Duty of Interposition–a Synopsis of Madison’s Report of 1799 on the Virginia Resolutions

A Precis:

1. The power of interposition arises in cases of a deliberate, palpable, and dangerous exercise of powers, not granted by the Constitution.

2. Where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves–the states– must be the rightful judges in the last resort, whether the Constitution has been violated.

3. For interposition to be proper, the breach of the constitutional compact must be willful and material.

4. The object of the interposition must be solely that of arresting the evil of the usurpation.

5. Federal judicial authority is not the sole or final authority on the question of usurpation; the states as parties to the compact are.

Synopsis:

Introduction

1st Resolution: Support for the Constitution and for federal measures warranted by it

2nd Resolution: Virginia’s duty to oppose constitutional infractions

3rd Resolution: States’ rights to interpose against unauthorized federal powers

3.1. Federal powers are derived from the Constitution which is a compact to which the states are parties

3.1.1. Powers not delegated belong to the states or to the people

3.1.1.1. The states are the parties to the constitutional compact; the Constitution was submitted to the states and the states ratified it

3.2. Federal powers are ‘limited by the plain sense and intention of the instrument constituting that compact,’ and ‘as no farther valid than they are authorized by the grants therein enumerated.’

3.3. Duty of interposition

3.3.1. When it arises: in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact

3.3.2. Where resort can be had to no tribunal, superior to the authority of the parties, the parties themselves must be the rightful judges in the last resort, whether the bargain made has been pursued or violated

3.3.3. For interposition to be proper, the breach of the compact must be willful and material

3.3.4. The meanings of ‘dangerous’, ‘palpable’, and ‘deliberate’ usurpations

3.3.5. The object of the interposition must be solely that of arresting the evil of the usurpation

3.3.6. Federal judicial authority is not the sole or final authority on the question of usurpation; the states as parties to the compact are

3.3.7. The federal judiciary’s decisions are the last resort only in relation to the departments of the federal government

3.3.8. The authority of constitutions over governments, and of the sovereignty of the people over constitutions, are truths which are at all times necessary to be kept in mind

4th Resolution: The Federal Government has enlarged its powers by forced construction of the Constitution

4.1. ‘A spirit has in sundry instances been manifested by the Federal Government to enlarge its powers by forced constructions of the constitutional charter’

4.1.1. The particular abuses of power: the Alien and Sedition Acts, the Bank Law, the Carriage Tax

4.1.2. Other federal usupations

4.2. There is a design to expand the Constitution’s phrases, ‘common defense’ and ‘general welfare’ so as to destroy the effect of the particular enumerations explaining and limiting their meaning

4.2.1 The design appears in Hamilton’s Report on Manufactures and in a Congressional committee report on the promotion of agriculture

4.2.2 There is not a single power whatever, which may not have some reference to the common defence, or the general welfare

4.2.3. The design has been to transform the government into one of unlimited power and extend its power to every object relating to the General Welfare.

4.2.4. The General Welfare and Common Defense provision is subjoined to and limited by a series of subsequent enumerations and is not itself a general power

4.3. The design has been aimed at consolidating the states into one sovereignty

4.3.1. Consolidation: The destruction of the Republican form of government and the substitution of monarchy

4.3.2. Expansion of legislative power results also in a greater latitude of executive prerogative

4.3.3. Expansion of legislative power results also in increased executive patronage

5th Resolution: Against the Alien and Sedition Acts

5.1. Alien Act

5.1.1. The Alien Act exercises a power nowhere delegated to the Federal Government.

5.1.1.1. The burden of proving the constitutionality of the Alien Act is on its proponents

5.1.1.2. The Alien Act improperly fails to distinguish between alien friends and alien enemies; and with respect to alien friends it is unconstitutional

5.1.1.3. The Alien Act has for its objective ‘preventative justice’, but it violates the principles of preventative justice by mandating probable cause for arrest, habeas corpus, and other protections afforded defendants.

