By the early 1800s, the debate over Federal power which had been so tactfully postponed when it surfaced in previous efforts at unification (i.e., the Constitutional Convention) had again inevitably reared its head once the government was established and the neutral greatness of Washington's reign had ended. As the major issue of the day, the controversy of States' rights versus big government permeated politics in a profound depth and completeness: it was reflected in the core beliefs and platforms of the major political parties of the day, and most issues were at unobtrusive levels reflections of this central conflict. Prominent politicians of the day, such as John Marshall and Thomas Jefferson, were also outstanding thinkers with very strong opinions on this issue.
Several Acts of Congress proved the Legislature to be an effective battleground for the issue of federal power. In the end of the 18c, the Federalist Party enjoyed great political influence. Presidents and many congressmen represented the party's goals and served as opponents to those who sang too loudly the praises of "States' rights". Thus, Congress succeeded in passing legislature that seriously challenged individual rights. The Alien Act made assimilation and naturalization more difficult for immigrants, and the Sedition Act posed a substantial threat to First Amendment rights, as it specified punishment for "writing, printing, uttering, or publishing any false, scandalous, or malicious writings" about virtually any branch or aspect of the U.S. government. Such a clear subordination of individual rights to Federal power evoked a strong Republican backlash, in both State Assemblies and ballot boxes. The Kentucky Resolutions were passed in State legislature attacking the Sedition Act, stating that "whensoever the general government assumes undelegated powers, its acts are unauthorized, void, and of no force " (D) Two years later, Democratic-Republican Thomas Jefferson was elected President and Congressional elections followed similar trends, ending the long-time Federalist dominance.
A second issue touched upon by the Kentucky resolutions was that of judicial review. The Resolutions asserted that "the government created by this compact" (i.e., the Constitution) "was not made the exclusive or final judge of the extent of the powers delegated to itself " (D) This attacked the power of the Supreme Court to decide the constitutional validity of law and thus posed a threat to an important check on Legislative power. This document would not, however, dictate the future role of the Supreme Court; that precedent was instead set by Chief Justice John Marshall, in practice as well as in his 1803 Marbury v. Madison decision. While his decision struck a minimal blow to the so-called 'midnight appointments' made by the federalists after the outcome of the 1800 elections, it won a great victory for big government by establishing the authority of the Supreme Court to judge whether laws are constitutional. According to Marshall, "an act of the legislature repugnant to the Constitution is void" (D) and therefore may be determined as such in court. This of course was not readily accepted by Democratic-Republicans of the time, who felt that judicial review gave the Supreme Court a threatening amount of power over the law. Many agreed with Jefferson that the mass election of Democratic-Republicans in 1800 was indicative of the American people's rejection of Federalism, that Marshall therefore had no right to make these decisions, and that "the Constitution, by this hypothesis, is a mere thing of wax in the hands of the judiciary." (G)
When encumbents were not attempting to win gains for their cause in subtler ways, they were debating the issue outright. The potential ambiguity of the 8th Amendment made it a useful tool in argument. Anti-federalists insisted that the enumerated powers were only functional when "necessary and proper", and that the disputed Amendment's wording only served to point out this responsibility. (G) Federalists continued to assert the Federal Government's constitutional right to substantial power and responsibility, as well as its supremacy in enumerated powers. (F) Similar debates centered on the 10th Amendment: those in favor of States' rights saw it as an incontestable validation of their belief more individualistic government, while Federalists argued that very few powers were not "delegated to the United States by the Constitution", and with control over the Supreme Court it was theirs to interpret. (B)
Thus, the debate over and development of Federal power was by no means an isolated issue, but a central one which played a part in many controversies of the early 19c. It is possibly he oldest issue our nation has seen, beginning even before the drafting of the Constitution, causing our only civil war, and continuing up to the present. It will only die with the death of the Nation.
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