In 1798 Thomas Jefferson secretly drafted another declaration few people know about...

by Derek Sheriff

Most Americans know that Thomas Jefferson was the principal author of “The Declaration of Independence”, the most important of all our founding documents.

Yet few of them have even heard of another document that I would say might be the second most important declaration he ever wrote: The Kentucky Resolutions of 1798. He drafted them secretly while he was serving as vice president. It was written in response to the hated Alien and Sedition Acts which were passed under the Adams administration during an undeclared war with France.

The acts authorized the president to deport any resident alien considered dangerous to the peace and safety of the United States, to apprehend and deport resident aliens if their home countries were at war with the United States, and criminalized any speech which might defame Congress, the President, or bring either of them into contempt or disrepute. You could compare it to the Patriot Act, but really it was much worse. Either way, The Alien and Sedition Acts were probably Thomas Jefferson’s worst nightmare.

Some people are surprised to learn that in response to these acts, Jefferson did not hold up the First Amendment in protest. Rather he invoked the Tenth Amendment, which states that:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Essentially, he argued that by passing and enforcing the Alien and Sedition Acts, the federal government had over stepped its bounds and was exercising powers which belonged to the states.

In other words, the Alien and Sedition Acts were acts of usurpation.

James Madison corresponded with Jefferson about these issues, (they suspected that their mail was being secretly opened and read by the way). As a result of their correspondence, James Madison penned another series of resolutions against the Alien and Sedition Acts, which were passed by the Virginia legislature in 1798 and 1799.

As important as these resolutions were in objecting to the unconstitutional Alien and Sedition Acts, their lasting importance was due to the the fact that they were strong statements in defense of federalism, the sovereignty of the people of the several states, and the authority of state governments to check or resist the tyrannical proclivities of the federal government.

Jefferson began the Kentucky Resolutions by explaining the exact nature of the relationship between the new federal, or general government and the states that predated it:

“Resolved, That the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government; but that, by a compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes — delegated to that government certain definite powers, reserving, each State to itself, the residuary mass of right to their own self-government; and that whensoever 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 part, its co-States forming, as to itself, the other party: that the 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 powers 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.”

These resolutions, authored by Jefferson and Madison, and passed by the Kentucky and Virginia Legislatures, came to be known as the Kentucky and Virginia Resolutions, or Resolves, of 1798. The ideas they expressed were later referred to as “The Principles of ‘98″.

Over time, “The Principles of ’98″ would be invoked by many states, for a variety of issues. States invoked them to oppose everything from unconstitutional embargoes in 1807-1809, to the misuse of their militias during The War of 1812, the Second Bank of the United States in 1825, and the Fugitive Slave Acts of 1850.

Even today, The Principles of ‘98 have been rediscovered and are being used by both Republicans and Democrats to address unconstitutional federal laws such as federal firearms regulations, Cap and Trade, REAL ID, Obamacare and Congressional “commerce clause” abuse in general.

The Principles of ‘98, as expressed in Thomas Jefferson’s other declaration, The Kentucky Resolutions, are non-partisan in nature and are just as relevant today in 2010 as they were in 1798. All we have to do is rediscover and reassert them! Start talking to your state legislators about the Principles of ‘98 today!

CLICK HERE – To read or listen to an audio presentation of Thomas Jefferson’s OTHER declaration — the Kentucky Resolutions of 1798!

CLICK HERE – To read more about how the Principles of ‘98 were used by states throughout American history.

This article was originally featured on the website of United We Stand For Americans.

Derek J. Sheriff [send him email] is the state chapter coordinator for the Arizona Tenth Amendment Center. His blog and podcast “Principles of ‘98″ can be found at www.PrinciplesOfNinetyEight.Com

Copyright 2010 by the author, Derek J. Sheriff.

by David Sands

As early as 1796, the year of the first contested Presidential election, the battle lines were drawn. Although there were no formal political parties, there were loose coalitions of political thought, and as is the nature of any war, it came down to two sides: The Federalists, who preferred a more powerful national government, and the early beginnings of the Republicans, who favored a less powerful national government. Both parties recognized the need for a national government, but as always, the devil is in the details.

