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NOTE The Principles of '98

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Okay, so today I'm more or less confining our discussion to just one year, really,

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but an important year, the year 1798, and so I assume you've glanced at it,

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you're sort of familiar with the basic outline of events.

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I'm going to try to embellish that a bit and elaborate on what you've read.

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We start in this, looking at 1798, with just an observation that

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The events that transpire here and the ideas that are put forth were not confined to the year 1798, but reverberated over the next several decades.

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And the ideas that became known as the principles of 98, of course 1798, influenced American history all the way up through the Civil War.

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So this is not just a flukey incident that we're spending time on.

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I spend time on it because it's important and it recurs in American history.

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These ideas keep coming up, but at the same time they're ideas that most textbooks disregard altogether.

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So, what is so big about 1798? What's exactly going on?

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Well, basically we've got two things. We've got the Alien and Sedition Acts

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and then we have the Virginia and Kentucky Resolutions in response to them.

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The Alien and Sedition Acts were a series of acts passed by the Congress, signed by President John Adams,

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whose purpose was to make it easier for the United States government to carry on what was known as the Quasi-War with France.

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The Quasi-War with France refers to a period of the relationship between the United States and France

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A series of events that was very cold, to say the least, in the late 1790s and that involved a series of occasional on-again-off-again naval clashes between the two countries.

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Relations between the two countries had deteriorated really ever since the American state colonies and then states had reached a separate peace with Britain and had grown more and more friendly to the British over time.

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The French had grown more alienated. There are a variety of reasons for the hostility.

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For our purposes the point is that there was hostility between the United States and France such that I typically point out that President John Adams was often seen in public with a sword at his side as if to indicate to people that the country was on some kind of a war footing.

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Well, the Alien and Sedition Acts were intended, among other things, to criminalize speech

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that was derogatory about the U.S. government, to criminalize speech that might cast this

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war effort in negative terms or that might simply cast the United States government in

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a negative light, that might bring it into disrepute among the population.

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So the Alien Act involved immigrants and people who were not US citizens and empowered the

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President among other things to deport enemy aliens when the United States was at war with

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some country, if there were any citizens of that country in the United States they could

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be deported, and so on and so forth.

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But what we really want to look at is the sedition legislation because the Sedition

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Act made clear that it was a crime to speak ill of the United States government in a way

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in a way that, as I say, would bring the government into disrepute and it seems that that's obviously a violation of the First Amendment protection of the freedom of speech.

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It wasn't obvious at the time. There was a consensus of opinion in 1798 that the First Amendment did not cover seditious speech,

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that if you were saying something that will tend in a very serious way to bring the government to disrepute, this is not covered by the First Amendment.

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The understanding that a lot of people had in the 1790s was that the First Amendment simply said

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that there is no prior restraint on anything you might say.

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In other words, there's no censorship board that's going to prevent you from publishing something.

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That's what free speech meant.

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However, once you've said it, once it's been published, you could then be punished for it

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and that would be consistent with the First Amendment according to some interpretations.

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So it was not an obvious home run to say that these restrictions on free speech violate the First Amendment.

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It was not obvious to at least some people.

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Thomas Jefferson thought it violated the First Amendment, but, as I say, this is not the

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general consensus. If anything, the Sedition Act in the United States was more liberal

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than similar legislation elsewhere, like, for instance, in Britain, because in the United

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States you could, if you were accused of violating the Sedition Act, plead that, well, in fact,

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all the statements I made were true. Yes, I spoke ill of the U.S. government, but every

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Every single statement I made was true and you could be exonerated on the grounds that

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you had spoken the truth. That was not the case in Britain. If anything, if you tried

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to make that argument that, well, I only spoke the truth, that would actually make it worse

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because you're more likely to cause civil unrest if you speak about negative things

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that are true. But in the American case, you could plead that, in fact, you had told the

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and Truth was a legitimate defense.

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Nevertheless, there is something fishy about this sedition act on a couple of grounds.

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The constitutional question we'll leave aside for a moment.

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But there is the question that it might be used for partisan purposes.

