3.2.2 Coastal Upper South (1787-1831): The Revolt Against Federal Power Begins

The Virginia Resolutions (1798); Hunter v. Martin – Virginia, 1813 (18 Va. 1 ), reversed, 14 U.S. 304 (1816)

  • Conflicts between advocates of centralized and decentralized government have been a central feature of American political discourse throughout the nation’s history.  During the debates over ratification of the new U.S. Constitution (1788),  federalists argued that the new central government derived its power directly from the people; antifederalists viewed it as a creature of the states. 
  • Virginia shaped the next phase of the debate: whether the states had the right to actively resist improper exercises of federal power.  The federal Alien and Sedition Acts (1798), enacted in an effort to dampen American enthusiasm for the excesses of the French Revolution, provided stiff penalties for criticizing the government but triggered widespread opposition. 
  • Thomas Jefferson and James Madison led the opposition:  at Madison’s behest,the Virginia legislature adopted resolutions proclaiming that states, as co-equals of the federal government, had a duty to oppose and resist unjust federal laws.   Kentucky’s legislature passed similar resolutions written by Jefferson (see § ___).    For many states, including Maryland and Delaware, the Virginians’ theory of interposition was too much:  they issued formal disapprovals.  This was the beginning of a slow but steady cultural and legal divergence between the two portions of the coastal Upper South.          
  • Jeffersonians gained control of the federal government in 1800 and repealed the Acts, but another clash between Virginia and the federal government erupted a decade later.  The Martin case involved another dispute over British property rights:  the heir of Lord Fairfax, colonial owner of a large portion of northern Virginia, claimed that a federal treaty preserved his property rights notwithstanding a state confiscation law.  Virginia’s supreme sided with the state, holding that the federal treaty did not apply, but on appeal the U.S. Supreme court held that it did. 
  • The Virginia court refused to honor the ruling, reasoning that it had as much right to interpret the treaty as the high Court and that a 1789 federal law giving federal courts final say over interpretation of federal laws and treaties was unconstitutional.  U.S. chief justice John Marshall (himself a Virginian) and Virginia chief justice Spencer Roane then engaged in an newspaper debate over the proper spheres of state and federal government that received national attention.

“[T]his Assembly …. views the powers of the federal government as resulting from the compact [the U.S. Constitution] to which the states are parties …; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states, … have the right, and are in duty bond, to interpose, for arresting the progress of the evil.” Virginia Resolutions (1798)

“[W]e consider the resolutions from the state of Virginia as a very unjustifiable interference with the generally government and constituted authorities of the United States, and of dangerous tendency, and therefore not fit subject for the further consideration of the General Assembly.”Delaware’s response (1798)

Sedition Act (1798) - courtesy Wikimedia Commons

“[T]o give to the general government … a direct and controlling operation upon the state departments, as such, would be to change at once, the whole character of our system.  The independence of the state authorities would be extinguished, and a superiority, unknown to the constitution, would be created, which would, sooner or later terminate in an entire consolidation of the states into one complete national sovereignty.”  - Justice __ Cabell, in Hunter

“[The federal  Judiciary Act] was an after-thought, well calculated to aggrandize the general government, at the expence of those of the states; to work a consolidation of the confederacy; and can only be pretended to be justified by the broad principles of construction, which brought the alien and sedition laws into our code!  I would consign it to a common tomb with them, as members of the same family, and originating in the same era of our government.” – Justice Spencer Roane, in Hunter