I recently finished two books on the Spirit of 1798:
1) Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy by William J. Watkins Jr.
2) Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas E. Woods Jr.
Both books go into the history of the Virginia and Kentucky Resolutions of 1798 written by James Madison and Thomas Jefferson, respectively. The purpose of the books is not only to bring light to these resolutions, but to also advocate for more state resistance to unconstitutional federal laws.
These resolutions were written in response to the passage of the Alien and Sedition Acts signed into law by President John Adams. Watkins gives some history before these laws to highlight the differences between Adams' faction, the Federalists, and Jefferson's faction, the Republicans. The Federalists favoured Great Britain more in foreign policy and some, including Adams and Alexander Hamilton, believed Great Britain's monarchical constitution was the greatest in the world. Meanwhile, the Republicans favoured France and Jefferson did not want "the only two republics on earth destroying each other."
The Federalists, who controlled the Congress and the Presidency, passed the Alien and Sedition Acts in order to help them win the election. Writing these resolutions, Madison and Jefferson were saying they were unconstitutional not just because they violated the 1st Amendment, but also because they violated the 10th Amendment. Madison used the word "interposition" to describe the state governments opposing unconstitutional federal legislation. Jefferson used the word "nullification" as he wanted the states to declare these laws null and void as an unconstitutional law is supposed to be no law at all. Both Madison and Jefferson also believed that it was absurd that only the Supreme Court had the authority to decide when the federal government violated the Constitution as the Supreme Court was itself a part of the federal government.
Both books go into several examples of how the doctrine of nullification was used by several states to resist federal tyranny. One example took place in this century when some states used it to nullify federal restrictions on medical marijuana. However, most uses of nullification were used before Abraham Lincoln and the GOP destroyed the 10th Amendment in the 1860s.
Both books not only emphasize the 10th Amendment, but also the fact that the Union was understood to be a voluntary union during the Founding. The Declaration of Independence declared that the states were "Free and Independent States." The Treaty of Paris in 1783 names all of them and calls them "free sovereign and Independent States." When the Constitution was being ratified, it was understood that the Union was voluntary and that the federal government would only have the powers given to it in Article 1 Section 8. Even with this understanding, many still believed it was important to put the 10th Amendment when it came to creating the US Bill of Rights. Writing to George Washington in 1791 on the constitutionality of a national bank, Thomas Jefferson said the 10th Amendment was the cornerstone of the Constitution.
Both books also condemn the 17th Amendment as it destroyed the power of the states over the federal government and hurts the spirit of American federalism. Before the ratification of the 17th, state legislatures elected U.S. Senators. Now, US Senators are popularly elected and they often take money from outside of their states to fund their campaigns. It makes me wish that the legislatures of the provinces of Canada chose their Senators, but unfortunately it's just the Governor General (who represents the British Monarch) appointing Senators to represent their provinces on the advice of the Prime Minister. In Germany, which is also a federation like Canada and the US, the states choose their representatives in their federal upper house, the Bundesrat. Despite being a unitary state, the Netherlands is pretty decentralized and also does this with their upper house.
Woods' book was published in 2010 around the time the Affordable Care Act, or Obamacare, was going through Congress. Healthcare is not listed in Article 1 Section 8 of the Constitution, so this Act violated the 10th Amendment. Woods wrote this book hoping that his readers would pressure their state legislatures to nullify the Affordable Care Act.
As a Canadian, I wish that we had nullification. Section 90 of the Constitution Act, 1867 creates the power of Disallowance against the provinces. Both the federal governments of John A. MacDonald and Alexander Mackenzie, the first two Prime Ministers of Canada, used this constitutional power to disallow what they claimed to be unconstitutional legislation by the provinces. If only it could be used the other way around.
Anyone who values federalism and decentralization could use the knowledge in Watkins' and Woods' books on the Virginia and Kentucky Resolutions of 1798. If more countries embraced the Spirit of '98, those countries would have more freedom.
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