In 1798 a Federalist Congress passed the Alien and Sedition Acts, whose constitutionality no Federalist judge ever doubted, but which Jefferson considered as clearly a violation of the fundamental compact, since they tended to drive certain states, as he thought, into “revolution and blood.”  Under this provocation Jefferson proclaimed that it was both the right and the duty of any state, which felt itself aggrieved, to intervene to arrest “the progress of the evil,” within her territory, by declining to execute, or by “nullifying,” the objectionable statutes.  As Jefferson wrote the Kentucky Resolutions in 1798 and was elected President in 1800, the people at least appeared to have sustained him in his exposition of the Constitution, before he entered into office.

At this distance of time we find it hard to realize what the election of 1800 seemed to portend to those who participated therein.  Mr. Jefferson always described it as amounting to a revolution as profound as, if less bloody than, the revolution of 1776, and though we maybe disposed to imagine that Jefferson valued his own advent to power at its full worth, it must be admitted that his enemies regarded it almost as seriously.  Nor were they without some justification, for Jefferson certainly represented the party of disintegration.  “Nullification” would have been tantamount to a return to the condition of the Confederation.  Besides, Jefferson not so many years before had written, in defence of Shays’s rebellion, that the tree of Liberty could never flourish unless refreshed occasionally with the blood of patriots and tyrants.  To most Federalists Jefferson seemed a bloodthirsty demagogue.  In 1796 Oliver Ellsworth had been appointed Chief Justice by General Washington in the place of Jay, who resigned, and in 1799 John Adams sent Ellsworth as an envoy to France to try to negotiate a treaty which should reestablish peace between the two countries.  Ellsworth succeeded in his mission, but the hardships of his journey injured his health, and he, in turn, resigned in the autumn of 1800.  Then Adams offered the Chief Justiceship to Jay, but Jay would not return to office, and after this the President selected his Secretary of State, John Marshall, one of the greatest of the great Virginians, but one of Jefferson’s most irreconcilable enemies.  Perhaps at no moment in his life did John Adams demonstrate his legal genius more convincingly than in this remarkable nomination.  Yet it must be conceded that, in making John Marshall Chief Justice, John Adams deliberately chose the man whom, of all his countrymen, he thought to be the most formidable champion of those views which he himself entertained, and which he conceived that he had been elected President to advance.  Nor was John Adams deceived.  For thirty-four years John Marshall labored ceaselessly to counteract Jefferson’s constitutional principles, while Jefferson always denounced the political partiality of the federal courts, and above all the “rancorous hatred which Marshall bears to the government of his country, and ... the cunning and sophistry within which he is able to enshroud himself."[11]