John Adams, the Federalist candidate, won the electorate by 3 votes. At that time the runner-up became the Vice President, and Thomas Jefferson represented the Republicans in that office. The Federalists retained control of Congress, and it didn’t take long for human nature to kick into gear. When given a little bit of power, most of us tend to use it to gain more power. We rationalize this abuse of power by claiming it is for the “greater good”. But just as we are witnessing the effects of political power run amok today, the first Americans also had to deal with this problem.

In 1798 Congress passed the Alien and Sedition Acts, a set of 4 laws that are eerily similar in nature to the kind of legislation we’re seeing today. The Alien Acts gave the President the power to detain, imprison, or deport individuals believed to be “dangerous to the peace and safety of the United States.” The Sedition Act made it a crime to publish “false, scandalous, and malicious writing” against the federal government. In fact, there were Republican journalists that were prosecuted and convicted under this law.

This was simply an early test of American federalism. Our contemporary debate is really pretty old. How much power should be given to the federal government? But as Thomas Jefferson pointed out, the real question is this: who gives the federal government the power in the first place? It’s fine to debate how much power the feds should have, but if we don’t understand where it comes from, we are destined for failure.

When these federal laws were passed in 1798, there were people who began talking about secession. Thomas Jefferson stepped in and worked behind the scenes to show people that there was a better solution. Remember, Jefferson was a Republican Vice President serving in a Federalist administration, so he couldn’t directly oppose this nationalistic trend. Instead, he covertly worked with James Madison to author state resolutions that would condemn these unconstitutional laws. Jefferson himself authored the Kentucky Resolutions of 1798 and Madison drafted the Virginia Resolution of 1798.

Both of these documents are extremely important to American federalism. Just as Jefferson intended, these resolutions laid the groundwork for the principles of nullification and interposition. His message was a reminder that “we the people” are ultimately in charge, not the federal government. The federal government derives its power from the people. It’s surprising to me that this was an issue as early as 1798.

David Sands is the local coordinator for the Blount County (TN) Tenth Amendment Center.

Over the course of American history, there has been no greater conflict of visions than that between Thomas Jefferson’s voluntary republic, founded on the natural right of peaceful secession, and Abraham Lincoln’s permanent empire, founded on the violent denial of that same right.

That these two men somehow shared a common commitment to liberty is a lie so monstrous and so absurd that its pervasiveness in popular culture utterly defies logic.

After all, Jefferson stated unequivocally in the Declaration of Independence that, at any point, it may become

necessary for one people to dissolve the political bands which have connected them with another and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them…

And, having done so, he said, it is the people’s right

to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

Contrast that clear articulation of natural law with Abraham Lincoln’s first inaugural address, where he flatly rejected the notion that governments derive their just powers from the consent of the governed.

Instead, Lincoln claimed that, despite the clear wording of the Tenth Amendment,

no State upon its own mere motion can lawfully get out of the Union; [and] resolves and ordinances [such as the Declaration of Independence] to that effect are legally void…

King George III agreed.

Furthermore, Lincoln claimed the right of a king to collect his federal tribute, by violence if necessary. Without even bothering to pretend such authority existed in the Constitution, Lincoln offered (and eventually carried out) a thinly veiled threat that

beyond what may be necessary for [collecting taxes], there will be no invasion, no using of force against or among the people anywhere.

In the words of Tony Soprano, pay up and nobody gets hurt.

But perhaps, as some have said, Jefferson intended his Declaration merely as a political tool to justify American independence from Britain. He surely would never have acknowledged or defended an individual state’s right to secede from the very union he helped to found. Except that he did, in his own first inaugural.

Upon assuming the presidency in 1801, amidst severe political and sectional turmoil, Jefferson said

If there be any among us who wish to dissolve the Union or to change its republican form, let them stand undisturbed, as monuments of the safety with which error of opinion may be tolerated where reason is left free to combat it.

In light of these facts, no serious student of history or politics could believe that Jefferson and Lincoln possessed similar visions for America. Or that Jefferson would have condoned the violent subjugation of a single sovereign state (let alone 11 of them), or thought Lincoln’s disregard for the Constitution in any way legal or justified.

Rather, he would have known at once that what Lincoln spawned through his belligerence was a government capable of violating its own fundamental law at will; of using illegal force to prevent the governed from withdrawing voluntary consent (regardless of their motivation), and thereby destroying consent altogether.

Such a government is incapable of liberty, and antithetical to the very existence of Jefferson’s America.

