Federal Overreach, the States, and the Courts


The constitution is wildly out of context in today’s uber-modern world. We have the Internet after all, which the founders could never have foreseen. We don’t need to arm ourselves like the citizen militias of yesteryear– we have law enforcement to protect us! The “archaic, out of context, constitution” is a favorite argument of today’s progressives (and many republicans) who clamor for a more bloated, all-powerful centralized government. The founders’ philosophies are obsolete, the constitution is a living and breathing document, say the progressives. But their hip new ideas are actually just dressed-up regurgitations of old, power grabbing endeavors from as long ago as the late 1700s.

Thomas Jefferson and James Madison didn’t have to predict our technology and societal advances in order to understand that human nature would reliably produce self-serving politicians with insatiable appetites for power. In 1798, Jefferson and Madison spotted the wolf in sheep’s clothing when the Aliens and Seditions Acts were passed. Briefly, these acts empowered the president to make law, be subjective about the extent/limits of free speech, and transfer the powers of judging a person from the courts to the president. It wasn’t just the direct consequences of these new laws that were problematic, but also the dangerously tyrannical precedent of individual freedoms being seized by the stroke of a president’s pen. (Sound familiar?)

Luckily for every American since 1798, Jefferson and Madison decisively took action with their respective Virginia and Kentucky Resolutions of 1798. Motivated by the despotic inclinations of President John Adams, their resolutions forcefully reiterated “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.” In Jefferson’s Kentucky resolution, when a state declared a federal law to be unconstitutional, that law was “void and of no force,” and thus nullified.

Jefferson wisely saw that the judiciary’s role was being dangerously diminished, writing that “this would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will, and not from our authority” [emphasis mine]. The president had given himself the power to judge and sentence individuals, even when he was the sole accuser and his mere suspicions were the only presentable evidence. By highlighting and fortifying the role of the courts, Jefferson distinguished the United States from the European monarchies who could imprison citizens on a whim and throw away the key.

John Madison devised the theory of Interposition, where states join together and challenge the offending federal law rather than simply declaring it null and void. But seeing the overreach for exactly what it was, Interposition declared that states were bound by a duty to “arrest the progress of evil.”

Thomas Jefferson and James Madison knew that presidential overreach was dangerous and unconstitutional; at great personal risk, they secretly wrote the Kentucky and Virginia Resolutions of 1798. Today, progressives try to dismiss their philosophies as archaic and outdated, but it’s clear that they are as relevant as ever. What’s missing from our current political landscape is more statesmen like Jefferson and Madison who are willing to stand against the bloating federal government as it continues to encroach and threaten what individual liberties we have left.






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