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A Constitutional History of the United States
Chapter XX - The Virginia and Kentucky Resolutions
by McLaughlin, Andrew C.
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Jefferson and Madison thought it high time that there be some public
protest against the Alien and Sedition Acts, and against the whole doctrine of
constitutional interpretation wantonly made use of by the Federalists to
justify their ends. The government, still young, still without established
principles, might be so carried on as to become in reality a government of
unlimited authority, doing as it listed without respect for constitutional
restraint. In any attempt to evaluate or understand the protests that came from
these two men, we must bear in mind not only their desire to defend individual
liberty, but (perhaps chiefly) their antagonism to a Federalist system of
constitutional interpretation which they feared would make of the Constitution
nothing but a scrap of paper. They determined to call the attention of the
country to the fact that, on proper constitutional principles, the government
was a limited government, not to be magnified into omnipotence by processes of
cunning construction. That was the central assertion.
Jefferson drew up resolutions which were passed in somewhat softened
form, but without very material alteration, by the Kentucky legislature,
November 16, 1798. Their authorship was not known until long afterwards.
Madison prepared resolutions which were adopted by a majority of the Virginia
legislature after earnest debate, December 24, 1798. Appeal was made for the
coöperation of the other members of the union. The Kentucky resolutions
expressed the belief that the "co-States, recurring to their natural right in
cases not made Federal, will concur in declaring these acts void and of no
force, and will each unite with this Commonwealth in requesting their repeal at
the next session of Congress." The Virginia resolutions expressed confidence
that the other states would concur in declaring the obnoxious acts
unconstitutional, and that each would take necessary and proper measures for
coöperating with Virginia in maintaining "the authorities, rights, and
liberties reserved to the States respectively, or to the people." After hearing
from various states, Kentucky passed a second set of resolutions (November 22,
1799) which indicated no repentance, but contained the word "Nullification"
which in the course of time came to have dramatic if not tragic connotations in
American history: "That a Nullification by those sovereignties, of all
unauthorized acts done under color of that instrument is the rightful
remedy".[1] The words "nullification" and "the rightful remedy"
appeared in Jefferson's draft of the previous year.[2] The Virginia
legislature (1800) considered an elaborate and very able report prepared by
Madison, presenting what in his opinion were the fundamentals of the
constitutional system and forcefully declaring that in the last resort the
states must judge of the extent of the government's powers. After this
consideration, the legislature reaffirmed its adherence to the principles
previously announced.
The resolutions of 1798 — the first sets which were sent forth by
the two protesting states — are the most important. The Kentucky
resolutions at considerable length skillfully arraigned the constitutionality
of the Alien and Sedition Acts; they declared that the Congress of the United
States, having been granted power to punish certain crimes, such as treason and
piracy, had no power to punish other crimes; that this power belonged to the
respective states; that alien friends were under the jurisdiction of the state
wherein they reside; that no power over freedom of speech and of the press was
delegated to Congress; that authorizing the president to remove an alien
without a shadow of a judicial trial was a palpable violation of the
Constitution. The Virginia resolutions were briefer and less specific but of
the same general tenor.
In each of the first series of resolutions, we find one paragraph laying
down certain general principles concerning the nature of the union; and those
general principles were in later years often quoted and rehearsed; their
sentiments were loudly proclaimed and applauded by tens of thousands who
doubtless had never seen or read the documents for which they expressed so much
reverent affection. The resolutions of 1798 were held to contain the creed of
the Democratic-Republican party, and they were, in fact, the classic expression
of the states' rights doctrine. Furthermore, at a later time, especially when
Calhoun took up the task of defending South Carolina against the tariff
(1828-1833), they were used to support the doctrine of state sovereignty, a
doctrine far in advance of mere states' rights.[3] These particular
paragraphs — the third in the Virginia set, the first in the Kentucky
— require our special attention, for it will be noticed that the main
contention of the resolutions, viz., the unconstitutional character of the
Alien and Sedition Acts as encroachments on individual liberty, was in the
course of time lost from sight and attention was paid to the general principles
which were laid down as introductory to the argument.
The third paragraph of the Virginia resolutions is as follows: "That
this Assembly doth explicitly and peremptorily declare that it views the powers
of the Federal Government as resulting from the compact to which the States are
parties, as limited by the plain sense and intention of the instrument
constituting that compact; as no further valid than they are authorized by the
grants enumerated in that compact; and that, in case of a deliberate, palpable,
and dangerous exercise of other powers not granted by the said compact, 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."