For that reason, it is not possible to truly understand, and yet still admire, the words and deeds of both men. Despite his occasional use of the Declaration’s language, Lincoln himself despised Jefferson; demonstrating by his policies that they occupied polar opposite ends of the ideological spectrum, as do their political descendants today.

But, after decades spent trying to ignore or deny the irreconcilable disconnect between these two figures, the political class has succeeded only in perpetuating the contradictory and inherently dishonest character of modern American government. Though our system is ostensibly rooted in the rule of law and the ideals of liberty, its current nature is really embodied much more accurately by the lawless despotism of our 16th president.

We cannot continue to have it both ways. The preposterous dichotomy between America’s founding principles and the actions of her government, from the War Between the States to the War on Drugs, has predictably eroded that government’s moral standing at home, and its credibility around the world.

As a society, we cannot both revere a man whose fierce dedication to the right of political self-determination formed the philosophical foundations of our republic, and at the same time worship a dictator whose arrogant and bloody denial of that right transformed our republic into an empire.

It is time to choose. If Americans truly are heirs to the Jeffersonian legacy, than it has always been and must always be, not only our right, but our duty as citizens to withdraw consent from any government that becomes destructive of life, liberty, or the pursuit of happiness.

If, however, We the People believe ourselves incompetent to judge when that line has been crossed, then we will continue to find no shortage of political masters eager to carry on Lincoln’s legacy of contempt for our Constitution, and violent suppression of self-government.

Either way, one thing is certain: America will never regain the principles of her founding until her people muster the courage and clarity to finally separate liberty’s friends from its foes.

Josh is a proud “tenther”, freelance writer, and activist originally from the Washington, D.C. area. Josh is the State Chapter Coordinator for the Virginia Tenth Amendment Center.

It is astonishing that Jeffersonian scholars have paid so little attention to the states’-rights aspect of Jefferson’s thought. If one reads the Kentucky Resolutions of 1798, Jefferson appears to be the father of the Confederate States of America much more that of the United States. Here, Jefferson sought to provide a constitutional interpretation that would at least in principle prevent the union from “consolidating.” He wanted to keep a system of loose federalism very similar to the one embodied in the Articles of Confederation.

Jefferson took advantage of the first opportunity in which the federalists openly disregarded the Constitution to address problems concerning the relationship between the federal government and the states, and his interpretation placed further limitations to federal power on the grounds that the U.S. were established as a republic based on states’ as well as individual rights.

The occasion was the approval of two acts that posed a serious threat to the system of American liberties. The Alien and Sedition Laws were approved in 1798 (under this law, you could be sent to prison for criticizing the president). The Virginia and Kentucky Resolutions, drawn respectively by Madison and Jefferson, were the opposition answer to those laws.

For the first time in American history, Jefferson outlined the political and juridical doctrine of the “State rights school” that became the standard way of viewing relations between States and Nation in the Southern states during the 19th century, up to the end of the War for Southern Independence.

Revived and perfected by John C. Calhoun, this doctrine became the heart of the controversy between the two sections of the country. Jefferson asserted that the States had created a federal government as a simple agent, subordinate to them, for limited and well-defined functions, and that the federal government did not have any right to expand its own authority.

Each individual State, as far as the controversies regarding the Constitution were concerned, had the right to determine when the compact had been breached, and what measures were most appropriate to restore the violated order and redress the wrong. Thus, it was a right (explicitly called by Jefferson “natural,” therefore sacred) of each State to pronounce the illegitimacy of an act of Congress contrary to the constitutional compact.

Jefferson’s account of the nature of the Union–a voluntary contract among free and independent States in order to establish a common caretaker for few and enumerated things–contains a great deal of common sense. In a nutshell, the idea behind the Resolutions is as follows: the States are the ultimate judges of the constitutionality of federal legislation. This requires a rigorously voluntary framework.

But the Supreme Court, a branch of the federal government, at the time was already becoming what it is now, that is to say the arbiter of conflicts between the States and the federal government. In this case, the constitutional framework is threatened, since the federal government, not the Constitution, becomes the judge of its own expansion. More generally, if the States are expected to obey any federal law, regardless of whether the act had been issued according to the Constitution, only lip service is paid to the system of guarantees known as “federalism.”

