Constitution and Law Series #14:

What Can Be Done About Judicial Usurpation?  State Checking Forces   

By Timothy B. Lewis of the Constitutional Freedom Foundation

The prior three articles discussed indirect political influence, executive checking forces, and congressional checking forces over the judiciary.  This article will discuss similar checking forces possessed by the states.

Checking Forces By State Governments Regarding Federal Court Rulings

It is important that you take care to elect good state legislators since Federalist No. 26 advises:

“…the State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough if any thing improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.” ^[1]

If we are ever going to reclaim our 10^th Amendment rights, it will probably have to start at the state level.  We need to get our state legislators to start thinking in terms of trying to reclaim those rights and becoming vocal about it.

In Federalist No. 46 Madison said:

“[S]hould an unwarrantable measure of the federal government be unpopular in particular States…the means of opposition to it are powerful and at hand.  The disquietude of the people; their repugnance and, perhaps, refusal to cooperate with the officers of the union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices…would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter.” ^[2]

The following cases and the Virginia and Kentucky Resolutions passed in response to the federal  Alien and Sedition Acts (discussed later) are examples of the foregoing sentiments being put into action.

Chisholm v. Georgia (1793)

R. Kent Newmyer tells us:

“The decade before 1800, as well as the one after, was also replete with examples of successful state resistance to the Court-imposed federal law.  For example, Georgia threatened to use force to prevent the enforcement of Chisholm v. Georgia, just as Pennsylvania would do later in regard to U.S. v. Peters (1809).” ^[3]

Robert Eugene Cushman elaborates:

“When the Constitution was before the states for ratification its opponents raised the objection that the clause which provided that the judicial power of the United States should extend to controversies ‘between a State and citizens of another State” (article 3, section 2) would subject the states to suits brought by individual creditors and others who might feel that they had grievances.  This idea was particularly obnoxious because the states had neither the intention nor the desire to repay money, which was owing to loyalists or British subjects, nor to restore the property which had been confiscated during the war.  That the clause in question would authorize suits by citizens against the states was denied by Hamilton in Federalist (No. 81) and was also vigorously repudiated by Madison and Marshall in the Virginia ratifying convention of 1788 (Elliot’s Debates, 2d Ed. III, 533, 555).  That the fears, which had been aroused, were not ill founded, however, was evidenced by the fact that within two years after the organization of the Supreme Court individuals instituted four cases before that tribunal against states of the Union.  The first case which came on for decision was that of Chisholm v. Georgia, 2 Dallas 419 (1793), which involved a suit brought by Chisholm and another, citizens of South Carolina, as executors of an English creditor of the state of Georgia.  Georgia hotly declined to appear to defend the suit, denying the jurisdiction of the Supreme Court to entertain such an action.  The court, however, to the general surprise held that the suit was properly brought and that a state could be sued in the Supreme Court by an individual….Since the state of Georgia still refused to appear as a defendant a judgment by default was entered against the state.

“The decision aroused immediate and bitter opposition.  The lower house of the Georgia legislature passed a bill to punish by hanging any person who should attempt to aid in enforcing the decree of the court.  Other states also protested, for upon the authority of the court’s decision suits were soon instituted against several other states.  Within two days of the handing down of the decision in Chisholm v. Georgia a constitutional amendment was introduced into Congress depriving the federal courts of all jurisdiction in cases brought against a state by the citizens of other states or of any foreign country.  This was ratified in 1798 and became the Eleventh Amendment.  In Hans v. Louisiana, 134 U. S. 1 (1890), the Supreme Court held that a state could not be sued by one of its own citizens.” ^[4]

Elkison v. Deliesseline (1823)

James W. Ely, Jr. tells us that in the 1820s:

“Several southern states passed legislation requiring the free black sailors be detained in custody until their ship left port.  Such acts interfered with the conduct of both interstate and foreign commerce, and the British government strongly protested when the laws were applied to its seamen.  In Elkison v. Deliesseline (1823) Justice William Johnson, in a circuit court opinion, declared that South Carolina’s act was incompatible with congressional power to regulate commerce. South Carolina authorities refused to comply with Johnson’s ruling, and the Supreme Court never reviewed the constitutionality of the Negro Seamen’s Acts.  As this episode suggests, throughout the antebellum years [the years before the Civil War], the Supreme Court was under intense pressure to respect state police power.  This in turn may explain some of the analytical confusion that characterized cases involving state power over interstate commerce.” ^[5]