The first paragraph of the Kentucky resolutions reads: "Resolved,
that the several States composing the United States of America, are not united
on the principle of unlimited submission to their general government; but that
by compact under the style and title of a Constitution for the United States
and of amendments thereto, they constituted a general government for special
purposes, delegated to that government certain definite powers, reserving each
State to itself, the residuary mass of right to their own self-government; and
that whensoever the general government assumes undelegated powers, its acts are
unauthoritative, void, and of no force: That to this compact each State acceded
as a State, and is an integral party, its co-States forming, as to itself, the
other party: That the government created by this compact was not made the
exclusive or final judge of the extent of the powers delegated to itself; since
that would have made its 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 and measure of redress."
What was the constitutional theory of these documents? As far as the
remedy for unconstitutional exercise of authority is concerned, it may perhaps
be that they were intended to mean and did mean only that the states in
coöperation could lay down authoritative interpretation of the
Constitution, either by amendment or by some such process. It may be that the
purpose of the resolutions was only to call upon the states to recognize and
announce a principle; possibly the chief immediate purpose was to persuade the
people to choose congressmen who would register dissent from Federalist
doctrine. That these various methods were in Madison's mind seems the
inevitable conclusion from his words in the report of 1800.[4] But
there are a few words, especially those of Jefferson, which militate against
this gentle and favorable construction.[5]
"Nullification" as used by Jefferson presents more difficulty then does
"bound to interpose." Jefferson's pen ran swiftly and with perilous ease. But
we need not ignore the latter portion of his resolutions — the set adopted
with modifications by Kentucky in 1798 — which contained an eloquent
denunciation of tyranny. His main assumption in this connection appears to be
sufficiently orthodox, at least for his day. Just as individuals when they
enter society and set up government may surrender certain rights which were
theirs in a state of nature and reserve the rest, so states entering the union
could grant away a portion of their sovereign rights. What was to be done in
case the reserved rights were encroached upon? Possibly he meant that each
state could separately resist and, if necessary, retire. Neither he nor Madison
would be willing to acknowledge that men could not in times of supreme danger
resist government.[6] This so-called right of revolution was,
however, quite different from the right of a sovereign body politic to act upon
its absolute, legal, sovereign authority under any and all circumstances and
refuse to be bound by an international engagement. We must remember also that
we are almost certain to be misled, if we insist upon interpreting the words
"nullification" or "bound to interpose" as meaning exactly what they did after
Calhoun and South Carolina had given visible and objective lessons in the
subject. This fact must give us pause. We must stop to realize the likelihood,
if not the certainty, of our erring, if at the outset we apply to words of 1798
the connotations with which words were clothed thirty years later, after John
Taylor and John C. Calhoun had let the light of their intellects play upon the
subject of sovereignty, and after Calhoun had elaborated a metaphysical
philosophy.
It is well to recall the object of the resolutions. The framers and
advocates of these resolutions had no intention of breaking up the union,
though they may have feared the dissolution of the union as the result of
Federalist aggression. Nor did they wish to announce that the central
government had no power; they wished to assert that it did not have all
power; that its authority was limited by the plain sense and intention of the
Constitution; [7] that there were limits on congressional power; and
that, if Congress overstepped those limits, its acts were void. Now there is no
more elementary principle of American government than this; it is the very
first foundation-stone of our whole system; government has only delegated
authority. But if it has only delegated authority, what is to be done in case
it oversteps the prescribed bounds? Who is to judge whether the bounds have
been passed or not? Jefferson declared the states — perhaps an individual
state — were to judge of the infraction of the Constitution; Madison
believed they had the right to "interpose"; Jefferson emphatically announced
that the national government was not the exclusive and final judge of the
powers delegated to itself. There, in other words, stood the old question:
granted that government, founded on consent, has only delegated authority, who
is to judge whether further authority has been seized? It is the old question
which Locke and the advocates of derived government had to meet; they justified
opposition only when "a long train of abuses" (to quote both Locke and the
Declaration of Independence) dangerously infringed upon natural rights. The
critical problem of constitutional history, therefore, was not whether the
states were possessed of unqualified sovereignty, but whether it was theirs to
pass judgment concerning an alleged deliberate, palpable, and dangerous
encroachment upon their reserved rights. In the course of time, but only in the
course of time, the right of the national government to judge of its own
powers, subject to revision by amendment to the Constitution, became, from the
practical necessity of the situation, the accepted constitutional principle.
But for the first forty years of the Constitution's life the problem most
frequently appearing and giving the most anxious attention was this very
question — the right to judge.