Despite the ratification of the federal Constitution, Jefferson believed that vis-à-vis each other, the States remained like individuals in the “state of nature.” To characterize the true nature of the American union, for Jefferson, it was sufficient to transpose the Lockean natural rights model from individuals to the States. He never appealed to the theory of sovereignty (a term that does not even appear in his original draft of the Resolutions) to claim that the States are “free and independent”: their liberty and independence lie in the nature of the bond in which they find themselves, and not in the somewhat metaphysical property of being “original political communities.”

Despite the Constitution, the States retain all of their natural rights with respect to one another–exactly like individuals in a “state of nature.” Jefferson’s appeal to nullification was a peculiar application of the theory of natural rights: a “state’s natural right,” the right of nullification, was entirely within the realm of the federal compact, and was by no means an extra-constitutional remedy. In Jefferson’s opinion, such a right derived entirely from the nature of the American union, as it had been historically constructed.

Jefferson understood better than anybody else in his generation that Congress was the real heir to the king and that the concentration of powers in the federal center would have brought about “a government of discretion.” To this ultimate evil he preferred secession, as he wrote again and again. So, yes, Jefferson’s goal was the preservation of men’s natural rights, but he believed that the best way to reach that was through a strict territorial division of power.

Of course there were many inconsistencies in Jefferson’s writings, and his behavior in politics often contradicted his stated political philosophy. That said, it remains indisputably true that Jefferson was a Lockean who believed in the natural right of property and in the rights of the states as independent political entities to determine their own destinies. That so many scholars are unwilling to face these truths reflects, not contrary evidence in Jefferson’s writing, but rather the bias and wishful thinking of the academic class.

Originally published on May 23, 2002 at Mises.org

Marco Bassani, scholar in residence at the Mises Institute and author of the introduction to the Italian edition of Rothbard’s Ethics of Liberty, teaches political thought at the University of Milan.

This year, hundreds of thousands of citizens have met in Tea Party rallies across our nation and have given a voice to the Jeffersonian tradition. The crowds support the reduction of federal power and an end to undisciplined government spending. This approach to government is the philosophy advocated by our third president, Thomas Jefferson.

Jefferson was one of the early proponents of the “strict constructionist” view of the Constitution. This view affirms that any powers not explicitly delegated to the federal government by the Constitution, nor prohibited to the states, should be reserved to the states and to the people. This is the essence of the Tenth Amendment to the U.S. Constitution, which was part of the Constitution Jefferson swore to uphold in his oath of office.

Jefferson defended the rights of the common man over the prerogatives of the state. His view on the subject is stated succinctly in a letter to Elbridge Gerry, a signer of the U.S. Constitution and one-time governor of Massachusetts. The letter was dated 1799, a year before Jefferson was elected president.

“I am for preserving to the States the powers not yielded by them to the Union, & to the legislature of the Union [Congress], its constitutional share in the division of powers; and I am not for transferring all the powers of the States to the general government, & all those of that government to the Executive branch.”

In his first Inaugural Address, Jefferson also touched on this subject when he listed his “essential principles of our government.”

“…the support of the state governments in all their rights, as the most competent administrations for our domestic concerns and the surest bulwarks against anti-republican tendencies…”

Jefferson would start another revolution were he alive today, for what he opposed occurred in the twentieth century. The federal government assumed more and more authority in every area of government policy, from building roads to educating children. Jefferson would have left these matters to be handled at the state level; he would not have enlarged the federal government to administer them in Washington.

Executive branch departments and so-called independent agencies control the program delivery systems and administrative rule-making powers that define federal policy today. Meanwhile, state officials must go to Washington, D.C. and beg for federal money and federal programs.

The states should tell the Feds to keep their programs and their money, but that would be difficult politically and financially. States would have to raise state and local taxes to make up for the loss in federal funds and the federal government would lose control over the states and the populace.

Of course, this would mean the federal budget could be balanced and the national debt retired, over time. This is the program of reform that Congress would enact if it really wanted to serve the people and carefully steward the taxpayers’ money.

Jefferson’s strict constructionist view put him at odds with Alexander Hamilton, who advocated the opposing doctrine of implied powers, which gave the federal government a much more expansive field of authority.

Jefferson and Hamilton were both members of the Cabinet during George Washington’s presidency. The two men sharply disagreed over the question of public debt. Hamilton saw it as a positive tool that could be used to establish credit for the United States, while Jefferson saw public debt as an affront to the liberty of the citizens.

