Fritz applied the "Page 99 Test" to his new book, Monitoring American Federalism: The History of State Legislative Resistance, and reported the following:
Page 99 asks the reader to consider the disturbing language used by Thomas Jefferson in his draft of the Eighth resolution of the Kentucky Resolutions of 1798 that expressed the state’s opposition to congressional passage of the dangerous and oppressive Alien and Sedition Acts of 1798 that attacked free speech and freedom of the press. The language of the Kentucky Resolutions—and James Madison’s Virginia Resolutions of 1798—became a touchstone for proponents of nullification in the 1830s who referred to the Resolutions as the “Principles of ‘98” even as nullifiers misused Jefferson’s and Madison’s words to justify nullification and secession.Learn more about Monitoring American Federalism at the Cambridge University Press website.
In Jefferson’s Eighth resolution he implied that individual states might be able to challenge by force laws passed by the federal government that the states deem to be unconstitutional, thus coming closest to the meaning of nullification that nullifiers would adopt. Page 99 shows that even as Jefferson used language that seemingly flirted with the idea of nullification, his draft resolutions were consistent with the position that acts of the national government that exceeded its constitutional authority rendered those acts “void” and of “no force.” Unconstitutional acts of the national government were inherently void and of no authority and not because Kentucky’s legislature had nullified them. Thus, despite Jefferson’s use of the word “nullification,” his terminology was consistent with the objectives of both the Virginia and Kentucky Resolutions to identify the unconstitutionality of the Alien and Sedition Acts and bring attention to that fact. In concluding that the acts were void as a consequence of their unconstitutionality, Jefferson employed the same logic that Chief Justice John Marshall used a few years later in Marbury v. Madison when Marshall proclaimed that “an act of the legislature, repugnant to the constitution, is void.”
The Larger Context of State Legislative Resistance
The book focuses on how state legislatures, as guardians of the people’s rights, have sought—throughout our history—to monitor the distribution of powers under the Constitution using the tool of “interposition.” Interposition was a formal state protest serving to “sound the alarm” against actions of the national government perceived to be unconstitutional, designed to focus public attention and generate interstate political pressure with the objective of reversing the overreach by the national government.
Interposition emerged because the Constitution created what James Madison called a “compound republic”—neither a wholly national government nor one in which states retained their entire sovereignty. This shared sovereignty inevitably tested the balance of powers between nation and states. Moreover, the absence of clear delineation between the two levels of government meant that a static equilibrium of powers would never be a fact and would always be a source of ongoing political debate and conflict.
Monitoring American Federalism shows that the most violent rhetoric and actions concerning the equilibrium of federalism occurred: during the decades before the Civil War as Southern states feared the destruction of slavery; following Reconstruction as white supremacists fought the Civil War Amendments to the Constitution and racial equality; and during the 1950s-60s in opposition to school integration. More recently, modern forms of “neo-nullification” and “uncooperative federalism” have emerged as red or blue states seek to oppose federal laws and policies. Many of these state actions are consistent with the history of sounding the alarm interposition.
Interposition offers the important insight that the national government cannot ride roughshod over the states. At the same time, interposition does not mean that states have the power to nullify or secede, but owe a duty to the Constitution and our democratic process.
The Page 99 Test: American Sovereigns.
--Marshal Zeringue
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