The more important question remains: what theories of the nature of the
union were held by the framers of these documents and by those giving the
resolutions their support? A common, almost universal, method of interpretation
begins by ignoring the argument for individual liberty and the very able
presentation of constitutional limitation; the main content of the resolutions
is held to be a declaration that the union is a system of sovereign states, a
confederation from which each state can retire at any moment at its discretion;
nullification- — refusal to be bound by any objectionable act — is
within the rights of any state; and if an attempt is made to enforce the act,
secession is the natural remedy.[8] Jefferson and Madison, then,
— the one "the founder of the Democratic party", the other "the father of
the Constitution" — were also the founders and fathers of state
sovereignty, forcible nullification, and secession. This method of
interpretation, which finds in the resolutions the full-blown doctrine of state
sovereignty and secession, depends upon the significance attributed to certain
words, the most important being "compact", "parties", and "sovereign". If the
Constitution is a compact, and if parties by entering into a compact cannot
thereby form a new body politic and establish a legal authority, then of course
it follows, as night the day, that the states are not legally bound by the
Constitution, that they are not members of a body, and that they can
withdraw from the system in which they have temporarily aligned themselves. If
the states are "sovereign", as the second Kentucky resolutions declare, and if
sovereignty means complete political authority, then, naturally, the union is
not sovereign or partly sovereign; the individual states are totally
self-determining; they cannot do anything illegal because any step they may
take is legal. But on the other hand, if a compact is binding, if by a
compact a body politic can be formed, then to call the Constitution a compact
does not mean that a body politic was not formed; it does not mean that
the Constitution is not binding. If sovereignty is divisible, then to call the
states sovereign does not necessarily mean that they have undiminished
sovereignty. In other words, if you insist on making certain words mean what
you want them to mean, you can reach the conclusion you wish to reach.
The discussion just given brings to our attention the nature of the
thinking of the men of 1798. The pivotal doctrines announced in the resolutions
were those written by Jefferson in the Declaration of Independence; the
philosophy was the philosophy of the American Revolution. Is it necessary to
repeat the substance of that philosophy? All free and rightful government rests
on consent, on agreement; all rightful governmental authority is delegated
authority; if government exceeds the bounds of delegated authority, its acts
are unauthoritative and of no force. The latter portion of the ninth resolution
of Kentucky brings out the idea succinctly: "... the co-States, recurring to
their natural right in cases not made Federal, will concur in declaring these
acts void and of no force...." The Virginia and Kentucky resolutions rest on a
political philosophy which at a later day Calhoun and the advocates of state
sovereignty positively rejected. No long disquisition should be necessary for
the student of eighteenth-century politics. There was no more solemn word in
the political vocabulary of the eighteenth century than the word "compact"; all
decent government rested on compact; every free state rested on compact; social
relations rested on compact; kingship and the once-revered English constitution
rested on compact; governments derived their just power from the consent of the
governed. Furthermore, the men of the eighteenth century believed sovereignty
could be divided.[9]
Madison's letters of a later day, when Calhoun and South Carolina issued
their pronouncements, were complete answers to the declaration, or rather the
assumption, that his theories of 1798 were identical with those of the great
Carolinian: "Were this a mere league, each of the parties would have an equal
right to expound it; and of course, there would be as much right in one to
insist on the bargain, as in another to renounce it. But the Union of the
States is, according to the Virga doctrine in 98-99, a
Constitutional Union; and the right to judge in the last resort,
concerning usurpations of power, affecting the validity of the Union, referred
by that doctrine to the parties to the compact.
On recurring to original principles, and to extreme cases, a single
State might indeed be so oppressed as to be justified in shaking off the yoke;
so might a single county of a State be, under an extremity of oppression. But
until such justifications can be pleaded, the compact is obligatory in both
cases." [10] There is nothing more interesting, and, in the history
of constitutional construction, more important, than the controversies that
arose when men had forgotten the meaning of words. Madison had not
forgotten.
Someone may say that the theory that the states could judge of
encroachments on their reserved rights menaced in plain everyday reality the
stability of the union quite as much as did the doctrine of complete
sovereignty. But there is an obvious distinction (and for everyday practical
purposes a useful distinction) between the assertion that the states are wholly
sovereign — no more bound than England or France or Spain would be if they
entered into a treaty — and the assertion that they have the duty of
protecting their reserved rights. If we are interested in the history of
constitutional interpretation, such a distinction is vital.
The resolutions brought forth answers from the legislatures of sister
states.[11] The question could not be divorced from the violence and
prejudice of party politics. The chief topic under consideration was the
constitutionality of the Alien and Sedition Acts. Some of the answers deserve
attention because they explicitly declare that it is not the duty of state
legislatures to decide on the constitutionality of federal laws, for such power
has been bestowed upon the judiciary. Furthermore, the failure of the states to
deny that the Constitution was a compact is illuminating.[12] This
failure may be considered as indicating that they accepted the idea that each
state was absolutely sovereign and bound only by treaty, that no state was
legally bound. But the very absence of this failure indicates just the
contrary. No one was likely to be shocked by a reference to the Constitution as
a "compact"; to the men of that day the word did not have the connotations
which the men in later years put upon it. Massachusetts, who in adopting her
own state constitution called it a "compact", declared through her senate in
1799: "... that ... they cannot admit the right of the state legislatures to
denounce the administration of that government to which the people themselves,
by a solemn compact, have exclusively committed their national concerns....