Again, our current discussion is about political structures and checking mechanisms.  Political powers can always be abused.  I presume that most of us would agree the state laws involved in the foregoing case were odious in nature – moral principle was on the side of the court ruling and against the state position.  But what if the positions were reversed regarding a different issue?  What if moral principle were on the side of the states and against the federal judicial position on a different issue?  I would hope that you could see that just because you think a certain political checking mechanism was abused before, that should not cause you to conclude that its use in all contexts is necessarily wrong.   The mechanism itself is morally neutral.  Moral concerns come into play when we consider when the mechanism should or should not be used in the context of specific issues.

Worcester v. Georgia (1832)

This case was discussed in article #12.  With the President’s cooperation, the state of Georgia ignored a U. S. Supreme Court order to release a man convicted of a crime in state courts under state law.  The U. S. Supreme Court ruled the state criminal law in question to be unconstitutional.  But with nobody willing to enforce its ruling, the Court was powerless to do anything about it.

The Dred Scott Case (1857)

By way of historical background, Kraus tells us:

“The extension westward of plantation culture had brought slavery to Missouri and other parts of the Louisiana Purchase.  In 1819 Missouri’s application to enter the Union suddenly precipitated a crisis.  At that time there were twenty-two states, evenly divided between slave and free.  Missouri’s entrance would tip the balance in favor of the South.

“Northerners, fretful over alleged Southern aggressiveness and genuinely fearful of the spread of slavery, determined to place reservations on Missouri’s application….

“The whole country was quickly in an uproar….Each side threatened secession if it failed to win its point.  National leaders worked toward compromise.  In March, 1820, a compromise measure was carried through Congress by a close vote after days of stormy debate.  When Missouri was admitted to the Union she entered as a slave state, but she was balanced by Maine (formerly part of Massachusetts) as a free state.  Slavery was to be excluded from the remaining territory of the Louisiana Purchase north of the line 36 degrees, 30 minutes.  The South thus conceded federal control over slavery in the territories.” ^[6]

This became known as the Missouri Compromise.  All the way up to the Civil War, similar compromises were made to keep the free states and slave states politically balanced and keep the South from seceding.  Moving forward to 1857, seeing all the turmoil between North and South in the political arena over slavery, President Buchanan hoped that the Supreme Court in the Dred Scott case would settle the slavery issue once and for all. ^[7]    Kraus continues:

“Dred Scott, a Negro slave, had been taken from Missouri by his master to Illinois and Minnesota Territory, where he had resided for two years, and then returned.  Some time later he sued for his liberty in Missouri courts on the ground that residence in a free state and in territory north of the Missouri Compromise line had automatically conferred freedom upon him….

“[In the U. S. Supreme Court] Dred Scott’s claim was denied on three grounds: (1) Negroes could not be United States citizens, therefore they could not sue in federal courts, (2) Illinois laws could not affect his situation in Missouri, where he now resided, and (3) residence in Minnesota Territory, which was north of 36 degrees 30 minutes, did not confer freedom as the Missouri Compromise itself was unconstitutional.

“Northern papers blazed with the inflammatory news – ‘The Missouri Compromise Unconstitutional – The Triumph of Slavery Complete.’  It was plain to everyone that the court was heavily biased in favor of the South, seven of the nine Justices were Democrats, and five of the seven were Southerners.  Their decision meant that slavery followed the flag; squatter sovereignty seemed dead. [I presume he meant by this that the ability of the people in a given territory to decide for themselves whether their state would be a free state of a slave state under the Kansas-Nebraska Act, was dead and wherever the U. S. flag flew, slavery would have to be recognized.]

