Condemned to Repeat It: This 200+ Year Old Concept Rises Again in 2020

“Progress, far from consisting in change, depends on retentiveness. When change is absolute there remains no being to improve and no direction is set for possible improvement: and when experience is not retained, as among savages, infancy is perpetual. Those who cannot remember the past are condemned to repeat it.”
– George Santayana in his 1905 series, The Life of Reason: the Phases of Human Progress.

It’s not new. It’s been with us since George Washington ended his second term as President. You might have heard it ended once and for all during the nadir of the American experiment.

But it’s still here. And for all its association with evil, the worst of our proud heritage, people continue to embrace it like a badge of honor.

Yet, it began with such promise…

No one ever questioned George Washington. He’s our first and probably last unanimously elected (and reelected) President. His refusal to run for a third term prompted a battle royal against his Vice President John Adams and his former Secretary of State Thomas Jefferson.

The 1796 election was both contentious and close. While John Adams did win the popular vote, he barely squeaked by in the electoral college. In fact, Adams only won because a single elector in three states’ Electoral College pool captured by Jefferson switched their vote.

Further exasperating the situation, a clerical error in voting for Vice President gave that position to Jefferson. It would be the first and only time the Vice President came from the President’s opposing party. Needless to say, this marriage was doomed from the start.

Things came to a head two years later (although it would take more than two decades to know this). In 1798, Adams signed into law the Alien and Sedition Acts. You might remember the Sedition Act as particularly appalling as it violated the First Amendment’s freedom of speech guarantee.

In response to this, that same year, both Kentucky and then Virginia passed resolutions against the Alien and Sedition Act. These weren’t mere formalities. The “Kentucky and Virginia Resolutions” declared states had both a right and an obligation to void any federal law deemed unconstitutional.

There was no doubt the Sedition Act was unconstitutional.

The 1798 Kentucky Resolution, passed on November 10, 1798 and secretly written by then current Vice President and future President Thomas Jefferson, declared that states “will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these Acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.”

The Virginia Resolution, passed on December 24, 1798 and secretly written by future President James Madison, invoked the concept of “interposition.” It stated states “have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.”

As unpopular as the Alien and Sedition Acts were, the Kentucky and Virginia Resolutions sparked a bitter response. In hoping to get the other states to back them, Kentucky and Virginia found themselves slapped in the face. New England in particular minced no words in opposition to the Resolutions (ironic, given what they’d do a few years later in response to the War of 1812).

For example, let’s take a look at Vermont’s response. On Wednesday, October 30, 1799, “the foregoing answer passed the House one hundred and two to fifty and in Council read and concurred unanimously.” The lengthy letter began with a warning: “as you invite us our opinion, you will not blame us for giving it without disguise and with decision.”

Vermont did not disappoint. Within its critique included these ditties: “Would not this defeat the grand design of our Union?” “This idea, is too inhospitable to be admitted by a generous and free people.” “This is a sentiment palpably erroneous and hostile to the social nature of man.”

Not to be dissuaded, Kentucky went back to the drawing board and passed an updated resolution on December 3, 1799. It’s not known who drafted this version, but it did contain language originally drafted by Jefferson but not included in the first Resolution. This update contains the concept, long thought dead, we see rising again today: “nullification.”

This second Kentucky Resolution posits that, when they feel the Federal government has passed a questionable instrument, States, “being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.”

In the end, Jefferson beat Adams in the next election and the more controversial aspects of the Alien and Sedition Acts were allowed to expire in 1801. This issue of States’ rights would rise again, most notably in what was called “The Nullification Crisis” involving the right of the Federal government to impose tariffs (see “God and Calhoun at Yale,” Mendon-Honeoye Falls-Lima, March 16, 2017).

And while we quelled The Nullification Crisis without incident, it did expose a growing rift between those espousing States’ rights and those promoting a Federal imperative. This schism, of course, eventually led to the Civil War.

You might think the Civil War resolved the issue of nullification.

It didn’t.

We see it today throughout the country in “sanctuary cities” that fail to enforce national laws. We are beginning to see more of it in 2020 with Virginia counties vowing to become “Second Amendment Sanctuaries” in defiance of proposed state laws.

We’ve even seen it in our own state. It first appeared in sheriffs’ departments across the state (but mostly in Western New York) that refused to enforce the more extreme elements of the SAFE Act.

We saw it again last year when even Democrat County Clerk’s (most notably Erie County’s Michael Kearns, but not Monroe County’s Adam Bello) decided to “nullify” Andrew Cuomo’s Green Light Law allowing illegal aliens to obtain New York State Licenses, itself a brazen attempt to nullify Federal Immigration Law. (U.S. District Judge Elizabeth Wolford of the Western District of New York ruled against him).

The move towards nullification comes when a majority party forces its will on a recalcitrant minority. It rises when tribalism trumps compromise. Henry Clay and John Calhoun set aside the intense views of their respective constituents to enact their Compromise Tariff of 1833.

This settled things, but only for a while. When this “adult” generation of early American statesmen died off, an uncompromising partisan generation took over.

We all know how that ended.