Doctrine of ’98

Statement of the Constitution Party of West Virginia

In questions of power then let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.

– Kentucky Resolution of November 10, 1798

WE affirm and uphold the Doctrine of ’98 as expressed in the Kentucky and Virginia Resolutions of 1798-1799, viz:

THAT the powers of the Federal government result from a Compact, under the style and title of a Constitution for the United States of America, to which the States are parties, as limited by the plain sense and intention of the instrument constituting the Compact, as no further valid than they are authorized by the grants enumerated in that Compact.

THAT the government created by this Compact was not made the exclusive or final judge of the powers delegated to itself, since that would have made its own discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode of redress.

THAT it is true as a general principle, and is also expressly declared by one of the Amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

THAT if those who administer the Federal government be permitted to transgress the limits fixed by that Compact, by a total disregard to the special delegations of power therein contained, and assume undelegated powers, such acts are unauthoritative, void, and of no force, and that in cases of an abuse of the delegated powers, the States who are parties thereto 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.

THAT the several States who formed the Constitutional Compact, being sovereign and independent, have the unquestionable right to guard their reserved powers from infringement, and that in case of a deliberate, palpable, and dangerous exercise of powers not granted by the said Compact, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the Compact, (casus non foederis,) to nullify of their own authority all assumptions of power by others within their limits.

ACCORDINGLY, we strongly reject the doctrine, now contended for on so many sides, that the Federal Judicial authority is to be regarded as the sole expositor of the Constitution, in the last resort:

FIRST, there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the Judicial Department.

SECONDLY, if the decision of the Judiciary be raised above the authority of the sovereign parties to the Constitution, the decisions of the other departments, not carried by the forms of the Constitution before the Judiciary, must be equally authoritative and final with the decisions of the department.

THIRD, we refer to cases also where the forms of the Constitution may prove ineffectual against infractions dangerous to the essential rights of the parties to it.

FINALLY, we recognize that powers not delegated may not only be usurped and executed by the other departments, but that the Judicial Department also may exercise or sanction dangerous powers not delegated by the Constitution, and consequently that the ultimate right of the parties to the Constitution, to judge whether the Compact has been dangerously violated, must extend to violations by one delegated authority as well as by another; by the Judiciary as well by the Executive or the Legislature; whether by unauthorized review of State laws by the Federal courts, by laws passed in the Congress that exceed the granted powers (or are not necessary or proper to execute the same), or unconstitutional Executive orders or acts directed by the President.

IN ACCORDANCE with the said Doctrine of ’98, we recognize and solemnly declare, that the opinion of the Supreme Court of the United States in the case of Roe v. Wade (1973), exceeded that Court’s lawful authority under the Constitution, was a deliberate, palpable and dangerous usurpation of powers which the several States expressly reserved to themselves under the Tenth Amendment, and that this opinion is unauthoritative, void, and of no force in this State. And we affirm that this State has an obligation before God, and is in duty bound, consistent with our Declaration of Rights, to enact and enforce laws necessary to the protection of the lives of all unborn children, notwithstanding any prior or future opinion of the Federal Judiciary.

We reject the doctrine of “incorporation” pursuant to perverse interpretations of the Fourteenth Amendment, whereby the Federal Judiciary has presumed to deprive States of their legitimate police powers in restricting or proscribing pornography, sodomy and other immoral conduct, indecent exposure in dancing, loitering, flag-burning, teaching alien socialistic doctrines in the public schools, or any other of the numerous and indefinite powers which the people of the States reserved to themselves.

We further assert that any general “right of privacy,” and the extent thereof, is determined and defined by the people locally or in their respective States, and does not come under the lawful purview of the Federal Judiciary with respect to local ordinances or State laws.