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There were two political parties that were beginning to form in the 1790s.

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You have the Federalists, of whom the best known representatives would be George Washington and Alexander Hamilton.

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and the Republicans, not the Republicans of today, who were represented best by Thomas Jefferson and James Madison, perhaps.

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And it so happened that the Federalist Party dominated the U.S. government at the time.

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George Washington, for two terms, had been a Federalist. John Adams, the current President, was a Federalist.

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The Federalists dominated the U.S. government. Thomas Jefferson, though, was the Vice President and he was a Republican.

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And so we should pause for a moment to look at that unusual situation.

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How could it be the president and vice president belong to two parties?

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And the answer is that the initial rule was that whoever gets the greatest number of votes

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is elected president and whoever comes in second is elected vice president.

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So you get an interesting situation there sometimes.

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You get people who are at odds with each other in the White House together.

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And it seemed to Jefferson, the Republican, that this legislation was actually designed

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to shut down debate, to criminalize the Republican Party, and in effect to aggrandize the Federalist

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Party. That is to say, if a Republican newspaper should be excessively critical of the US government,

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it could be shut down. And so Jefferson thought that actually what was really beneath this

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wasn't really any desire to wage war with France more effectively. Really what it was,

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was an attempt to shut down the Republican Party, criminalize the Republican Party.

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So he thought it was a partisan measure, and that even if it didn't originate as a partisan measure,

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it would be enforced in a partisan manner.

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And this was not, this fear was not altogether unfounded.

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At least numerous Republican newspaper editors were jailed or fined

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over the course of the existence of the Sedition Act, which expired in 1801.

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It was set to expire, by the way, on the very last day of John Adams' administration.

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So it sort of, again, seems a little suspicious.

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I mean, what if a Republican had been elected?

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You know, well, the act will have expired and so the Republicans won't be able to get their revenge with it.

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It's also worth noting that if you actually read the Sedition Act, you find that it makes an exception for Thomas Jefferson.

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It says that you can't criticize the U.S. President, you can't criticize the Congress, and on and on and on.

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But it doesn't say anything about the Vice President.

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You can say anything you want to about him and that's fine.

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Well, Jefferson happens to be the one, you know, he's the Republican.

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So again, it seems suspicious here. It seems that this is really designed to punish the Republicans.

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So Jefferson is in this awkward situation because he is after all the Vice President

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and yet at the same time he wants to encourage Americans to disobey federal law.

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Law. So as I say, this is an awkward situation for him to be in. So the course of action

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he's going to take, he's going to take anonymously. He's going to draft a series of resolutions

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that are presented to the legislature of Kentucky, and they're known as the Kentucky Resolutions

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of 1798. And then James Madison, who was serving in the, after the Constitution, he later served

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in the Congress and was in close correspondence with Jefferson. James Madison drafted a series

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Resolutions, called the Virginia Resolutions of 1798, and those resolutions which dealt

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with the constitutional situation they faced, namely this clearly unconstitutional Sedition

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Act, at least in their view it was clearly unconstitutional, these measures were proposed

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to the various states, Kentucky and Virginia, that's why they're known as the Virginia

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and Kentucky Resolutions.

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It was not uncommon beginning in the colonial period and carrying on to the early republic

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that if you had some kind of a gripe with the U.S. government or in the colonial period if you had a gripe with the British government you would draw up some resolution and have the colonial or later state legislature vote on it and that way you would in effect be giving the voice of the whole colony or state saying this is how we feel about such and such a thing so in 1765 when the British passed the Stamp Act well they had the Stamp Act Congress that

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in effect drew up official remonstrances.

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You have other examples of this. You have the Virginia Resolves also

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at the time of the Stamp Act.

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Well, this is exactly what's going on here.

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These two states are going to protest what they see the federal government doing.

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They think the federal government is going way beyond what it's allowed to do,

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and they protest with these official resolutions.

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As I say, the Kentucky one's anonymously drafted by Jefferson.

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And we want to look at what exactly are these documents saying,

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These are documents that are the best kept secret of American history.

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It's not that textbooks don't mention them, but they mention them briefly and in passing

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and almost always distort their message.

