Tenth Amendment Center: The Founders on Federal Enforcement
Some people believe that all branches of the federal government should fully enforce all federal laws until they’re overturned by a court or repealed by Congress. But the Founders disagreed. In many cases, vehemently.
In response to the hated Stamp Act, Patrick Henry drafted a series of resolutions denouncing the Act and declaring it to be “illegal, unconstitutional and unjust.” The Virginia House of Burgesses passed the resolutions in late May 1765.
An additional resolution foreshadowed nullification by declaring that Virginians were not obliged to obey any tax laws not enacted by their Assembly.
Resolved, That his majesty’s liege people, the inhabitants of this colony, are not bound to yield obedience to any law or ordinance whatsoever designed to impose any taxation whatsoever upon them, other than the laws and ordinances of the general assembly aforesaid.
While this resolution was not passed, it was circulated in a number of prominent newspapers and gave Henry recognition among his contemporaries as “the man who gave the first impulse to the ball of revolution.”
The principles in this resolution took hold in spite of legislative defeat, especially in Boston, where Samuel Adams and the “Loyal Nine” took to the streets. By October of that year, just two weeks before the Act was set to go into effect, John Hancock sent a letter to his London agent, Johnathan Bernard, capturing the spirit of the time.
The people of this country will never suffer themselves to be made slaves of by a submission to the damned act.
While these events happened many years before ratification of the Constitution, the notion that some laws should be rejected or even actively resisted was deeply-rooted in the American tradition.
During the 1788 Hillsborough Convention, North Carolina delegates opposing ratification of the Constitution outnumbered those in favor by about 2-1. Archibald Maclaine was a well-known attorney in the state and a leader in opposition to the Stamp Act years earlier. He argued in favor of ratification and suggested the same kind of resistance as a response to federal overreach. He said,
If Congress should make a law beyond its powers and the spirit of the Constitution, should we not say to Congress, ‘You have no authority to make this law. There are limits beyond which you cannot go. You cannot exceed the power prescribed by the Constitution. You are amenable to us for your conduct. That act is unconstitutional. We will disregard it and punish you for the attempt.’
In the Massachusetts Ratifying Convention, federalist Theophilus Parsons made a similar case. He said, “An act of usurpation is not obligatory; it is not law; and any man may be justified in his resistance.”
Even Alexander Hamilton, writing in favor of ratification in Federalist #33 said that federal acts outside of the Constitution would not be supreme. Instead, he noted,
These will be merely acts of usurpation, and will deserve to be treated as such.
Prominent founders also held the view that some federal acts shouldn’t be enforced at all, even without a court striking them down or a congressional repeal.
Thomas Jefferson put this principle into action during his presidency, saying he had a duty to arrest the execution of the Sedition Act. He explained his actions in an 1804 letter to Abigail Adams:
I discharged every person under punishment or prosecution under the Sedition law, because I considered & now consider that law to be a nullity as absolute and as palpable as if Congress had ordered us to fall down and worship a golden image; and that it was as much my duty to arrest it’s execution in every stage, as it would have been to have rescued from the fiery furnace those who should have been cast into it for refusing to worship their image. [Emphasis added]
Jefferson discussed this further in a letter to Judge Spencer Roane.
…each department is truly independent of the others, and has an equal right to decide for itself what is the meaning of the Constitution in the cases submitted to its action; and especially, where it is to act ultimately and without appeal.
James Madison made a similar argument in an 1834 letter:
As the Legislative, Executive & Judicial Departments of the U. S. are co-ordinate, and each equally bound to support the Constitution, it follows that each must in the exercise of its functions, be guided by the text of the Constitution according to its own interpretation of it; and consequently, that in the event of irreconcileable interpretations, the prevalence of the one or the other Departmt. must depend on the nature of the case, as receiving its final decision from the one or the other, and passing from that decision into effect, without involving the functions of any other. [Emphasis added]
George Washington put this principle into practice in 1796. That year, the House of Representatives tried to force the president to submit documents that related to the Jay Treaty. Washington wrote a lengthy letter in response. He referred to the House resolution as a “request,” and made the case that the Constitution did indeed “forbid a compliance” with it.
In short, President Washington didn’t wait for the courts to tell him what he could or could not do. He simply made his own determination of constitutionality and acted on it.
Years later, President Andrew Jackson followed the advice of these founders and took the same position in his veto message regarding the Bank of the United States:
The Congress, the Executive and the Court must each for itself be guided by its own opinion of the Constitution. Each public officer who takes an oath to support the Constitution swears that he will support it as he understands it, and not as it is understood by others.
Today, people from all ends of the political spectrum would be wise to heed this advice and to follow the example of the Founders, primarily George Washington and Thomas Jefferson.
In short, when making the case for federal enforcement, don’t focus on the fact that something was merely passed by Congress or signed by a president. Instead, start and end with one thing, the Constitution.
As Thomas Paine wrote in Common Sense (1776), “in America the law is king.” Under the American system, the Constitution is the “supreme law of the land.” Federal acts, laws, rules, regulations or orders to the contrary be damned.
Michael Boldin
June 28, 2018 at 09:15AM