Hamilton believed a national debt to be a blessing. Jefferson, however, was of a different mind. He wrote to James Madison in 1789 regarding the nation of France, “. . . would it not be wise and just for that nation to declare in the constitution they are forming that neither the legislature, nor the nation itself can validly contract more than they may pay within their own age, or within the term of 19 years?”

In his 1799 letter to Elbridge Gerry, Jefferson commented on frugal government and eliminating public debt.

“I am for a government rigorously frugal & simple, applying all the possible savings of the public revenue to the discharge of the national debt; and not for a multiplication of officers & salaries merely to make partisans, & for increasing, by every device, the public debt, on the principle of its being a public blessing.”

In getting Congress to accept all Revolutionary War debts at face value, Hamilton obligated the government to pay for years on the principal and interest. In order to make payments on the debt, several new taxes were necessary. These taxes included tariffs or import duties and excise taxes on such things as alcohol, refined sugars, auctions, and licenses. Once in office, Jefferson and his allies in the Congress worked to repeal the excise taxes.

During his presidency, Congress, at Jefferson’s request, abolished the internal revenue service, which had been established to collect the excise taxes. This branch of the Treasury Department should not be confused with the modern Internal Revenue Service.

The agency in Jefferson’s day consisted of about five hundred employees who were involved in collecting excise taxes. (The income tax had not yet been established.) With the excise taxes repealed, there was no need for this tax-collecting agency. Jefferson and his Treasury secretary also persuaded Congress to cut government spending and make substantial payments to reduce the war debt.

According to Americans for Prosperity, a free-market advocacy organization, our government has already spent trillions in its attempt to solve our economic problems. This is more than the cost of World War II. In addition, the government has committed to spend trillions more over the next few years, which will bring the grand total to an unbelievable $11.6 trillion in new spending – more than 26 times the size of the New Deal.

It is time for citizens to engage their public servants and demand a stop to this madness. It is time for the Washington liberals to wake up and do what common sense demands. Fiscal responsibility is a big key to solving our problems. Now is the time to make the changes that will re-establish American liberty.

Jim Jess has participated in politics as an activist, writer, and nonprofit organization leader for 30 years. He worked in the office of Governor Sonny Perdue and is a member of several conservative groups. Jim writes for Examiner.com and maintans the website ConstitutionalEducation.org.

This article was originally published as “Jefferson’s Philosophy” in Faith & Freedom, March 1951.

Jeffersonian or Hamiltonian? Every college student, indeed every literate person, is expected to choose up sides and pin a label on himself in the Great Debate. Most people today consider themselves as Jeffersonians. Groups as diverse as the States’ Rights (or Dixiecrat) movement and the Communists consider themselves heirs to the Jeffersonian mantle.

At one and the same time, conservative southerners refer to themselves as “Jeffersonian Democrats,” while the leading revolutionary Marxist school in the country is called the “Jefferson School of Social Science.” Amidst this welter of confusion, to find the true picture of Jefferson the man and political philosopher is an extraordinarily difficult task.

A Bewildering Mosaic

Analysis of Jefferson is made far more difficult by the complex nature of Jefferson’s personality and career. A man of brilliant intellect; keenly interested in the whole range of human thought, from economics to architecture to scientific farming; active, dynamic, and spirited in an amazing multitude of enterprises, and moreover a political leader the greater part of his life, necessarily presents to posterity a bewildering mosaic. Politics itself is a day-to-day affair, imposing by its very nature on the politician a series of shifts and compromises.

Thus, Jefferson combined within himself the qualities of a soaring intellectual spirit, searching for political principle, busy man of affairs, and political boss. When it is further remembered that Jefferson dominated the stage during the most vital years of the Republic (Revolution, Independence, Constitution, Growth, War, etc.), it becomes more understandable that so many contrasting groups can pick out of his immense record of writings and actions support for their own ideologies.

A Mere Scribbler?

But to an unbiased observer who explores Thomas Jefferson, his principles stand out indelible and crystal clear. His political philosophy has been imbedded deep into the very soul of America, and has imprinted itself on the minds of innumerable Americans of later generations. His achievement has been sneered at by Hamiltonians of our day as well as his.