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And then it's as if these principles just came and went.

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These documents and the things they said just came and went,

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and they had no long-term consequences.

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That's the effect of most textbooks' treatment of this subject.

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I want to suggest the opposite, that these are very important ideas.

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Well, there's a sort of two-fold aspect to these resolutions.

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First, the resolutions are going to be critical of the Alien and Sedition Acts

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and explain why they believe them to be unconstitutional.

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But then the second aspect of them involves what recourse do the states have?

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So let's do first things first.

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What's wrong, in particular with the Sedition Act, which is where most of the attention is directed?

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Well, there are two main arguments that are made against the Sedition Acts.

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Number one is the argument about the freedom of speech.

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There were some people who did believe that this violated the First Amendment's protection of the freedom of speech.

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So that argument is cited.

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But in case you need more evidence that there's something wrong with the Sedition Act, there's another argument that's used.

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And that argument comes from not the First Amendment, but the Tenth Amendment.

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The Tenth Amendment to the Constitution was referred to by Jefferson as the cornerstone,

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the foundation stone of the whole document.

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That Tenth Amendment had said that any power that the states have not delegated to the

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Federal Government is reserved to the states and to the people.

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So in other words, unless some power is spelled out in the Constitution, the assumption is

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the Federal Government does not have it.

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It has only those powers that are expressly delegated to it.

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Now, that's in effect the message of the 10th Amendment.

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Well, how does Jefferson use that?

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Well, Jefferson says, if the Federal Government has only the powers that the states have given to it,

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the Sedition Act is unconstitutional on that ground as well.

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Because when did the states give the Federal Government the power to suppress speech?

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Is it listed anywhere in the Constitution among the Federal Government's powers

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that it has the power to suppress free speech?

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which no, so it violates the 10th Amendment as well.

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So this is the basic constitutional argument, but now we get to the, really the more important

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issue, because the more important issue here goes well beyond any one passing series of

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legislative acts, it's the principles that are at stake here.

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And so I want to lay out what Thomas Jefferson's principles are.

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Basically we might list four, I don't know if there are four of them, he didn't number

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them, I'm just trying to think of his whole, his whole way of thinking and see if I can

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Let's see if I can confine it to four.

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And these would be basically what we might call the principles of 98.

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The first of these would be that the United States government and the Constitution that established it,

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both of these things were established by representatives of the states.

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The states gathered in 1787 and drew up the Constitution,

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the Constitution and then those states, one by one, those states ratified the Constitution.

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So the states created the Federal Government. They were there first.

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Secondly, the states gave to the Federal Government limited powers.

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The states delegated certain powers to the Federal Government.

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Those powers are listed in Article 1, Section 8.

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And they reserved the remainder of the powers to themselves.

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In Federalist No. 45, for example, James Madison said that the powers granted to the Federal Government by the states are few and defined.

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Those were his words. Whereas the powers that remained with the states were numerous and indefinite.

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Okay, I believe that's two principles.

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The third would be that if the Federal Government should then exercise a power that has not been delegated to it,

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if it should in other words violate the 10th Amendment, then the states need to be able to have some defense mechanism.

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They need to be able to defend themselves against this exercise of authority,

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this illegitimate exercise of authority by the Federal Government.

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And then finally my number four would be that the way the states should do this

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is by using a mechanism called nullification or interposition.

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And obviously it's this fourth principle that we need to elaborate on.

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The other ones are straightforward enough.

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The states create this federal government, they endow it with certain, relatively few, enumerated rights, or powers rather,

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and they reserve the remainder of the powers to themselves,

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and that if the federal government should go beyond its legitimate powers given to it by the states,

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the states have to have a defense mechanism, and that defense mechanism is nullification or interposition.

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Before defining these terms, I want to entertain other possible ways the states might have resisted

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Unconstitutional Exercises of Federal Power

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And consider why Jefferson rejects these and opts instead for the nullification option.

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One possibility would be that the states could just secede from the Union

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if the Federal Government is going beyond its powers. They could secede from the Union.