5.1.1.4. How the principles of justice are violated by the Alien Act: the executive, not the judiciary, is given full power over the fate of accused

5.1.1.5. The deportation of alien friends is not punishment for any offense

5.1.1.6. But even if deportation were thought a punishment, it could not be constitutionally-inflicted on mere suspicion and on the single will of the executive

5.1.1.7. The admission of aliens into the United States is not a favour that can be revoked at will once the alien is admitted

5.1.1.8. Aliens are protected by the Constitution

5.1.1.9. Indiscriminate alien deportation is not justified by Congress’s power to define and punish offenses against the law of nations

5.1.1.10. Alien enemies may be punished for violations of the law of nations; alien friends only under municipal law

5.1.1.11. The argument that Congress may define and punish offenses against the law of nations shows that the intent of the Alien Act is penal; thus to invoke it, there must first have been some offense worthy of punishment

5.1.1.12. A listing of offenses for which aliens may be punished

5.1.1.13. Alien friends are not subject to the law of nations

5.1.1.14. Congress’s power to issue letters of marque and reprisal does not justify the alien act

5.1.1.15. Congress’s war power does not justify the removal of alien friends; only alien enemies

5.1.1.16. Congress’s power to protect states against invasions does not justify the removal of alien friends

5.1.1.17. The power to act on a case when it actually occurs does not include the power to take measures that may tend to prevent the case

5.1.1.18. The argument that states have no authority to deport even dangerous aliens (and thus must be undertaken by the Federal Government) is fallacious for it assumes that powers of states are granted by the Constitution

5.1.1.19. A Virginia law concerning the deportation of alien enemies does not have any bearing on the constitutionality of the Alien Act

5.1.2. The Alien Act unconstitutionally unites legislative, judicial, and executive powers in the president, is constitutionally-indefinite, and makes his will alone the ‘law’

5.1.2.1. The Alien Act’s union of all powers in the president violates the separation of powers doctrine

5.1.2.2. The Alien Act’s union of all powers in the president violates the accused alien’s right to a fair trial

5.1.3. The Alien Act subverts the organization and provisions of the Constitution

5.2. The Sedition Act—Objections summarized

5.2.1 The Act exercises a power not delegated by the Constitution

5.2.1.1. The Sedition Act is not justified by the common law: the common law is not part of the Constitution

5.2.1.1.1. The history of common law in the colonies before the Revolution

5.2.1.1.2. The American Revolution did not adopt the common law as the law of the Union.

5.2.1.1.3. The Articles of Confederation did not adopt the common law as the law of the Confederation

5.2.1.1.4. The common law was not adopted by the Constitution

5.2.1.1.5. The common law may be used to comprehend certain technical terms in the Constitution

5.2.1.1.6. The argument that common law was adopted by the provision, ‘The judicial power shall extend to all cases in law and equity, arising under this Constitution, the laws of the United States, and treaties made or which shall be made under their authority’, is false

5.2.1.1.7. The provision relied on for the proposition that the common law is constitutionally-adopted does not apply to criminal cases arising under the common law

5.2.1.1.8. In any case, the criminal sedition act would not be authorized by the provision, because the provision establishes only federal judicial power and not legislative or executive powers.

5.2.1.1.9. Moreover, there is no reference to common law in the part of the Constitution which describes the law of the United States

5.2.1.1.10. Furthermore, the Constitution’s alleged adoption of the common law would have created many uncertainties and insurmountable difficulties about which of the differing versions of common law was adopted

5.2.1.1.11. And further, if it were understood that the common law was adopted by the Constitution, it would follow that no part of that law could be altered by the legislature; and the Sedition Act itself would be void as violating the Constitution

5.2.1.1.12. And even if the common law were thought to be liable to revision, the consequence would be that Congress would be freed of the limitations of the Constitution and free to legislate in all cases whatever; and the president’s powers would also be expanded accordingly

5.2.1.1.13. And the adoption of the common law would bring with it an adoption of the undesirable prerogatives of the English Constitution

5.2.1.1.14. The adoption of the common law would confer on the federal judiciary a discretion little short of legislative power

5.2.1.1.15. Also the adoption of the common law into the Constitution would make it paramount to the laws of the states destroying their sovereignty.