Hamilton, they claim, was a constructive and practical man of action. He funded the national debt, reformed the administration of government, established a national bank, etc. Jefferson was a mere phrase-maker and scribbler. These “practical men” fail to grasp that the forces which generate the actions of men, and therefore human history, are, for good or bad, the ideas of men. It is ideas, political, economic, ethical, esthetic, religious, that have prime significance for human action in the present and over the centuries. It is ludicrous to claim that Hamilton’s financial measures were of comparable importance to the Declaration of Independence or the Kentucky Resolutions.

The battle between Jefferson and Hamilton, however, is of very great significance, and precisely because it represented a clash between two fundamentally contrasting systems of political principle.

Jefferson’s political philosophy is summed up in the phrase: ”That government is best which governs least.” It received its finest expression in our own Declaration of Independence: man is endowed by God with certain natural rights; “to secure these rights, governments are instituted among men, deriving their just powers from the consent of the governed,” and when government becomes destructive of that end, the people have the right to change the form of government accordingly.

Thus Jefferson, as John Locke had done a century before, drastically shifted the moral emphasis from the State to the individual. In the absolutist and feudal era from which the world was beginning to emerge, divine right settled only on the kings, the nobility; in short, the State and its rulers. To Jefferson, the divine rights were conferred on each and every individual, not on rulers of government.

The Great Jeffersonian Lesson

What were these natural rights? The fundamental right, from which all others are deduced, is the right to life. Each individual has the moral right to live without coercive interference by others. To live, he must be free to work and acquire property, to “pursue happiness.” In political terms, the one important natural right is self-defense; defense of one’s life, liberty, and property from invasive attack.

Government’s function, then, is to use its power of force to prevent and combat attempts to use force in the society. If the Government extends its powers beyond this “cop-on-the-corner” function, it in itself becomes the greatest tyrant and plunderer of them all. Since the Government has virtual monopoly of force, its potentialities for evil are far greater than that of any other institution.

The people must constantly keep their Government small and local, and even then must watch it with great vigilance lest it run amok. That is the great Jeffersonian lesson, and it is one that all Americans must begin to learn again.

From this basic cornerstone, the rest of the Jeffersonian edifice is easily deduced. It explains his passionate, lifelong adherence to States’ Rights, his determined opposition to John Marshall in the latter’s successful campaign to make the Constitution more elastic so as to permit wider extension of federal power, his very distrust of the Constitution itself and insistence upon incorporating a Bill of Rights.

Jefferson’s position on foreign policy stemmed from the same source. He did not believe that our government, or any government, is equipped to remake the world by force to our own liking. He was frankly a whole-hearted patriot, whose natural love of the soil and his country was reinforced by the fact that America constituted the Great Experiment in Liberty.

His foreign policy was expressed in this classic phrase: “Peace, commerce, and honest friendship with all nations — entangling alliances with none.” Particularly marked was his perceptive distrust of the wily imperialism of Great Britain.

The Fundamental Cleavage

In the economic sphere, Jefferson was not anti-capitalist, as his enemies charged. He believed in genuine freedom of enterprise, unencumbered by government regulation or grants of monopoly privilege. His opposition to paper money and a central bank were based on profound insight into the then new science of economics.

Jefferson’s almost unknown writings on banking, money, and depressions demonstrate that he was head and shoulders over the allegedly “practical men” who opposed him. What has since been interpreted as anti-capitalist rhetoric was simply expression on Jefferson’s part of a personal preference for the soil and a distaste for the life of the cities.

The importance of the Jefferson-Hamilton struggle has been unfortunately obscured. It is a struggle which, in one form or another, has continued to mark our country since its inception. Hamilton and the Federalists believed in ever-expanding power of the federal government, a myriad of governmental regulations, controls, and special privileges in economic life, the crushing of the states, and limiting the rights of the individual.

Their ideal was the British model — a strong monarch ruling the country in behalf of the “general welfare”; failing the adoption of a monarch, a strong President to act as benevolent despot. In foreign affairs, the Federalists looked to the British Empire as friend and ally. Hamiltonian Federalism was, in the profoundest sense, un-American; it represented a conscious harking back to the imperial British mode, a retention of the typically European forms of strong central government and semi-socialist “planned economy.”