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Jefferson believes this is too extreme of a measure,

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Although, and this drives certain people crazy, so I'm going to say it on recording,

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Jefferson did believe that the states had the power to secede because he said this on several occasions.

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In fact, in 1798, he had acquaintances, for example, his friend John Taylor,

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actually took the position that Virginia should secede over the Alien and Sedition Acts.

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And Jefferson replied that the time for secession has not yet come, has not yet come.

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So he's not ruling it out altogether, but he's saying that it's an extreme measure to deal with just one problem.

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If the Federal Government has gone beyond its legitimate powers one time, surely it's an extreme measure to secede from the Union altogether

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and forfeit the benefits that he believed accrued to the states from being in the Union.

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Plus the states haven't done anything wrong, why should they be the ones who have to leave?

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And then, once the protesting states have left, there'll be nobody left to protest this hideous act of tyranny.

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So, secession was too rash a measure, according to Jefferson, but not one that could be ruled out altogether.

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Another possibility would be the other end of the scale, which would be not to resist at all, just more or less to accept this.

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But this is no solution either, because then you're just encouraging them.

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If they get away with one unjustified exercise of power, then how many more are they going to attempt?

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So that's no approach either.

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You could petition the Congress for a redress of your grievance, but that may not work.

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I mean, you're petitioning the very Congress that imposed the thing on you.

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That's not liable to work.

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You could wait and vote for another person to be president, or you could vote for new congressmen.

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But for one thing, the election could be years away, and meanwhile the federal government is doing all kinds of damage with its unconstitutional exercise of power.

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There's also the fact that sometimes you vote for people and they're not that good.

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The people who win are kind of bad, and they do bad things. So elections don't necessarily solve your problem.

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And then finally, the obvious solution that is probably at the forefront of our minds here is why don't you consult the Supreme Court?

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Let the Supreme Court get into the discussion and have the Supreme Court rule on the Alienist

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Addition Acts.

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But the difficulty here is twofold.

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The first is that the Supreme Court is full of Federalists, of course.

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They've all been appointed by Federalist presidents.

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So if you were to ask them how they feel about it, they're going to uphold it, almost certainly.

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So that's not going to win.

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And the second difficulty from Jefferson's point of view is Jefferson had a view of the

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The Supreme Court will sound surprising to modern ears, but Jefferson was very uncomfortable with the idea that the Supreme Court should have a monopoly on interpreting the Constitution.

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Because then, we all know what happens with monopolies. They lead to corruption and abuse of power.

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Well, that's no less true for the Supreme Court than for any other entity in society.

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So if they have a monopoly on interpreting the Constitution, what you're really saying is that this small number, handful of people, in effect, is running the country.

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If they get to interpret the Constitution and no one can dissent from their interpretation, what if they interpret it badly? What do we do then?

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That's too much power to grant them.

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Jefferson envisioned the Supreme Court's role as being primarily an advisory body, simply using its accumulated store of legal knowledge to render impartial judgments about particular acts.

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But they could not, in Jefferson's view, simply say, this is the interpretation of the Constitution, everybody has to accept it.

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Jefferson believed that all three branches of the Federal Government, not just the judicial, but also the legislative and the executive, all three branches, had the power to interpret the Constitution.

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So even if, let's suppose, that the Supreme Court says Act X, Y or Z is perfectly constitutional, there's nothing wrong with it, according to Jefferson, the President nevertheless has every right to say, well I'm vetoing it anyway because I believe it's unconstitutional.

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Okay, all three branches have to be able to interpret the Constitution.

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So he wouldn't just resort to the Supreme Court either.

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So the only real recourse that's remaining here is this idea of nullification or interposition.

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So what that idea basically boils down to is this very simple sentence,

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which is that if the U.S. government exceeds its powers under the Constitution,

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Then a state has the right to nullify, that is to declare null and void within that state any act that goes beyond the federal government's constitutional powers.

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So the federal government passes an unconstitutional law, nullification says a state can declare that law to be unconstitutional and for that reason refuse to enforce it.

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That's the principle in a nutshell.

