When he authored the Kentucky Resolution of 1798, Thomas Jefferson based his arguments for nullification, in part, upon the compact theory of the relationship between the states and the Federal Government. According to this original understanding of the State-Federal relationship, the Constitution under which the Republic was to operate was the creation of the several states, and thus the Federal government was also the creation of these states.
Jefferson used this understanding to argue that when the Federal government violates the Constitution, the states themselves have the power, as ascendants to the compact of the states, to judge these violations on their own cognizance. The Resolution, along with its sister resolution from Virginia authored by James Madison, were intended as a call to action aimed at the legislatures of the other 14 states, urging them to join Virginia and Kentucky in declaring the recently passed Alien and Sedition Acts as null and void.
Unfortunately, this call to action failed completely. Several of the other states simply ignored these resolutions, while others specifically rebutted it, arguing that only the federal judiciary had the right to rule on the constitutionality of a federal action. Included in these rebuttals was a rejection of the compact theory, and its replacement with the theory of direct incorporation – the belief that the Constitution was incorporated directly by the people of the United States, and therefore was not a creation of the states, but was instead a muzzle on the states put in place by the people themselves.
The direct incorporation theory dated back to 1793, when the Supreme Court case of Chisholm v. Georgia was decided, and Chief Justice John Jay asserted the theory by relying on the language of the Preamble. This view gradually caught on in the early Republic. Daniel Webster also rejected the compact theory, instead asserting the Constitution to have been directly formed by the people of the United States as a body. Joseph Story, in his Commentaries on the Constitution of the United States, concurred. The Supreme Court (naturally) affirmed this view in several subsequent rulings (Martin v. Hunter’s Lessee , McCulloch v. Maryland ), using the same reasoning as Jay used in the 1793 case.
The compact theory was often relied upon by Southern states to justify both nullification and then secession up until the Civil War. After that war, of course, the theory was completely expunged from the American political lexicon by the victors.
Two general arguments were consistently used by proponents of the direct incorporation theory to attempt to discredit the compact theory. These were:
1) The Preamble of the Constitution declares that, “We the people of the United States, in order to form a more perfect union…” As a result, the Constitution was clearly intended from the very beginning to be a direct creation of the body of people in the nation themselves. As a result, the states have no prior claim, via the compact theory, to sit in judgment upon unconstitutional federal acts – only the people themselves, through the federal government, may do so.
2) As a consequence of the first argument, the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.
Before I address these two arguments specifically, I’d first like to make some general observations about the political climate in the United States in 1798. No republic is perfect, and even the best intended will sooner rather than later fall into the clutches of the partisan spirit. America was no different. The Alien and Sedition Acts were the creatures of the Federalists who controlled the national legislature at this time, and were approved by President John Adams, also a Federalist. In many ways, these acts were intended to target the Federalists’ political opponents, the Democratic Republicans (the party of, among others, Jefferson and Madison). The Alien acts were designed to target for deportation foreign nationals, especially Frenchmen, who were allies of the Democratic Republicans (many DRs tended to support the Revolutionaries in the French Revolution, while the Federalists opposed them, and indeed were keen on any pretext for a war with France). The Sedition acts, as their subsequent employment showed, were put into place so as to allow the government to silence Democratic Republican opposition in the press.
At this time, the majority of the state legislatures were in the hands of the Federalists as well, especially those northern states such as Vermont and New Hampshire which were most vigorous in their opposition to the Kentucky and Virginia Resolutions. Chief Justice John Jay, whose opinion in Chisholm v. Georgia these states relied upon for support for the incorporation theory, was also a Federalist. The point to all of this is that incorporationist opposition to the assertion of the compact theory and nullification by Jefferson and Madison was not based on high-minded statesmanlike reverence for the Constitution. Rather, it was based on naked partisanship by Federalists who were supporting their Party and President and who were, thus, rejecting arguments using the compact theory because they originated with political enemies.
Now, to address the incorporationist arguments. First, was the Constitution a creation of the citizens of the United States as a mass, or was it a creation of the people of the states, through their states?
The answer to this question, contrary to the assertions of many in our history, is the latter. This can be seen clearly enough in the statements of ratification of the Constitution found in all 13 of the original states. For instance, in Virginia’s statement of ratification declares,
“We the Delegates of the People of Virginia duly elected in pursuance of a recommendation from the General Assembly and now met in Convention having fully and freely investigated and discussed the proceedings of the Federal Convention and being prepared as well as the most mature deliberation hath enabled us to decide thereon Do in the name and in behalf of the People of Virginia declare and make known that the powers granted under the Constitution being derived from the People of the United States may be resumed by them whensoever the same shall be perverted to their injury or oppression and that every power not granted thereby remains with them and at their will…”
New Hampshire’s ratification statement, likewise, contains this injunction to their representatives concerning proposed changes to the document in question,
“In Convention of the Delegates of the People of the State of New-Hampshire June the Twenty first 1788…And the Convention do in the Name & behalf of the People of this State enjoin it upon their Representatives in Congress…”
In a similar vein, Massachusetts’ statement said,
“In Convention of the delegates of the People of the Commonwealth of Massachusetts February 6th 1788…And the Convention do in the name & in behalf of the People of this Commonwealth enjoin it upon their Representatives in Congress…”
New Jersey’s statement explicitly notes that the convention of the people in their state, meeting for the purpose of ratifying the Constitution, was authorized to do so by the state’s legislature,
“And Whereas the Legislature of this State did also on the first day of November last make and pass the following Act, Vizt- “An Act to authorize the People of this State to meet in Convention, deliberate upon, agree to, and ratify the Constitution of the United States, proposed by the late General Convention…”
And so on. Each and every state ratification convention asserted that the delegates who were meeting to ratify the new Constitution did so on behalf of the people of their states. Each one asserted that all power originated from the people…but also asserted that this power was being exercised by the people of their several states through the conventions of their states. The states, as bodies formed from their separate populations and existing prior to the Constitution, were the parties to the Constitution – not the body of citizens of the United States as a whole. This truth is further affirmed within the text of the Constitution itself. Article VII says,
“The ratification of the conventions of nine states, shall be sufficient for the establishment of this Constitution between the states so ratifying the same.”