Our Constitution was forged as a compromise between the Jefferson and Hamilton forces, with James Madison acting as the eternal tightrope-walker and fence-straddler between the two camps. The trappings, the rhetoric, the specific issues have changed, but the fundamental cleavage remains, unresolved, on the American scene.

Murray N. Rothbard (1926–1995) was dean of the Austrian School. He was an economist, economic historian, and libertarian political philosopher. See his article archives.

If Thomas Jefferson could come back and visit the United States for a day, would he recognize the government his wisdom and wordsmithing helped create?

He would likely be confused, or outraged, by the overreaching power of the federal government. He would bristle at the coercive use of matching funding, and unfunded federal mandates, to make the states submit to the will of the federal system.

Federal mandates and power grabs have been happening for years, but gaining momentum is a national movement to demand the federal government adhere to the designs of our forefathers and enforce the 10th Amendment. That amendment says powers not specifically delegated to the federal government are reserved to the states.

I joined State Sen. Greg Walker (R-Columbus) in authoring a resolution urging the federal government to end all state mandates beyond the scope of powers outlined by that 10th Amendment. We were joined by 19 other Republicans and six Democrats as co-authors. It passed in the Senate overwhelmingly, 44-3. Similar resolutions have been introduced in 30 states – 15 in the last month alone.

Many leaders in those states have recognized the checks and balances our forefathers built into the U.S. government have eroded to dangerous levels.

Early American statesman Alexander Hamilton said “the people will always take care to preserve the constitutional equilibrium between the federal and state governments.” This balance formed a double security for the people. If one encroached on their rights, they could find a powerful protection in the other.

Our founding fathers said the federal government should be concerned with war, treaty and commerce between the states and abroad — period. Everything else – roads, education, agriculture, etc – is a state responsibility. Programs such as the far-reaching “No Child Left Behind,” signed by a Republican President, and massive federal stimulus plans with as many strings as dollars, created by a Democrat president, both disrupt the balance built into our system of government.

Jefferson teamed with another future president and statesman, James Madison, to write this resolution for Kentucky and Virginia: “The several states composing the United States of America are not united on the principle of unlimited submission to their General Government.”

Powers of the federal government are, as the Constitution clearly outlines, “delegated.” They are not inherent. This arrangement made the federal government an agent of sorts for the states, authorizing it to act on their behalf in certain ways – not vice-versa.

This issue is not an attack of the Obama Administration. This is not a Democrat versus Republican issue. This issue is about the legitimacy of authority wielded by the federal government. Our founding fathers knew what they were setting up. Conflict between the state and federal systems was by design.

If our constitution is to be anything other than a dusty document we honor in a museum, we need to keep those principles alive in our hearts and minds.

While he might be dismayed at how out-of-balance our government currently is, I think Thomas Jefferson would also be pleased to see resolutions passed in so many states protesting federal intrusion. After all, it was Jefferson who said “Dissent is the highest form of patriotism.”

First elected to the Indiana State House of Representatives on November 5, 2002, Marlin A. Stutzman is a State Senator for Indiana’s District 13.  Click here to contact Senator Stutzman.

In Marbury v. Madison (1804), John Marshall argues that the Supreme Court ought to have the authority to determine the constitutionality of laws which come before the court. Since the judges must apply the laws to particular cases, they must necessarily “expound and interpret” those laws.

Furthermore, since the Constitution is superior to an ordinary act of the legislature and cannot be annulled by such an act, the judges-when faced with a law contrary to the Constitution-must strike down the law so as to uphold the Constitution.

Otherwise, the power of the Constitution itself would be nullified, and the courts would be forced to uphold the very injustices against which the Constitution was meant to protect.

If, for instance, Congress had passed an ex post facto law, and an individual were prosecuted under it before the court, it would defeat the purpose of the Constitution if the court were forced to convict the individual under the law. Marshall emphasizes that court justices take an oath to support the Constitution, and it would thus be immoral for them to violate what they have sworn to support.

Those who insist that the courts do not consider the constitutionality of laws in their decisions are in effect insisting that the justices violate their oaths. Furthermore, “the judicial power of the United States is extended to all cases arising under the Constitution,” and thus it would absurd for the courts to examine a case arising under the Constitution without examining the instrument under which it arises.

In his letter to Judge Spencer Roane, Thomas Jefferson argues against exclusive judiciary construction of the Constitution; such exclusive power of constitutional interpretation would, according to Jefferson, undermine the principle of checks and balances-since it would allow the judiciary department to prescribe rules for the government of the others.

