whether the states could only do so collectively. Suggesting the former but referring to the states plurally, he argued: "[E]very 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."(13) The draft provided that it would "nevertheless" be communicated from one state to its "co-States" out of "regard and respect." Furthermore, the resolutions sought...