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.

Alien and sedition acts
Alien and Sedition Acts

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.”

John calhoun
John C. Calhoun opposed the "Tariff of Abominations," which he believed was an unconstitutional exercise of federal power.

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.

Andrew jackson king andrew
This political cartoon represents the views of President Andrew Jackson's political opponents, who labeled him "King Andrew I" for his exercise of executive power, and shows him trampling on the Constitution.

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).

Test Your Knowledge

  1. Question 1 of 3

    The Alien and Sedition Acts

  2. Question 2 of 3

    The Virginia and Kentucky Resolutions

  3. Question 3 of 3

    In the context of the Nullification Crisis, nullification is the idea that

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Except where authorized by people through the Constitution, government does not have the authority to limit freedom.
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A system of distinct powers built into the constitution, to prevent an accumulation of power in one branch.
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The people delegate certain powers to the national government, while the states retain other powers; and the people, who authorize the states and national government, retain all freedoms not delegated to the governing bodies.
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Fairness or reasonableness in the way people are treated or decisions are made.
private property
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limited government
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representative government
(or republican government) Form of government in which the people are sovereign (ultimate source of power) and authorize representatives to make and carry out laws.
republican government
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civil discourse
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Federalist Papers
A series of 85 essays written to convince the people of New York to ratify the Constitution. The authors were James Madison, Alexander Hamilton, and John Jay. These documents are considered to be the most authoritative explanation of the political theory of the Constitution.
First Amendment
Ratified in 1791, it protects the freedom of speech, the freedom of religion, freedom of the press, freedom to assemble, and freedom to petition the government. “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.”
Law of Supply
As the price drops, the quantity supplied also drops.
Fourth Amendment
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Tenth Amendment
Ratified in 1791, it states that the powers not enumerated or delegated in the Constitution are reserved for the states and the people. “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.”
Eighth Amendment
Ratified in 1791, it protects against excessive bail and fines and cruel and unusual punishments. “Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.”
Ninth Amendment
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Preamble
An introductory statement, preface, or introduction.
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Cruel and unfair treatment by people with power over others.
Tyrannical
Using power over people in a way that is cruel and unfair.
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Before becoming the second President of the United States, John Adams served as the country’s first Vice President under George Washington. Adams was an advocate of American independence from Britain and a Federalist.
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Founding Father John Jay was one of the signers of the Treaty of Paris and served as the first Chief Justice of the United States. He was also one of the authors of the Federalist Papers.
Third Amendment
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Ratified in 1791, it protects the rights of impartial jury trials, the right to be informed of the accusations against you, the right to be confronted by witness, and the right to be assisted by counsel. “In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.”
Seventh Amendment
Ratified in 1791, it protects the right of jury trials in law suits dealing with more than twenty dollars and protects against reexamination of the trial in any court if decided by a jury. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.”
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French political thinker and historian, Alexis de Tocqueville is best known for his works Democracy in America and The Old Regime and the Revolution. He visited the U.S. in the 1830s and wrote admiringly about many aspects of American law and society.
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Thirteenth Amendment
The Thirteenth Amendment to the Constitution abolished slavery and involuntary servitude, except as punishment for a crime. “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Section 2. Congress shall have power to enforce this article by appropriate legislation.”
Framers
The group of people who actually attended the Constitutional Convention and participated in writing the Constitution.
Fourteenth Amendment
Ratified in 1868, it states that all people born or naturalized in the United States are citizens and ensures that “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Sixteenth Amendment
Ratified in 1913, the Sixteenth Amendment gave Congress the ability to collect income taxes. “The Congress shall have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several states, and without regard to any census of enumeration.”
Eighteenth Amendment
atified in 1919, the Eighteenth Amendment introduced Prohibition, the period of United States history when the manufacture, sale, and transportation of alcohol was made illegal throughout the country. “Section 1. After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited. Section 2. The Congress and the several states shall have concurrent power to enforce this article by appropriate legislation. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by the legislatures of the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
Twentieth Amendment
The Twentieth Amendment was ratified in 1933, and it establishes procedures for presidential succession and the start and end of federal officials’ terms of office. “Section 1. The terms of the President and Vice President shall end at noon on the 20th day of January, and the terms of Senators and Representatives at noon on the 3rd day of January, of the years in which such terms would have ended if this article had not been ratified; and the terms of their successors shall then begin.
Twenty-First Amendment
In 1933, the Twenty-First Amendment repealed the Eighteenth Amendment, ending Prohibition. “Section 1. The eighteenth article of amendment to the Constitution of the United States is hereby repealed. Section 2. The transportation or importation into any state, territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited. Section 3. This article shall be inoperative unless it shall have been ratified as an amendment to the Constitution by conventions in the several states, as provided in the Constitution, within seven years from the date of the submission hereof to the states by the Congress.”
English Bill of Rights
Passed by the British Parliament in 1689, the English Bill of Rights limited the power of the British monarch, outlined the rights of the Parliament, and guaranteed Protestants the right to bear arms.
Parliament
The legislative body of the United Kingdom (known as Great Britain or England during the Founding era).
Benjamin Franklin
One of the Founding Fathers of the United States, Benjamin Franklin was a statesman, author, publisher, scientist, inventor and diplomat. He served in the Second Continental Congress during the American Revolution and helped draft the Declaration of Independence. In addition, Franklin helped negotiated the Treaty of Paris which ended the Revolutionary War and later served as a delegate to the convention that produced the U.S. Constitution.
Suffrage
The right to vote.
Republic
A government in which the power belongs to citizens through the right to vote.
Fifteenth Amendment
Ratified in 1870, it states that the right could not be restricted based on “race, color, or previous condition of servitude.” “Section 1. The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude. Section 2. The Congress shall have power to enforce this article by appropriate legislation.”
Seventeenth Amendment
Ratified in 1913, the Seventeenth Amendment introduced direct election of Senators. “The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years; and each Senator shall have one vote. The electors in each state shall have the qualifications requisite for electors of the most numerous branch of the state legislatures. When vacancies happen in the representation of any state in the Senate, the executive authority of such state shall issue writs of election to fill such vacancies: Provided, that the legislature of any state may empower the executive thereof to make temporary appointments until the people fill the vacancies by election as the legislature may direct. This amendment shall not be so construed as to affect the election or term of any Senator chosen before it becomes valid as part of the Constitution.”
Nineteenth Amendment
Ratified in 1920, the amendment stated that a citizen’s right to vote must not be restricted based on gender. “The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of sex. Congress shall have power to enforce this article by appropriate legislation.”
Direct Democracy
Direct democracy is a political system in which the people vote directly on policies or laws, as opposed to voting for representatives who enact laws on their behalf.
Arbitrary
Not planned or chosen for a particular reason; done without concern for what is fair or right.
Judicial Review
The process by which courts analyze the constitutionality of an act of government.
Majority rule/minority rights
laws may be made with the consent of the majority, but only to the point where they do not infringe on the inalienable rights of the minority.
Fiat
An arbitrary order or decree.
Property
Something that is owned by a person, business, etc. This includes possessions, beliefs, faculties, and opinions, and the fruits of one's labor.
Democracy
A government in which the power is held by the people.
Electoral College
A body of electors chosen by each state to vote for the president and vice president of the United States.
Virtue
Conduct that reflects universal principles of moral and ethical excellence essential to leading a worthwhile life and to effective self-government. For many leading Founders, attributes of character such as justice, responsibility, perseverance, etc., were thought to flow from an understanding of the rights and obligations of men. Virtue is compatible with, but does not require, religious belief.