If the judiciary has sole power of constitutional interpretation, then the Constitution “is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please.”

Jefferson instead recommends that each department be truly independent of the others and have the right to decide for itself the Constitution’s meaning in cases submitted to its action-especially in those cases where it is to act ultimately and without appeal.

Marshall and Jefferson present two diametrically opposed views of the nature of constitutional interpretation, and it is regrettable that Marshall’s view has been virtually uncontested in the United States during the past century; Jefferson was correct to warn that giving the Supreme Court sole ultimate power to interpret the Constitution would shift supremacy from the text of the Constitution to the subjective wishes of Supreme Court justices.

Perhaps it is time to give each branch of government the sovereignty to judge for itself what is constitutional, and the ability to act as a check against misinterpretations by the other branches.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.

Thomas Jefferson, third president of the United States of America, was an architect, a philosopher, a Deist and an impeccable prose stylist. His passionate appeal to dissolve ties with England—the Declaration of Independence—led the early colonies to war and ultimately freedom. As president, he earned respect for his sound principles and industrious nature, though his private life has been subjected to intense scrutiny.

Early Days

Early American political thought about the Union’s nature was divided into two radically different perspectives. One of these was expressed by Thomas Jefferson’s 1798 Kentucky Resolutions, which viewed the Union as a loose compact of the states, whose legislatures could overrule and judge  the constitutionality of the federal government’s actions.

The South Carolina Declaration of Causes (1860) and the Mississippi Resolutions (1861) developed this position-using Jefferson’s premises to justify Southern states’ secession from the Union.

Jefferson portrayed the Union as voluntarily entered into by the states; the states were “not united on the principle of unlimited submission to their general government” (KR, 153).

The Union was created by the ratification of the Constitution, which served as a “compact” by which the states “delegated… certain definite powers” to the general government (KR, 154).

The government’s exercise of powers not expressly granted to it by the Constitution was thus illegitimate. For Jefferson, the Constitution both defined and limited the Union’s nature and essence.

To keep the national government one of limited and expressly delegated powers, Jefferson warned that it should not be “the exclusive or final judge of the extent of the powers delegated to itself” (KR, 154), since that would allow the government to define the scope of its powers and dissociate these powers from their original source-the states.

The states-as parties to the Constitutional compact- have no common judge among them; hence, “each party has an equal right to judge for itself, as well of the infractions as of the mode and measure of redress” (KR, 154). Jefferson acknowledged state legislatures’ right to judge federal actions’ constitutionality.

The South Carolina and the Mississippi legislatures agreed with Jefferson that the Union was a compact among the “free and independent states,” whose sovereignty was asserted in the 1776 Declaration of Independence (SCDC, 310).

In 1787, deputies sent by the states affirmed the “Articles of Union”-the Constitution-which defined the Union and required the states’ consent to take effect (SCDC, 311). The South Carolina Declaration emphasized that-while only nine out of thirteen states needed to ratify the Constitution for it to be adopted-those that refused to ratify it would have remained “separate, sovereign states… exercise[ing] the functions of… independent nation[s]” (SCDC, 311).

Via the Tenth Amendment, the Constitution assured that all powers not expressly delegated to the national government were left to the states or the people, while the federal government remained “limited to the express words of the grant” (SCDC, 311).

In the Southern legislatures’ view, the Constitution established the “law of compact” (SCDC, 311), which required mutual reciprocity of obligations on behalf of all parties to the Union.

If any party-such as the Northern states-refused to fulfill its Constitutional obligations and infringed on the rights of the other parties, the Union was dissolved and “the ends for which this government was instituted have been defeated” (SCDC, 312).

The Mississippi Resolution asserted that whenever the compact is thus destroyed, “parties to the compact have the right to resume, each state for itself, such delegated powers” (MR, 314) as they had formerly granted the national government.

According to the Mississippi Resolution, the Northern states’ explicit unwillingness to enforce the Constitution’s fugitive slave clause justified the Southern states’ secession from the Union (MR, 315).

Jefferson’s Kentucky Resolutions and the declarations of the South Carolina and Mississippi legislatures viewed the Union as a compact of sovereign states that retained broad powers and could exercise them to counter federal abuses.

Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.