5.2.1.1.16. Summary of the ill effects of common law adoption

5.2.2. The Sedition Act is not authorized by any parts of the Constitution

5.2.2.1. The Preamble does not authorize the Sedition Act

5.2.2.2. The Common Defense and General Welfare Clause does not authorize the Sedition Act

5.2.2.3. The Necessary and Proper Clause does not authorize the Sedition Act

5.2.2.4. The three-fold test of the constitutionality of the Sedition Act and others

5.2.2.5. There is no express power authorizing the Sedition Act; but assuming that the Sedition Act is authorized by the power to suppress insurrections, the Act would still fail to meet the ‘necessary and proper’ requirement

5.2.2.6. Congress has the power to enact laws to punish those who are parties to an insurrection

5.2.2.6. But the power to punish insurrectionists does not include a power to enact legislation to prevent insurrections by means of laws such as the Sedition Act

5.2.2.7. The ‘Necessary and Proper’ Clause does not give Congress the power to employ unlimited means in carrying out an enumerated power; the means must have an immediate and appropriate relation to the enumerated power involved

5.2.2.8. The Sedition Act is positively prohibited by the 1st Amendment

5.2.2.9. In answering whether the Sedition Act is constitutional, it will not do to examine the laws of England on sedition; the American system is founded on the principle that the people are the sovereign—not a king who ‘can do no wrong’ or on an omnipotent parliament; and here the legislature and the executive have only limited powers

5.2.3. The wisdom of a vibrant and free press

5.2.4. In America, the freedom of the press and of conscience and religion, are combined in the 1st Amendment; and if the amendment allows control of the press according to common law, it must also been seen to allow control of conscience and religion

5.2.5. Apart from the 1st Amendment’s positive prohibitions against the Sedition Act, Congress otherwise has no power over the press

5.2.6. The history underlying ratification of the original Constitution and the subsequent 1st Amendment and other portions of the Bill of Rights

5.2.7. Free communication among the people is the only effectual guardian of every other right; the Sedition Act undermines that security

5.2.8. The Sedition Act’s clause that allows truth as a defense and allows other ‘ameliorating’ effects do not shield it from its innate unconstitutionality

5.2.9. Why the ‘ameliorating’ provisions of the act don’t make it constitutional: it forces defendants into court with all those vexations; it makes opinion, inference, and conjecture the objects of prosecution; it diminishes open discussion on the merits of office-holders; and it reduces competition for elective office giving incumbents an unfair advantage.

6th Resolution: The Sedition Act Violates the Liberty of Conscience and Press

6.1 The preservation of liberty of press and of conscience were conditions of Virginia’s ratification of the Constitution: violations of those rights would constitute ‘criminal degeneracy’

6.2. No power over conscience or press was delegated to the federal government

6.3. As additional security, liberty of conscience and of press were secured by the 1st Amendment; and any argument which denies either would wrongly turn the amendment into a grant of power instead of a declaration of right

6.4. The extent of freedom of press and of free exercise of religion is not to be measured by common law

6.5. The argument that Congress can make laws on freedom of speech that regulate that freedom leads to the similar argument that Congress can make laws regulating freedom of religion provided the laws don’t prohibit the freedom of religion

7th and 8th Resolutions: Appeal to sister states

7-8.1. The Virginia Resolutions are proper in their own right; the meaning of the Constitution is not solely within the power of the federal judiciary

7-8.2. Though other means of opposition could have been employed, the Virginia Resolutions are nonetheless a necessary and proper means of declaring its opposition to the Alien and Sedition Acts

7-8.3. Virginia’s duty to sound the alarm at the first symptoms of usurpation

The full text of the Resolutions is found @ https://douglassbartley.wordpress.com/2011/09/04/madisons-report-of-1799-on-the-virginia-resolutions-with-synopsis/

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Published in: on February 28, 2012 at 8:18 am  Leave a Comment  

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