“Without hesitation the North spurned the verdict.  The prestige of the court, over weighted as it was in the South’s favor, had been declining for some years in Northern opinion and now it almost vanished.  Northern legislatures condemned the decision; New York announced that any slave brought to that state would be immediately freed, and an individual even passing through the state with a slave risked a prison term of up to ten years.  Press and pulpit denounced the court, and people everywhere in the North felt that the decision was not binding upon them.” ^[8] * * *

“…It was almost impossible now to recover fugitive slaves in most Northern states, and the Wisconsin legislature, in 1859, declared the Dred Scott decision null and void.” ^[9]

By way of contrast, the South’s response to the Dred Scott decision was radically different.  Says Kraus:

“Triumphant Southerners were now demanding that the [Democratic] party go beyond the older principle – that Congress could not force slavery out of the Territories – to the more radical position that it was obligated to defend slavery in them.” ^[10]

As the North and South divided further over this and other issues, secession fever consumed the South and they finally crossed the threshold when Lincoln won the presidency.  Perhaps referring to the Dred Scott decision, in his first inaugural address Lincoln warned:

“If the policy of the government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court…the people will have ceased to be their own rulers, having to that extent practically resigned their government into the hands of that eminent tribunal.” ^[11]

Checking Forces At The State Level Were The Exception, Not The General Rule

It should be noted, that even though the judiciary’s public image was damaged from the political checking responses at the state level to the foregoing cases, and those checking responses affected the Court’s future behavior, our federal government never disintegrated in the process.  The closest thing to it was the Civil War, but it would not be fair to blame that upon the Dred Scott case and the various state responses to it in the North since the pressures for secession had been building for several decades and not just over the slavery issue.  Kraus explains:

“Hundreds of thousands of Southerners had reached the conviction that the United States had become two distinct nations….One Virginia newspaper urged the establishment of a separate nation should the Republican candidate win election, arguing that it would promote Southern manufactures and commerce, local educational institutions, a new set of fashions, a new dialect, and a vigorous literature.  In short, the whole life of the South, allegedly then under Northern domination, would be greatly stimulated by the creation of an independent nation.  A struggle for economic and cultural independence preceded the test in the grimmer field of military conflict.

“As Southerners looked at the national, and even world, economy they firmly believed that their region held the key to the prosperity of the Atlantic peoples.  The real foundation of American wealth, they said, lay in Southern agriculture.  The North, like a parasite, depended for its existence on the very institution of slavery she so violently indicted.  Merchants, mechanics, farmers, lawyers, and doctors in the North all directly or indirectly ‘derive profit from that source,’ a Southern paper asserted.  Imposing cities – Boston, New York, and Philadelphia – all depended on economic ties with the South.  Were they to lose these benefits ‘their huge proportions would fall to decay, and scenes of wretchedness more absolute than words could depict mark their ruin.’  As for Great Britain (which depended for 70 percent of its vast cotton imports on the South), were she to be deprived ‘of the fruits of her commerce in our great staples,’ gloated the same writer, ‘she would be almost stricken from the list of independent states; without them she could not clothe and give employment to her thronging masses, nor long stagger under the oppressive weight of her accumulating debt.'” ^[12]

In short, the South entertained an inflated image of its own importance to the country and even the world and felt like the North took unfair advantage of it.  This powerfully pushed them towards secession in addition to the constant political irritations over the slavery issue.  But as discussed above, threats of secession went back at least to1820 regarding the Missouri Compromise.  So even though the political response in the North to the Dred Scott case contributed to the secession movement in the South, it was only one small part of a greater motivational whole — it was only one straw of many that eventually broke the camel’s back.

It should be noted that even though there were several cases where the states resisted the enforcement of various Supreme Court rulings, those who exercised those political checking forces did not get into the habit of thwarting the judiciary in an indiscriminate manner.  We always eventually returned to the general political status quo where court orders were honored, respected, and executed by the coordinate branches of government.  So if similar checking forces were ever brought to bear today and people expressed fears about the potential destruction of our form of government as a result, our American history would not support such fears since it never happened before when they were used.  And, as discussed above, such conduct cannot be blamed for the Civil War.

