Judicial supremacy, brought about by the Federal Judiciary Act of 1789, gave the federal government in general and the Supreme Court specifically the final word on the constitutionality of a statute. This was controversial in itself, but was not truly tested until 1798 when the Alien and Sedition Acts were passed. In response to these acts which some viewed as unconstitutional. Two resolutions from the state legislatures of Virginia and Kentucky, secretly written by James Madison and Thomas Jefferson, argued that the states did have the right to declare unconstitutional those statutes that the states felt were not authorized by the Constitution. Jefferson, in the Kentucky Resolution, stated "if the powers assumed by Congress are not delegated to them specifically by the Constitution, then a nullification of the act is rightful." (1) These resolutions were promoting a strict construction of the Constitution and states rights.
The principles stated in these resolutions became known as the "Principles of '98", and these principles split Jeffersonian democrats during Andrew Jackson's presidency, when John C. Calhoun, his former vice president, said that South Carolina would not enforce the Tariff of 1828 and they would do so because of their right to nullify, causing the Nullification Crisis in 1832. These principles were also used as a basis for the northern states to push for nullification of the Fugitive Slave Act which was a part of the Compromise of 1850.
There are strong arguments on both sides of this issue. In the two readings, one from Abel Upshur and the other from Joseph Story, the two sides are presented. Mr. Upshur states that the federal government is not the Constitution, but it exists because of it. Since the states made the Constitution a reality by ratification, then the federal government exists only at the will of the states, and therefore has no right to judge the constitutionality of statutes. He even quotes that "each state out of necessity must be its own arbiter." (2) Mr. Story's main argument is that the federal government is responsible because if states were left to their own devices, they could choose one thing today and after an administration shift, choose the opposite. "If the people can choose to follow the federal government's decisions or not, then what power does the Constitution actually have at all?" (3)
As I imagine myself living in the 19th century and being far more tied to my state than to the federal government, I am fairly sure that I would have pushed for the states rights and a strict construction of the Constitution. I would by necessity feel that my needs, and that of my state, were of far more importance than the federal government, or what some other state deems advantageous for them. Inserting myself into that dilemma, that is how I would respond.
From a 21st century viewpoint, I would like to think I am more worldly minded than I would have been in the 1800s. I do believe there are national issues that require there to be a central authority for the judging of constitutionality simply due to the many more issues that have come up. But I find that I am very much like my "1800s self" in that I enjoyed that Florida made decisions that did not necessarily go along with the judgments of other states during this past pandemic, and I very much would have loved to have seen my state be able to nullify the recent Supreme Court decision to make same sex marriages legal in all states. In weighing those two positions (much more easily done in the early 1800s than now), I am of the belief that judicial supremacy is warranted for the United States.
(1) White, "Judicial Supremacy versus State Interposition"
(2) Upshur, "A Brief Enquiry into the Nature and Character of Our National Government", chapter IX.
(3) Story, "Commentaries on the Constitution of the United States (1833)", paragraphs 380-385.
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"Kentucky and Virginia Resolutions." Wikisource. https://en.wikipedia.org/wiki/Kentucky_and_Virginia_Resolutions. (accessed May 30, 2021)
Story, Joseph L. "Commentaries on the Constitution of the United States (1833)". lonang.com/library/reference/story_Commentaries_us-constitution/story-304. (accessed June 1, 2021)
Upshur, Abel P. "A Brief Enquiry into the Nature and Character of Our National Government", chapter IX. Wikisource. jhttps://en.wikisource.org/A_Brief_ Enquiry_into_the_Nature_and_Character_of_Our_National_Government/IX. (accessed June 1, 2021)
White, Jonathan. "Judicial Supremacy versus State Interposition." Liberty University video (accessed May 31, 2021)