In 1798 when the Federalist Congress passed the Alien and Sedition Act, the Anti-Federalist led by Thomas Jefferson were outraged. The law passed by Congress made in a criminal offense for newspaper editors and anyone to publicly criticize the President and/or Congress. There were a number of cases where editors of newspapers were incarcerated merely for speaking out against the policies of President John Adams.
It was Jefferson’s opinion that the laws to limit the freedom of speech and the press clearly violated the First Amendment.
In an effort to defend the rights of the people, Thomas Jefferson decided that when Congress passed unconstitutional legislation and the President signs them in to law there needed to be a way for the states to nullify laws that they felt were unconstitutional. He wrote the Kentucky Resolutions in 1798 and James Madison wrote a similar document for the state of Virginia.
In these documents it was asserted that the members of the state legislatures what were the representatives of the people had the lawful authority to the arbiter on which laws are Constitutional and which ones are not.
The Tenth Amendment clearly states that any power not granted to the government of the United States which is not prohibited to the states is reserved to the states and the people. Since the Supreme Court was not authorized to interpret the Constitution, it would be up to the state legislatures to judge whether or not a law was unconstitutional.
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