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Sometimes James Madison used the term interposition, in effect suggesting that on the one hand you've got the Federal Government, on the other hand you've got individuals.

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But in between the two you have the state governments. And the state governments, in a case like this, should interpose between the Federal Government and their people to protect them from this usurped power.

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That's the idea of interposition, almost as if there's a bulldozer who's going to knock down your house.

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Lying down in front of the bulldozer would be like interposition.

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That's probably not going to work, but that's what the idea is all about.

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So that's nullification and interposition.

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Now that sounds extremely radical and hopelessly unworkable, right?

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Because it sounds like what's likely to happen is that the states are just going to nullify all the government's laws,

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and then nothing would ever get done.

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Well, you know, some of us would be inclined to say, well, so what?

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You know, I mean, half these laws are crummy anyway, but, you know, it's a serious objection and it deserves to be entertained.

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But, you know, one of the answers that was offered by other people who supported nullification into the 19th century was,

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okay, so what of it? I mean, suppose that nullification does create some inconveniences.

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Suppose we have some state that nullifies a federal law.

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What's the big problem? What's the big problem? Well, that is an inconvenience.

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We've got a state that's not following a federal law, granted.

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But what's the alternative to this?

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What's the alternative?

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Is the alternative that we don't have nullification and the federal government does something that's unconstitutional, we do nothing?

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What's the alternative?

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Because if we do nothing, that's also going to lead to inconveniences.

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It's going to encourage the federal government to continue to grab more and more powers for itself.

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So, the argument really is that no matter what you do, you're going to have some inconvenience.

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With nullification you'll have some inconvenience and without it you'll have some inconvenience.

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It is a serious inconvenience to have a federal government that thinks it can interpret the Constitution however it wants.

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But the point is, which is the less dangerous inconvenience?

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And surely it seems to be nullification. That would be the argument.

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Jefferson's view pretty much boils down to this.

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The reason he favors this position is that he understands what happens, again, in the case of monopolies.

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Suppose you have a situation in which the federal government has a monopoly on interpreting the Constitution.

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And the states don't get to say anything about what the Constitution means.

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Only the federal government gets to interpret it.

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Well, we all know human nature.

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And if the U.S. government has that monopoly, it's going to interpret the Constitution in its own favor.

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And so, over time, more and more powers are going to accrue to the central government

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and the states will find themselves more and more eclipsed.

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This was Jefferson's position, that you don't have two parties to a contract

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where only one party is allowed to interpret the terms,

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because that party will abuse the other party.

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The example I used to give in my classroom years involved mowing my lawn.

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Now, I used to live in an apartment, so we had maintenance do that, so it's not a good example.

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example, but now I don't own a lawn mower, I've mowed enough lawns in my life, right

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now I don't want to mow the lawn, it's too hot, I just don't want to do it, I want the

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neighborhood kid to mow my lawn.

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So if I enter into a contract with him and I say for, I don't know what the going rate

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around here is, 20 bucks, I don't know, whatever, let's say it's 20 bucks, 20 bucks I want

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you to mow my lawn, and that's the contract, but only I can interpret it, the poor kid

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mows my lawn then comes up waiting for the 20 bucks and I say, well, see my interpretation

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is when you're lying there on your deathbed, I'll give you the 20 bucks, that's the way

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I interpreted the contract. He might think that was really not fair, that I'm abusing

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my power as the monopolistic interpreter of the contract. Or conversely, if only he can

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interpret it, then the same thing happens. You're going to mow my lawn for $20, then

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I pay him the 20 and I wait and I wait and I wait and I wait. He never mows it. He says,

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well, the way I interpreted the contract is that in 50 years I mow your lawn, but I get

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Well, no one would enter into a contract like that, that only one side could interpret.

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And the same goes for the federal government and the states.

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The states also have to be able to interpret what the Constitution means.

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After all, they drafted the Constitution.

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They drafted the Constitution and created the federal government.

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How could that federal government that they themselves created

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then turn around and tell them what their own Constitution means?

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It's like the Frankenstein monster dictating to Dr. Frankenstein.

