The justice's dismissal of common law precedent in the context of written law is a distraction, based on a misreading of history.
In the latest debate at the Liberty Forum the great Madison scholar Colleen Sheehan, the author of James Madison and the Spirit of Republican Self-Government, seeks to recover the meaning of the Kentucky and Virginia Resolutions of 1798 for the genius of the American constitutional system and the protections it extends to individual liberty. She argues from the beginning of the essay:
In the pages of The Federalist, Publius reassured not only his contemporaries but future generations of Americans, that if there be times in the life of our republic in which one or more branches of the national government should shamelessly exercise power beyond that prescribed by the Constitution, the state legislatures will be ever ready to mark the violation and “sound the alarm to the people.”
Nine years after the institution of the new government under the Constitution, in response to the notorious Alien and Sedition Acts, the state legislatures of Kentucky and Virginia did precisely this. Thomas Jefferson drafted the Kentucky Resolutions and James Madison penned the Virginia Resolutions. In some of the toughest, most exacting political language of America’s political tradition, Jefferson and Madison threw down the gauntlet: the national government had broken trust with the sovereign authority, and they were put on notice that such violations of the people’s fundamental rights and liberties would not be tolerated by a free and self-respecting people.
Would any of the current state legislatures sponsor such resolutions today if the national government were to engage in a “deliberate, palpable, and dangerous” exercise of power not granted by the Constitution? If not, is it because the state legislatures don’t dare to challenge the national government, the way that Jefferson and Madison did? Or is it because they know such efforts would be futile? Do they accept the tremendous growth of national governmental power in the twentieth century and view the states are merely subordinate administrative units that must obey the powers in Washington? Or, like the Federalist-controlled state legislatures in the other states in 1798, do they reject the Jeffersonian and Madisonian view that the states have a role in checking abuses of power by the national government, supposing that this role is the sole province of the national judiciary?
American historian Todd Estes and political theorist James Read provide great responses to Sheehan’s essay. Estes evaluates further Madison’s federalism understanding and its dependence on and protections it affords the people. Read considers where individual liberty is best protected in our federal system: the states or the federal government.