Divorcing Ourselves from Akhil Reed Amar (Part II)
Akhil Reed Amar wants Americans to “break up” with Thomas Jefferson and instead toast other Founders such as Alexander Hamilton and John Adams. In the first post in this series, I dealt with Amar’s attack on Jefferson based on the Virginian’s opposition to the national bank. Amar also finds fault with Jefferson because “[h]e fathered the false idea that each state could legitimately ‘nullify’ a federal law on its own say-so (as distinct from sounding political alarms against unconstitutional federal actions, filing lawsuits, or doing other things that ultimately relied on national legal and political dispute-resolution mechanisms).”
Amar ignores the history of the American Revolution and how Jefferson’s ideas about ‘nullification’ were at the heart of the colonies’s dispute with Parliament. In 1774, as the delegates traveled to Philadelphia for a meeting of the Continental Congress, they certainly contemplated the various local resolutions and newspaper essays offering suggestions on the goals and directions of a congress. In addition, many of the delegates were familiar with more widely circulated pieces such as Thomas Jefferson’s Summary View of the Rights of British America. The Summary Review, most historians agree, provides a snapshot of the forward-thinking patriot mindset as the First Continental Congress convened.
Jefferson’s Summary View was initially written as proposed instructions to Virginia’s delegates but was published as an essay in August 1774. Jefferson urged a “humble and dutiful” address to the king, protesting the “unwarrantable encroachments and usurpations” of Parliament. Such an address would make clear that George III was the “central link” of the British Empire in his executive office. In this capacity, Jefferson urged the king to recognize that the colonies were outside the jurisdiction of Parliament and should be governed by their own duly elected legislatures. Jefferson went so far as to describe Parliament as “a body of men foreign to our constitutions” bent on causing “further discontents and jealousies among us.” Hence, Jefferson entreated the king to exercise his veto power to protect the colonies from the encroachments of Parliament. Of course, Jefferson did not give George III a free pass but also complained that the king had left the colonists to the intrigues of evil ministers and parliamentarians.
Further, Jefferson chastised the king for acting outside his authority in many instances, such as sending armies to America without the consent of the people. Jefferson implored the king to “[l]et no act be passed by any one legislature, which may infringe on the rights and liberties of another.” But the king was not necessary to nullify the many offending acts of Parliament. Jefferson was unequivocal: “The true ground on which we declare these acts void is, that the British parliament has no right to exercise authority over us.” Thus, nullification was at the heart of the American Revolution.
Based on this history, it is no surprise that when Jefferson saw the American Congress disregarding the Constitution’s careful enumeration of powers, he recalled the colonial dispute with Parliament. When Congress passed and President Adams signed the Alien and Sedition Acts, Jeffersonians understood that loose constitutional interpretation had been put into another gear. The Sedition Act made criticism of the national government a crime. It permitted the president to deport—with no due process—aliens he deemed dangerous. This legislation threatened the right to self-government because the people had delegated, for example, no power to Congress to legislate regarding speech. In fact, the First Amendment specifically prohibits Congress from legislating on that subject.
As for the remedy, in the Kentucky and Virginia Resolutions, Jefferson and Madison pointed to nullification and interposition, whereby they declared the Acts void and of no force. In his draft of the Kentucky Resolution, Jefferson posited that “where powers are assumed 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, (casus non foederis), 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.”
Americans should be thankful that during the American Revolution, Jefferson dared to do more than sound a political alarm against Parliament’s statutes, file a lawsuit, or work within the British “legal and political dispute-resolution mechanisms.” They should also be thankful that Jefferson returned to his revolutionary roots in 1798 and offered nullification as a remedy for the Alien and Sedition Acts.
Jefferson’s and Madison’s Resolutions stirred the American people and resulted in the Federalists being tossed out of office in the next election. In the so-called “Revolution of 1800,” the Jeffersonian Republican Party won a 24-seat majority in the House of Representatives and Jefferson was elected to the presidency. Upon taking office, Jefferson suspended all pending prosecutions under the Sedition Act and pardoned those convicted under the unconstitutional Act.
Of course, to properly understand nullification, one must appreciate not just the Summary View but the nature of the union and the locus of ultimate sovereignty. I will discuss this in my next post, which takes up the topic of secession, which Amar lists as another reason Americans should reject Thomas Jefferson.