New Debate in the Liberty Forum: “Understanding the Principles of 1798”

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.”[1]

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?[2]  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.

Reader Discussion

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on June 11, 2012 at 23:11:12 pm

Dave, I am going to strongly agree with you. The Legislature psaess laws to apply to everyone, and the Judiciary applies those laws - and the traditional laws of society as established in previous court decisions. This latter is what we call the "Common Law" to the specific facts of each case.When the court applies law, it takes the general rules (Common Law and Legislative Law both) and applies those laws to the specific case in front of them. This is where the investigation of the facts is involved. You have to collect the relevant facts to determine which rule (law) applies. Then if the law is improperly applied to the facts of the case, it is up to the appeal courts to correct the application. If the appeal court doesn't find the facts needed to apply law, they kick it back to the trial court for further investigation. In this case the courts have carefully investigated and weighed the existing evidence, and have determined that they are making their decision based on the best existing evidence. All the talk about something being overlooked? Forget it. Twenty-one court decisions before this week by Judges of all political stripes tells us that every possible aspect has been investigated. The numerous appeals shows that the facts are there, and the laws have been applied properly. What more can we ask?One fact that all the courts have been applying is that - based on best available evidence - Terri Schiavo would not want to continue to exist in this condition. Frankly, I wouldn't either, but that is neither here nor there. Based on best evidence, this decision has been made based on her desires. There has been no judicial activism in this case. What there has been is a totally unconstitutional action by the Congress and the President to change the rules in mid stream because their supporters don't like the outcome of the Rule of Law. In the legal sense, this really scares me. This is a nation of the Rule of Law under the Constitution. If we lose that, we have lost America as we know it. Does the outcome of the judicial process so far meet the needs of maintaining the sanctity of life in a religious sense? Or in the sense of reality regarding Terri's actual consciousness? I have my own opinion (which I think I have expressed on my own blog), but I don't have the ability to defend it as well as I do the legal aspects. The facts and the procedures are a lot less clear in those areas. All I can say is that they don't really apply to the legal considerations. The legal considerations are the ones that apply in this case now.

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on June 11, 2012 at 23:54:54 pm

I think that there is a place for both arms of government in this sort of thing.Courts will awalys be required to interpret the laws and adjudicate disputes. I believe that they have properly done so in this case. You might have a problem with some of the laws they have interpreted, but I haven't seen anything to convince me they haven't interpreted those laws correctly.Perhaps we do need some new laws on these issues. Perhaps Florida has poor laws, but claiming that this case shows any sort of judicial activism seems to be a pretty big stretch to me.

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