Early Challenges in the Constitutional Republic
The ink was barely dry on the Constitution when the first challenges to its protections arose. These early challenges to the new constitutional republic often involved the meaning of the Constitution itself. What did its words actually mean, and who would get to decide?
The first test of the Constitution came in the late 1790s. As often happens, the threat of war brought claims that restrictions on civil liberties were needed. France was in the midst of a revolution that was growing more radical by the day. It was also at war with England. Support for joining this war was split among political party lines in the U.S. Disagreement arose within Washington’s cabinet, and political parties were born, despite the hopes of the Founders. Many Republicans were urging that the U.S. join the war in support of the French, who had been their ally in the American War for Independence. But many others, including the Federalists, were urging neutrality. They were concerned the U.S. was not ready to fight in another war, and were disgusted at the idea of supporting violent mob-rule in France.
The Federalist-controlled Congress passed the Alien and Sedition Acts, laws intended to quiet newspaper support for the French. The laws made it a crime to publish any “false, scandalous and malicious writing” against the president or Congress, intended to “excite against them ... the hatred of the good people of the United States” (An Act for the Punishment of Certain Crimes Against the United States [Sedition Act] of 1798). The laws would all expire in March 1801.
Though President John Adams did not ask for these measures, he did not oppose them. Believing that morality, religion, and virtue were the best foundations for a free republic, and that freedom of the press traditionally did not mean publishers could not be punished after the fact, he judged them to be constitutional and signed them into law.
The laws were controversial. But were they constitutional? Some states condemned the laws as violating the First Amendment. James Madison, chief author of the Bill of Rights, wrote one of the most famous critiques of the laws, the Virginia Resolution (1798).
He wrote that the laws “ought to produce universal alarm, [for attacking] that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right” (James Madison, Virginia Resolution of 1798).
Kentucky joined Virginia in condemning the laws, but other states judged the law constitutional. For example, New Hampshire called the law “constitutional, and, in the present critical situation of our country, highly expedient.”
Congress also did its own part to judge the constitutionality of the law. Congress issued the “Congressional Report Defending the Alien and Sedition Laws” in February of 1799. This report defended the sedition portions of the Alien and Sedition Acts as a constitutional regulation of speech and press. Since there was no right to libel, Congress said, press freedom could not include libel. Further, liberty of the press meant no prior restraints (bans on publication beforehand), and the law was not a prior restraint. Finally, the laws were “precautionary and protective measures for our security … So eccentric are the movements of the French government that we can form no opinion of their future designs for our country” (Congressional Report Defending the Alien and Sedition Laws, 1799)
Two branches of the national government, as well as individual states had now weighed in on the laws. The debates themselves opened up a larger question. Who had the right to judge whether laws were constitutional? Madison and Jefferson knew that states had an important role to play.
Madison wrote in the Virginia Resolution that “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them” (James Madison, Virginia Resolution of 1798).
In other words, state governments had a duty to insert their authority between the national government and their citizens. They could declare federal acts unconstitutional, but those declarations would have no legal effect.
Thomas Jefferson wrote an even stronger response from the state of Kentucky, asserting, “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” (Thomas Jefferson, Kentucky Resolutions of 1798) Jefferson seemed to advocate that states nullify unconstitutional laws.
Despite Madison and Jefferson’s arguments, though, ten of the then-fourteen states condemned the idea that states were the proper judges of the constitutionality of laws.
The Supreme Court was never asked to rule on the constitutionality of the Alien and Sedition Acts. Though the election of 1800 was close, Adams’s loss was probably due in part to public reaction to the laws. The laws expired on Adams’s last day in office in 1801. Thomas Jefferson, the leader of the Republican party, became the nation’s third president. Adams achieved his goal of keeping the US out of war, but most historians condemn his decision to sign and enforce this series of laws.
There were echoes of this controversy about 20 years later, with the Nullification Crisis. The North had grown increasingly industrialized, while the South remained an agrarian society. Congress passed a tariff (a tax on imports) that, to Southerners, benefited the North at their expense. Vice President John C. Calhoun called it the “Tariff of Abominations.” Congress later passed a lower tariff, but this still did not satisfy many in the South, especially the state of South Carolina.
Calhoun wrote: “[T]he sovereign powers delegated are divided between the General and State Governments, and…the latter hold their portion of the same tenure as the form, it would seem impossible to deny the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition” (John C. Calhoun, “Exposition,” 1828).
Four years later, Calhoun resigned as Andrew Jackson’s Vice President and filled a vacant South Carolina Senate seat. That year South Carolina issued an “Ordinance to nullify certain acts of the Congress of the United States, purporting to be laws laying duties and imposts on the importation of foreign commodities.” The ordinance of nullification stated that the tariff was “null, void, and no law, nor binding upon this State, its officers or citizens.”
The Ordinance also stated that South Carolina would dissolve its union to the U.S. in response to any act “authorizing the employment of a military or naval force against the State of South Carolina...or any other act on the part of the federal government, to coerce the State.” In response, President Jackson asked Congress for exactly that—permission to use force against a U.S. state. The Force Bill of 1833 essentially allowed Jackson to wage war against South Carolina to ensure it complied with federal law. The crisis was averted—temporarily—when Henry Clay’s compromise tariff was passed the same day.
As in 1798, several states condemned the idea that states could or should nullify federal laws. Alabama, for example, called nullification “unsound in theory and dangerous in practice.” Georgia called it “mischievous,” and “rash and revolutionary.” Mississippi lawmakers chided the South Carolinians for acting with “reckless precipitancy.”
These sentiments echoed those of James Madison, who lived to observe the nullification crisis. Though some advocates of nullification believed he would have approved of their actions, Madison called the doctrine of the nullifiers a “colossal heresy.” He hoped that talk of nullification would “yield to moderate councils”.
One important difference between the Alien and Sedition Acts and the Nullification Crisis is that the latter was sectional. Southerners had begun to question whether the national government was any longer representing their interests and to establish the principle that later would support secession from the Union.
Further, he wrote that each individual state “owes fidelity to it [the compact], till released by consent, or absolved by an intolerable abuse of the power created” (James Madison to Nicholas Trist, December 23, 1832).
Though the crisis passed, President Jackson wrote in an 1833 letter, "the tariff was only a pretext, and disunion and Southern Confederacy the real object. The next pretext will be the negro, or slavery question" (Andrew Jackson to Reverend A.J. Crawford, May 1, 1833).