Horse Sense: Resolves Among America’s Great Charters

*sorry this is a couple days late... my bad...

Considering America’s great charters, the historical revisionists have seen to it that we should forget some, while selectively remembering a few lines from others. For instance, the Declaration of Independence is universally celebrated for its recognition based on the faith-based knowledge of our Creator, that “all men are created equal.” The Declaration is hardly mentioned, however, for its preponderance of words dedicated to the cause of secession from Great Britain, as well as to the explication of timeless rationale for the just revolution against tyrannical governments, wherever they may be, including theoretically and potentially at least, our own. Of course we give an occasional nod towards the Articles of Confederation in history class, mostly incidental to thanking our extraordinarily lucky stars for the powerful central government we now have under the Constitution. So yes, we do generally recognize a fuzzy “Constitution” as the basis for governmental legitimacy and the legitimate exercise of powers, but we almost entirely forget to mention that it was the Kentucky and Virginia Resolves, which reined in the first series of abuses by the federal government and which asserted the States’ role in maintaining constitutional republican government, according to Original Intent. Indeed, written by Thomas Jefferson and James Madison respectively, the Kentucky and Virginia Resolves lay out an eloquent account of nuts and bolts to ultimate sovereignty, which resides with the People of the several States. They also reinforce divided legislative sovereignty, inherent in our unique system of federalism, which is surprisingly still virtually undisputed by the academy or by courts in principle, if not in practice. Dual or divided sovereignty after all, stems directly from the fact that through the aegis of the Constitution, the People of the several States delegate only certain powers to the national or federal government, and they retain everything else at the level of the States. Hence, the beginning of the restoration of our Republic may be the reinsertion of these Resolves, back into the pantheon of America’s great charters. Then we shall return to a Constitution of Rights, as opposed to a Constitution of Powers.
Though the South is most often associated with the doctrine of the Kentucky and Virginia Resolves, in the years after the election of Jefferson and his peaceful political Revolution of 1800, the Northern states recurred to it just as frequently. In 1802, the State of Pennsylvania stopped action by Federal District Judge Peters on behalf of Gideon Olmstead, rendering the Judge’s decision “null and void,” since the Judge had illegally usurped his power and jurisdiction. In 1808-9, Massachusetts, Delaware and Connecticut employed nullification on the Embargo Act. Indeed, the legislative actions and public protests convinced Congress that continuance of the Embargo was untenable. The doctrine of the Kentucky and Virginia Resolves also animated the Hartford Convention in 1814, as surely as it did South Carolina’s Ordinance of Nullification in 1833—a doctrine essentially of state negative aimed at oppressive national laws. In the end, South Carolina’s nullification proved successful in prompting Congress to lower its high and disproportionate tariff duties. It is indeed a measure of the loss of freedom in the country as a whole that, since the War Between the States, Northern and Southern, Mid-West and Western States have all witnessed their scope of sovereignty diminish. With the check and balance provided by States gone, the consolidation feared by Anti-Federalists, by Jeffersonian Republicans, by nullifiers in New England and South Carolina, has come to pass. A look at the U.S. Code or a federal appropriations bill proves that Congress, like the British Parliament, claims the authority to legislate on all subjects whatsoever. Moreover, the Supreme Court’s claim to be the final arbiter on matters of Constitutionality, is largely acquiesced in—which, if you think about it, doesn’t square with the people’s position as ultimate sovereigns. In most cases, elections should serve to check tyrannical rulers. The Resolves addressed those situations when/if the General Government assumed powers egregiously violating States’ reserved powers, or when/if it passed unjust measures that did not operate equally on all citizens or all sections. In such cases, the added safeguard of a state veto, or nullification, was necessary and could very well be the most efficacious solution. As long as there were statesmen and not just politicians in office, peace was maintained and compromise achieved, the Union held together in bonds of affection, fealty and voluntary submission, rather than by chain links of iron.
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Wesley Allen Riddle is a retired military officer with degrees and honors from West Point and Oxford. Widely published in the academic and opinion press, he ran for U.S. Congress (TX-District 31) in the 2004 Republican Primary. Article loosely based on William J. Watkins, Jr., Reclaiming the American Revolution (Palgrave Macmillan, 2004), chapters 4-6. Email: wes@wesriddle.com.