All of the checking forces discussed in this and prior articles could be looked at as an application of what Madison told us in Federalist No. 51.  He said that if men were angels there would be no need to set up structural inhibitions to the abuse of some towards others, but since our motives lack angelic stature, the next best thing is to set ambition against ambition and set natural rivalries in opposition to one another in order to keep them in check. ^[13]

The Supreme Court case of  Lawrence v. Texas ^[14]   which held Texas’ anti-sodomy law to be unconstitutional, could very easily have produced an outcome similar to the Worcester case, but it didn’t.  Imagine what would have happened had (1) the state of Texas refused to comply with the U. S. Supreme Court’s overturning of its criminal convictions, and (2) President Bush (the former Governor of Texas) refused to enforce that court order.  As in Worcester, the Court would have been powerless to do anything about it.  But neither Texas nor the President tried to do anything to resist the Court on that occasion.

Today it would be more difficult politically for states to take such a position because of the prospect of being cut off from federal funding.  Back at the time of the foregoing cases, the federal government was relatively small and did not have its hands in everything as it does today.  The states were not kept in financial leading strings like puppets as they are today with all of the federal “strings money”on which they have become so dependent.  So the states back then could afford to have backbone but today, the federal government gives so much financial support to the states (e.g. education subsidies, welfare subsidies, agricultural subsidies, federal highway funds, water projects, etc.) that it virtually controls what the states do politically.  Absent encouragement and support from Congress, states could ill-afford to stand up to the federal courts as they have in the past.

The Alien And Sedition Acts And The Resulting Virginia And Kentucky Resolutions

In order to understand the potential checking force of state resolutions, please indulge a bit more historical review because it is both interesting and insightful in understanding the Virginia and Kentucky Resolutions.  Michael Kraus tells us:

“The chief task of John Adams was to carry on the foreign policy in accord with the principles laid down in Washington’s administration.  At that time pressure from both England and France jeopardized the peace of the United States.  Now, however, the danger to American neutrality came largely from France.  She regarded the Jay Treaty [with England] as a hostile move against herself, and as a violation of the old Franco-American treaty of alliance.  The French professed to believe that American trade was favoring England, and in retaliation they seized and confiscated vessels and cargo belonging to citizens of the United States.  The American envoy Charles C. Pinckney…was harshly treated by the French.  Resentment against the insulting treatment of an American minister added to Federalist belligerency, already mounting dangerously.

“By 1797 diplomatic relations between France and the United States had been suspended.  The extremism of the French Revolution, whose leaders were alleged to be conspiring against the safety of other countries, roused the fears of conservatives.  War fever was rising in America and France; the Americans increased their naval armament and adopted other measures of defense.” ^[15]

A special commission was sent to France to try to resolve things only to be told by Talleyrand, the French Minister of Foreign Affairs, that for a “gift” of a quarter million dollars, the French could be induced to become friendlier.  That request for a bribe was widely publicized in America and rebuked with the phrase “Millions for defense; not one cent for tribute.” ^[16]

Kraus continues:

“Friends of France, and that meant Jeffersonian Republicans, quailed before the storm.  A wave of patriotic sentiment flooded the land; Adams was showered with loyal addresses….

“The French Revolution, in its later phases, strengthened conservatism in the United States as well as other countries….

“[Critics of the United States government] had recently come as political refugees from France or from Ireland, and they naturally gravitated to Jefferson’s party.  They thus became a shining target for fearful Federalists who now used their control of government to impale the opposition.  Federalists wrapped themselves in the mantle of Americanism; they stigmatized Republicans as foreign anarchists.  In 1798 Congress adopted a series of measures known as the Alien and Sedition laws.  The first of these extended from five to fourteen years the period of required residence before an alien could attain citizenship.  Other acts empowered the President to send out of the country aliens judged dangerous to the nation; jail terms were prescribed for those refusing to go and for those coming back.  A final measure made it a crime to write or publish ‘any false, scandalous, and malicious’ statements about the president or Congress, to bring them ‘into contempt or disrepute’ or to ‘stir up sedition within the United States.’  The laws were passed despite Hamilton’s advice to fellow Federalists that they were too extreme.” ^[17]

*           *           *

“The Republicans rallied their strength against the Federalist reign of terror.  Matthew Lyon, a Vermont Republican and Congressman, was jailed and fined $1,000 under the Sedition Law.  His fine was paid by a group of leading Republicans, including Jefferson, Madison, and Gallatin.  His aroused constituents re-elected him to Congress, and Lyon’s return trip to Philadelphia became a triumphant procession.  Uncowed, people throughout the country defied the Sedition Law, while Jefferson and Madison framed arguments against the new legislation on constitutional grounds.

