Kentucky and Virginia Resolutions

Kentucky and Virginia Resolutions

Kentucky and Virginia Resolutions, in U.S. history, resolutions passed in opposition to the Alien and Sedition Acts, which were enacted by the Federalists in 1798. The Jeffersonian Republicans first replied in the Kentucky Resolutions, adopted by the Kentucky legislature in Nov., 1798. Written by Thomas Jefferson himself, they were a severe attack on the Federalists' broad interpretation of the Constitution, which would have extended the powers of the national government over the states. The resolutions declared that the Constitution merely established a compact between the states and that the federal government had no right to exercise powers not specifically delegated to it under the terms of the compact; should the federal government assume such powers, its acts under them would be unauthoritative and therefore void. It was the right of the states and not the federal government to decide as to the constitutionality of such acts. A further resolution, adopted in Feb., 1799, provided a means by which the states could enforce their decisions by formal nullification of the objectionable laws. A similar set of resolutions was adopted in Virginia in Dec., 1798, but these Virginia Resolutions, written by James Madison, were a somewhat milder expression of the strict construction of the Constitution and the compact theory of the Union. The resolutions were submitted to the other states for approval with no real result; their chief importance lies in the fact that they were later considered to be the first notable statements of the states' rights theory of government, a theory that opened the way for the nullification controversy and ultimately for secession.

See E. D. Warfield, The Kentucky Resolutions of 1798 (1887, repr. 1969); J. C. Miller, Crisis in Freedom (1951, repr. 1964).

The Kentucky and Virginia Resolutions (or Resolves) were important political statements in favor of states' rights written secretly by Vice President Thomas Jefferson and James Madison in 1798. They were passed by the two states in opposition to the federal Alien and Sedition Acts. Though often mentioned as a pair in modern historical discussions, they were actually two separate documents. The Kentucky Resolutions were written by Jefferson and passed by the state legislature on November 16, 1798, with one more being passed the following year on December 3, 1799. The Virginia Resolutions were written by Madison and passed by the state legislature on December 24, 1798. Jefferson and Madison collaborated on the writing of the two documents, but their authorship was not known for many years. The resolutions attacked the Sedition Acts, which extended the powers of the federal government over individuals inside the states. The resolutions declared that the Constitution was a "compact." That is, it was an agreement among the states. The federal government had no right to exercise powers not specifically delegated to it; should the federal government assume such powers, its acts under them would be void. Thus it was the right of the states to decide as to the constitutionality of such laws passed by Congress.

The resolutions were submitted to other states for approval but with no success. In New Hampshire, newspapers treated them as military threats and replied with sinister foreshadowings of civil war. "We think it highly probable that Virginia and Kentucky will be sadly disappointed in their infernal plan of exciting insurrections and tumults," proclaimed one. The other states legislature's unanimous reply was blunt:

Resolved that the Legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State against every aggression either foreign or domestic, and that they will support the Government of the United States in all measures warranted by the former. That the State Legislatures are not the proper tribunals to determine the Constitutionality of the laws of the General Government—that the duty of such decision is properly and exclusively confided to the Judicial department.

At a more serious level, Alexander Hamilton, then building up the army, suggested sending it into Virginia, on some “obvious pretext.” Measures would be taken, Hamilton hinted to an ally in Congress, “to act upon the laws & put Virginia to the Test of resistance.”

The Resolutions joined the foundational beliefs of Jefferson's party and were used as party documents in the 1800 election. As they had been shepherded to passage in the Virginia House of Delegates by John Taylor of Caroline, they became part of the heritage of the "Old Republicans." Taylor, unlike James Madison, rejoiced in what the House of Delegates had made of private citizen Madison's draft: it had read the claim that the Alien & Sedition Acts were unconstitutional as meaning that they had "no force or effect" in Virginia – that is, that they were void. Numerous scholars (including, amazingly, Koch and Ammon) have noted that Madison had the words "void, and of no force or effect" excised from the Resolutions before adoption, but without noting why the Republican majority agreed to this textual change: the Republicans joined future Virginia Governor and U.S. Secretary of War James Barbour in the conclusion that "unconstitutional" included "void, and of no force or effect." Far from moderating the Resolutions' content, then, the textual change Madison secured was meaningless. Their long-term importance lies not in their attack on the Sedition law, but rather in their strong statements of states' rights theory, which led to rather different concepts of nullification and interposition. Jefferson at one point drafted a threat for Virginia to secede, but dropped it from the text. In January 1800, the Virginia General Assembly passed the Report of 1800, a document by Madison affirming the principles of the Resolutions and responding to criticism they had received.

Although the legislatures of the New England states all immediately rejected the resolutions, some soon supported the principles of interposition and/or nullification. The state governments of Massachusetts, Connecticut, and Rhode Island all threatened to ignore the Embargo Act of 1807 based on the authority of states to stand up to laws deemed by those states to be unconstitutional (though they did not in fact try to nullify the laws). Rhode Island's justification for its position after the embargo was based on the explicit language of interposition. Within five years, Massachusetts and Connecticut again asserted the right of the states to their own test of constitutionality when they were instructed to send their militias to defend the coast during the War of 1812. Another embargo passed in 1813 that hurt New England trade was questioned once again by Connecticut and Massachusetts; the supreme courts of both states issued their objections, including this statement from the Massachusetts General Court:

A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.

Decades after the Resolutions were published, during the "nullification crisis" of 1828–1833, South Carolina threatened to nullify a federal law regarding tariffs. Andrew Jackson issued a resounding proclamation against the doctrine of nullification, stating: "I consider...the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." He also denied the right of secession: "The Constitution...forms a government not a league...To say that any State may at pleasure secede from the Union is to say that the United States is not a nation. Later, Abraham Lincoln also rejected the compact theory saying the Constitution was a binding contract among the states and no contract can be changed unilaterally by one party.

Historians have been divided on the importance of the resolutions. Some have been ambivalent because of their long-term impact. As Jefferson's biographer explains:

Called forth by oppressive legislation of the national government, notably the Alien and Sedition Laws, they represented a vigorous defense of the principles of freedom and self-government under the United States Constitution. But since the defense involved an appeal to principles of state rights, the resolutions struck a line of argument potentially as dangerous to the Union as were the odious laws to the freedom with which it was identified. One hysteria tended to produce another. A crisis of freedom threatened to become a crisis of Union. The latter was deferred in 1798-1800, but it would return, and when it did the principles Jefferson had invoked against the Alien and Sedition Laws would sustain delusions of state sovereignty fully as violent as the Federalist delusions he had combated.

References

  • Elkins, Stanley and Eric McKitrick. The Age of Federalism (1995)
  • [[Keving Gutzman|Gutzman, K[evin] R. Constantine]], "'O, What a Tangled Web We Weave ...': James Madison and the Compound Republic," _Continuity 22 (1998), 19-29.
  • Gutzman, Kevin R., "A Troublesome Legacy: James Madison and the 'Principles of '98,'" Journal of the Early Republic 15 (1995), 569-89.
  • Gutzman, K[evin] R. Constantine, "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the _Real Laws_ of Our Country,'" Journal of Southern History 66 (2000), 473-96.
  • Koch, Adrienne. and Harry Ammon. "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," William and Mary, Quarterly April 1948, pp. 145-76. online at JSTOR
  • Koch, Jefferson and Madison: The Great Collaboration (1950), ch. 7.
  • Watkins, William. Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (2004), an encomium of the resolutions.

Notes

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