Clearly, this depicted the ratification of the new Constitution as an agreement between the several states acceding to it. As such, the relevant context from the time, both within and without the Constitution, points to the preamblatory comments that say…
“We the people of the United States, in order to form a more perfect union, establish justice, insure domestic tranquility, provide for the common defense, promote the general welfare, and secure the blessings of liberty to ourselves and our posterity, do ordain and establish this Constitution for the United States of America.”
…as meaning that the “we the people” were acting through their separate states. When “the people” formed the Union, it was not as an aggregate mass of individual people spanning from the northern tip of Maine to the southern border of Georgia. Rather, it was as political bodies, acting through their particular states, which were the parties to the Constitution.
That this view was the original intention is affirmed by Madison in Federalist #39,
“On examining the first relation, it appears, on one hand, that the Constitution is to be founded on the assent and ratification of the people of America, given by deputies elected for the special purpose; but, on the other hand, that this assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State – the authority of the people themselves. The act, therefore, establishing the Constitution will not be a national but a federal act.
“That it will be a federal and not a national act, as those terms are understood by the objectors – the act of the people, as forming so many independent States, not as forming one aggregate nation – is obvious from this single consideration: that it is to result neither from the decision of a majority of the people of the Union, nor from that of a majority of the States. It must result from the unanimous assent of the several States that are parties to it, differing no otherwise from their ordinary assent than its being expressed, not by the legislative authority, but by that of the people themselves. Were the people regarded in this transaction as forming one nation, the will of the majority of the whole people of the United States would bind the minority, in the same manner as the majority in each State must bind the minority; and the will of the majority must be determined either by a comparison of the individual votes, or by considering the will of the majority of the States as evidence of the will of a majority of the people of the United States. Neither of these rules has been adopted. Each State, in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal and not a national constitution.”
In these two paragraphs, we witness the utter and complete destruction of the incorporationist argument as it is drawn from the Preamble. Quite obviously, the intention of the men writing the new Constitution, and one of the arguments they used to convince their contemporaries to ratify it, was that the States would be treated as sovereign powers acceding to the Constitution as separate entities. The later arguments, based as they were on partisan misinterpretations which were then carried through, cannot rightly be given serious weight.
Now for the second argument, which is that the Constitution is the supreme law of the land, and therefore, acts of the federal government cannot be challenged by the states in any capacity.
We should note that the first part of this argument, at least, is something of a straw man. Nobody has argued, or argues today, that the Constitution is not the supreme law of the land. But we should also note that the latter assertion in the incorporationist argument does not follow from the former. The Constitution itself, as well as the arguments used to garner support for it for ratification, clearly show that the states yielded up only as much of their full, sovereign, plenipotentiary powers as they had voluntarily acceded to yield when they ratified the Constitution – and no more. The 10th amendment makes this clear, and the Supremacy Clause in Article VI, far from denying power to the states, actually affirms the vast bulk of their powers that were not specifically ceded to the federal government – the federal government could only overrule the states on those things which were specifically granted to it “in pursuance” of the division of powers framed into this document. Everything else was beyond federal reach.
As such, the supreme law of the land says that in most areas, the federal government is not supreme over the states. The federal government is as bound and limited by what the Constitution says about it as the states are.
The point to this is that, per what the Constitution actually says, the states are never, not once, ever denied the right to judge for themselves the constitutionality of an act of the federal Congress (or, by extension, an act of either of the other two branches). Nowhere does the Constitution prohibit the states from making this judgment on their own authority, nor does the Constitution ever actually delegate that power to the federal judiciary. Now, judicial review can be understood as an implied power of the federal courts – it makes sense that the judicial branch of the federal government would have the right to pass judgment on acts of the other two. However, because this same power was never once explicitly given only to the federal bench, nor denied to the states, it logically follows that judging the constitutionality of federal acts (and therefore whether to nullify or not) is a power held by the states concurrently with the federal judiciary.
As those who established, ratified, and ordained the Constitution, the states (representing their separate peoples) certainly do have the right to stand in judgment of federal actions. The incorporationist theory of federalism is completely contrary to the explicit statements and intentions of those Founders who were most responsible for drafting the Constitution. The compact theory, on the other hand, was explicitly affirmed by them, and thus finds much greater support from the origination of our system of government than does the notion that the federal government is a creature of the people en masse, and that the states are subordinate and “unlimited in their submission” to the federal government.
The incorporationist doctrine should be rejected. The simple fact of its long use lends it no credibility – a bad idea is still bad, even if it has the weight of long usage behind it. If constitutionalists want to get back to the Constitution as it was really meant to be, then we must swing the pendulum back towards an affirmation of states’ rights under the compact theory.
Written by Tim Dunkin.