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So we have to allow the states to use nullification. That's their way of making their own interpretation of the Constitution count.

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Okay, that's a sort of overview of the Principles of 98. So Jefferson and Madison proposed these ideas in the Virginia and Kentucky Resolutions.

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Now later on, by the way, in later years, you may read about this, I don't know, but in later years, like in the 1830s, as Jefferson died in 1826,

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And then Madison died in the early 1830s, but as he was toward the end of his life,

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he began to really repudiate anything from his earlier life that had seemed like it was sort of radical and in favor of the states.

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And Madison began going around telling people, well, I didn't really mean, when I said interposition,

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I didn't really mean the states could resist the federal government.

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He was always telling everybody what he really meant.

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Well, what's really happening is that as Madison was about to leave this life,

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you know, he favored a stronger central government and so he didn't want to,

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you know, he wanted to reinterpret what he had done, but the fact is that at the time he clearly did say

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the states should have the power to interpose, to interpose to arrest the progress of the evil,

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the evil being the exercise of unconstitutional power.

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He did say that at the time, and a lot of people kind of laughed at his sort of lame

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attempts in the 1830s to say, well, I didn't really mean that, I really meant this.

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Political cartoons at the time laughed at how many Madisons are there, the guy can't

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keep his ideas straight, but in 1798 he certainly did believe these ideas.

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Okay, so these resolutions are passed by the two states.

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Well, as time goes on, by 1801, Jefferson is elected president in 1800, by 1801, the Alien Sedition Acts go out of existence, they expire, or the Sedition Act expires.

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Jefferson takes over, he pardons anybody who has been imprisoned under the terms of the Sedition Act, and then life goes on.

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But what became of the principles of 98? What happened with these principles?

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Well, in the short run, they did not get a very welcome reception in the rest of the country.

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Virginia and Kentucky were hoping that some of the other states might respond to their resolutions,

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and respond certainly favorably, they hoped, and give their own views on the matter.

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Well, most states ignored the Virginia and Kentucky resolutions, and when they did respond to them,

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it was to respond in the negative, to say that these are irresponsible ideas that are going to create chaos.

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Chaos. Well, we've all heard the expression that actions speak louder than words. It's

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true that the New England states in 1798 were all up in arms about the Virginia-Kentucky

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resolutions. But in 1807, when the federal government was oppressing them, what principles

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did New England start appealing to it? Well, the principles of 98. The principles that

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not 10 years earlier they had told everybody were dangerous, irresponsible, chaotic. They

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They themselves began to have recourse to them.

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For instance, in 1807, it's not fortuitous that I picked that date, 1807 was the date

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that Thomas Jefferson imposed an embargo in the United States, and it's not just an embargo

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where you can't take your ship and trade with some enemy.

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You can't trade with anybody according to the Jefferson Embargo.

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Jefferson imposed an embargo in 1807 that prohibited any American ship from leaving for any foreign port anywhere in the world.

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And the reason for that was that Britain and France were harassing American shipping,

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and Britain was impressing sometimes Americans into the service of the British Navy.

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And to protest these actions on the part of these countries, Jefferson in effect discontinued American trade with them

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on the grounds that perhaps, if they're deprived of American trade, they will realize the error of their ways.

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They'll stop harassing Americans in order to get the embargo lifted.

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But Jefferson didn't simply say, you can't trade with Britain or France.

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He said, you can't leave for any foreign port anywhere.

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Because he knew, I mean, he's presiding over a country of smugglers that smuggled all through the colonial period.

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And he knows that if he simply says, don't trade with Britain or France,

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The U.S. Navy in 1807 was granted the power to stop and search any ship within U.S. jurisdiction if its officers had reason to suspect that the ship was violating the embargo.

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was granted the power to stop and search any ship within U.S. jurisdiction

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if its officers had reason to suspect that the ship was violating the embargo.

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Customs officials were authorized to detain any vessel

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whenever in their opinion the intention is to violate or evade any provisions of the acts laying an embargo.

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So, if they have a suspicion that you might be intending to violate the embargo, they can seize your ship indefinitely.

