Earlier in the year I put an article on Alfred the Great Society about states' rights and the Constitutional option that states have to nullify federal laws. Titled "Historic Breakthrough in American Politics," the article gives a little history lesson on the founding of America.In this article I pointed out that from from May 25 to September 17, 1787, the American founders met for a “Grand Convention at Philadelphia.” Ostensibly their purpose was to discuss revisions to the Articles of Confederation (the United States’ governing charter before the present constitution). However, it quickly became apparent that the Articles were inadequate. For one thing, because the Articles required all the states to agree on something before action could be taken, any single state could blackmail all the rest. Moreover, others feared that because the states were so powerful and Congress so weak, the latter could do little to block outside invasions.
That is one of the reasons that many of the delegates to the Constitutional Convention believed America needed a stronger and more centralized government. George Washington said, for example, that “there should be lodged somewhere a supreme power to regulate the general concerns of the Confederated Republic, without which this Union cannot be of long duration.”
At the same time, however, many of the delegates were concerned that if too much power was handed over to the centralized government, then the states would lose their historic sovereignty. (After all, their Declaration of Independence had declared them to be “free and independent states”, language which clearly assumed state sovereignty.)
Various plans were put forward for how to achieve a government that was strong enough to deal with matters of national concern, but which had sufficient checks and balances to prevent it from becoming too strong or tyrannical. After much discussion, a proposal was put forward by Roger Sherman from Connecticut called the Great Connecticut Compromise. According to this plan, the legislative branch of the American Congress would consist of two houses. One house of Congress – the House of representatives – would be made up of representatives from the states based on population, while in the other house – the Senate – each state would be equal and have two senators. Since the government was designed to be a republic rather than a democracy, it was agreed that the senators would not be elected by the people directly but would be chosen by the respective governments of the states.
When the Constitution was finally adopted on September 17, 1787, it incorporated these and other ideas in order to achieve a balance of power between the states and the federal government. However, even this was not considered a sufficient safeguard for preventing what many dreaded: the eventual consolidation of power within the central government. In response to this fear, the states of New York, Rhode Island and Virginia each included in their written ratifications of the Constitution statements asserting the right of their states to secede from the union should they ever desire to do so. New York’s ratification read in part: “That the Powers of Government may be reassumed by the People, whensoever it shall become necessary to their Happiness…” Virginia’s read: ‘…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 [the Virginians] 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…”
In 1791, a Bill of Rights was added to the Constitution to further protect states’ rights. The Bill of Rights included various amendments to the constitution, the tenth and final one which read, “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.”
The 10th Amendment made explicit that the American federal government had no authority outside what was directly delegated to it by the Constitution. The historian Thomas Woods explains the 10th Amendment like this:
The Tenth Amendment guaranteed the states’ rights to self-government. If the states had not delegated a particular power to the federal government, and if the Constitution had not forbidden the power to the states, then it remained as reserved to the states or the people. For Thomas Jefferson this was the cornerstone of the entire Constitution. Its presence in the Bill of Rights serves to remind us of the importance of self-government in the minds of Americans of the early republic.
One doesn’t have to speculate on how to interpret the 10th amendment, because early on in the history of the republic there were test cases. In 1798 Congress passed the Alien and Sedition Acts, exercising authority not directly delegated by the Constitution. In response, Thomas Jefferson and James Madison secretly authored the Kentucky and Virginia Resolutions. The Kentucky Resolution stated that “the several States composing the United States of America, are not united on the principle of unlimited submission to their General Government” and that “whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson went on to write that
“where powers are assumed [by the federal government] which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them“
Thomas Jefferson put it in a letter to W. Crawford like this, “If any state in the Union will declare that it prefers separation… to a continuance in union… I have no hesitation in saying, ‘let us separate.’” Again, in a letter to Madison in August 1799, he wrote, “[We should be] determined…to sever ourselves from the union we so much value rather than give up the rights of self-government…in which alone we see liberty, safety and happiness.”
Many states followed Jefferson in asserting their right to secede from the union should Congress overstep their constitutional bounds. For example, in 1803, the states of New England threatened to secede because of their opposition to Jefferson’s Louisiana Purchase. In 1807, the New England states again threatened to secede over the Embargo Act. In 1812, the New England states threatened to leave the Union over the fact that Louisiana had been allowed to become a state. In 1860, the state of Vermont considered secession. Even Abraham Lincoln, in his early career, advocated this right, saying, “Any people anywhere, being inclined and having the power, have the right to rise up and shake off the existing government and form a new one that suits them better. This is a most valuable and most sacred right, a right which we hope and believe is to liberate the world.”
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