“Jefferson drafted the Kentucky resolution, which his friend George Nicholas, introduced in the legislature of that state; Madison drafted the Virginia resolutions, which were adopted a month later.” ^[18]  

The Virginia Resolution said in part:

“Resolved, That the General Assembly of Virginia, doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic … That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of 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.” ^[19]

Several years earlier Jefferson had said:

“[The purpose of a written constitution is] to bind up the several branches of government by certain laws, which when they transgress, their acts shall become nullities; to render unnecessary an appeal to the people, or in other words a rebellion, on every infraction of their rights, on the peril that their acquiescence shall be construed into an intention to surrender those rights.” ^[20]

In other words, one of the purposes of a written constitution is to minimize the need of the people to revolt in order to protect their rights and avoid the false inference that they acquiesce to any usurpation by their inaction.  But success along these lines will only occur if there is a means of checking usurpation short of an appeal to arms.  In our system, our first line of defense against usurpation is the federal judiciary, to whom we give life tenure to protect them in making such difficult calls from potential retribution from the coordinate branches of government.  But what if the federal judiciary is in cahoots with the other federal branches in extending federal authority beyond its delegated bounds?  Then, Jefferson says the states have the right to hold the federal government in check.  The Kentucky Resolution passed December 3, 1799, said in part:

“That the principle and construction contended for… that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy….” ^[21]

Kraus adds:

“Both [the Virginia and Kentucky Resolutions] set forth the theory that the Constitution was a compact among the States; both declared the Alien and Sedition Acts unconstitutional.  But the Virginia resolutions simply announced that when the national government used unconstitutional measures, the States were in duty bound to interpose – just how, was not stated.  The Kentucky resolutions went further.  They asserted that whenever the general government exceeded its powers and took unconstitutional steps, then its acts were ‘unauthoritative, void, and are of no force.’  They also declared that Kentucky would never submit to undelegated and hence unlimited powers; and called upon the ‘Co-States’ to act concurrently on the question whether the Alien and Sedition Acts were allowable under the Federal Compact.

“Little real doubt exists that Jefferson intended his Kentucky resolution to assert the doctrine of nullification; he believed a state had the right to pronounce an act of Congress null and void, and prevent its execution….The whole issue, however, now went into the election of 1800.” ^[22]

“[New York was a pivotal state and a member of the politically powerful Livingston family said of the Alien and Sedition Acts:] they ‘would have disgraced the age of Gothic barbarism.’  One arrest under these laws, that of Jedediah Peck, who was taken two hundred miles from Cooperstown to New York for trial, created widespread resentment.  It was said at the time that it did more than two hundred missionaries could have done for the Republican Party.

“The tide of public opinion, in legislatures, in market places, and in the press, rose relentlessly against the Federalists.  Jefferson had done much to form that opinion, through correspondence and conversation.  He marshaled his political forces with the instinct of genius.” ^[23]

The Supreme Court never ruled on the constitutionality of the Sedition Act although a lower 3-judge court said it was constitutional. ^[24]   Jefferson’s party repealed the Alien and Sedition Acts once the Republicans won the election of 1800 which allowed them to take control of both houses of Congress and the presidency with Jefferson at the helm. ^[25]   Because of those repeals, there was no need to continue to encourage other states to follow the lead of Virginia and Kentucky in passing similar resolutions, but those resolutions were an interesting example of the states trying to rally each other in defending against federal usurpation as was encouraged in Federalist No. 46 discussed above.

Conclusion

As this article indicates, states can seek to check federal usurpation by passing joint resolutions expressing their discontent in hopes of getting the attention of federal officials outside the judiciary to publicly support the states’ positions and apply political pressure on the Supreme Court to change its policies voluntarily.  Ultimately the states could simply ignore federal court orders they felt were unconstitutional, but would face grave financial risks if they didn’t have the support of the President and Congress.  The next, and last article, will discuss the most radical political checking force imaginable – revolution.