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So this is very far short of the usual probable cause requirement that would typically govern

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the issuing of warrants for searches and so on.

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Well New England was particularly hard hit by this embargo because of course they rely

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on foreign commerce, they're involved in foreign commerce or in proximate fields and here is

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where the opposition to the embargo was concentrated.

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In fact here is where Jefferson gets the angriest letters of his whole presidency.

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Thomas is one of these guys who saves everything, never throws anything away.

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We have tons and tons of letters that ordinary people wrote to Thomas Jefferson.

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He would pretty much answer your letter as long as you weren't insulting him.

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The letters he starts getting from New England during this period are really, really bitter.

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You're the biggest jackass, pardon my language, but it's actually worse language than that.

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Whoever served as president, you should go hide yourself away and not show yourself in public.

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One letter even said, I have just paid four of my friends $300 to shoot you if you don't lift the embargo.

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I mean, it gets this letter in the mail. So there's real opposition to this.

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Well, interestingly, the Federal District Court ruled in 1808 that the embargo was perfectly constitutional.

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But what did the Massachusetts legislature say?

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Both houses of the Massachusetts legislature declared the embargo acts to be, quote,

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in many particulars, unjust, oppressive and unconstitutional.

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And then we could hear the principles of 98 here.

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These are northern states now that were telling us, oh, these are terrible principles.

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While this state, namely Massachusetts, maintains its sovereignty and independence,

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all the citizens can find protection against outrage and injustice in the strong arm of the state government.

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and the embargo they went on to say was not legally binding on the citizens of this state.

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A New York congressman explicitly mentioned the principles of the Virginia and Kentucky resolutions

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and then said, why should not Massachusetts take the same stand that Virginia and Kentucky took

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when she thinks herself about to be destroyed?

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A Connecticut congressman said, if any state legislature had believed the act to be unconstitutional

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The state legislatures, this Connecticut congressman continued, whose members are sworn to support the Constitution, may refuse assistance, aid or cooperation, if they believed a Federal Act was unconstitutional.

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The Connecticut governor, Jonathan Trumbull, shared these views.

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He said,

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Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers,

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on the state legislatures in great emergencies devolves the arduous task.

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It is their right, it becomes their duty, to interpose their protecting shield between the right and liberty of the people

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and the assumed power of the general government.

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The General Assembly of Connecticut passed a resolution that directed all executive officials in the state not to afford, quote,

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any official aid or cooperation in the execution of the Act aforesaid.

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The General Assembly furthermore declared, resolved, that to preserve the Union and support the Constitution of the United States,

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it becomes the duty of the legislatures of the states in such a crisis of affairs,

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vigilantly to watch over and vigorously to maintain the powers not delegated to the United States

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and that a due regard to this duty will not permit this assembly to assist or concur in giving effect to the aforesaid unconstitutional act passed to enforce the embargo.

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When the embargo was at its end, Rhode Island declared that her legislature possessed the duty,

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to Interpose for the Purpose of Protecting the People of Rhode Island from the Ruinous Inflictions of Usurped and Unconstitutional Power.

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Well, there is the unmistakable language of the Principles of 98.

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And this could go on, I could go on a great length, I'm not going to, we're going to stop here,

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but a great length giving other examples of the states referring to the Principles of 98

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as a means of protecting themselves against the exercise of unconstitutional power.

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Power and when we convene next time I'm going to show how the Principles of 98 were even

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referred to as a way of evading the Fugitive Slave Acts, which required that you had to

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return a runaway slave who had gone up north, you had to return him to his master. There

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were constitutional arguments made against that, even though it seems like the Constitution

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permits that. There were constitutional objections to the Fugitive Slave Act of 1850, and we're going to see that the Wisconsin Supreme Court, as I cite briefly in the chapter, when they explained and in effect justified Wisconsin's very, very slow, their slowness in effect to cooperate with this, their lack of cooperation, how did they justify it? They quoted verbatim from Jefferson's Kentucky resolutions that this is unconstitutional, so therefore we refuse to enforce

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So these principles of 98 have had quite an interesting but unfortunately totally unheralded career in American history.