That the people, in that solemn compact which is declared to be the supreme law
of the land, have not constituted the state legislatures the judges of the acts
... of the federal government...."
Virginia, it is often said, prepared for forcible resistance in
1798.[13] The charge, resting on almost no evidence which can be
considered as real evidence, has been pretty thoroughly demolished. It should
no longer be cited as proof that the resolutions of 1798 were intended to be a
declaration of a single state's right to resist in arms or of an intention, if
need be, to resort to war and a dissolution of the union.[14]
[1] Italics of the original omitted.
[2] Jefferson had said, "... in cases of an abuse of the
delegated powers, the members of the general government, being chosen by the
people, a change by the people would be the constitutional remedy; but, where
powers are assumed which have not been delegated, a nullification of the act is
the rightful remedy." Works (federal ed.), VIII, p. 471.
[3] "States' rights" and "state sovereignty" are often used
as synonymous expressions; but a distinction should be made. One may well hold,
and indeed must hold, that under our constitutional system the states have
rights of government beyond the reach of the central government; but he need
not hold that the states are sovereign, certainly he need not believe them
possessed of the unalloyed and undiminished sovereignty which Calhoun asserted
belonged to them.
[4] Elliot, Debates, IV, p. 546, and especially pp.
578-579. Twenty-five years later (1823), Jefferson wrote: "The ultimate arbiter
is the people of the Union, assembled by their deputies in convention, at the
call of Congress, or of two-thirds of the States." Works (H. A.
Washington, ed.), VII, p. 298.
[5] Alexander Johnston made an excellent study of the
constitutional phases of the resolutions, especially in regard to
"nullification". See Alexander Johnston, "Kentucky and Virginia Resolutions,"
Cyclopaedia of Political Science (J. J. Lalor, ed.), II, pp. 672-677. By
way of summary, Johnston says that "... the resolutions of both series are a
protest against a supposed intention of the federalists to place some
restrictions upon any attempt of state legislatures to demand a national
convention to sit in judgment upon the acts of the federal government; that the
belief in such an intention was fostered by the federalists' use of the then
novel word 'sovereign,' as applied to the federal government, and by their
constant assertions that the federal government was the 'final' judge of the
extent of its own powers, thus seeming to exclude any such power in a new
national convention; that both Jefferson and Madison intended, 1, to appeal to
public opinion, and 2, to rouse the states for a prompt call for a national
convention upon the first appearance of an attempt by congress and the
president to make such legislative action penal under a new sedition law...."
p. 676. Johnston states that the word "compact" in the resolutions is
unessential; that Madison clearly did not use the word "in its full sense", and
that the case is much more doubtful in regard to Jefferson. By "compact" "in
its full sense" Johnston evidently means what Calhoun at a later date meant by
it, i.e., an agreement or contract which did not establish a new and
authoritative body politic.
[6] In 1832 Madison, writing to C. E. Haynes, said: "It is
true that in extreme cases of oppression justifying a resort to original
rights, and in which passive obedience & non-resistance cease to be
obligatory under any Government, a single State or any part of a State
might rightfully cast off the yoke." Italics mine. Writings (Gaillard
Hunt, ed.), IX, p. 483. This, it will be noticed, is the right of
self-preservation and the right to resist government which any
individual or group is supposed to have, and not the right of a sovereign body
to retire from a league.
[7] If the reader will refer to the Virginia resolution
quoted above, and will substitute the word "Constitution" for "compact", he
will probably not find much contrary to orthodox constitutional interpretation;
he will probably find nothing to affront him, however nationalistic his
opinions, until he reaches in his reading that portion of the resolution
referring to the right of the states to "interpose". And what does "interpose"
mean?
[8] The best example of this kind of interpretation is H. von
Holst, The Constitutional and Political History of the United States, I,
ch. IV. According to this writer, Madison and Jefferson meant the same thing;
Madison was a bit more wily or circumspect; but "bound to interpose" and
"nullification" meant exactly the same thing; the resolutions meant everything
that came out in the South Carolina troubles of 1832, and meant the
constitutional doctrine that underlay secession.
[9] "It has hitherto been understood, that the supreme power,
that is, the sovereignty of the people of the States, was in its nature
divisible, and was in fact divided, ... that as the States, in their highest
sov. char., were competent to surrender the whole sovereignty and form
themselves into a consolidated State, so they might surrender a part &
retain, as they have done, the other part.... Of late, another doctrine has
occurred, which supposes that sovereignty is in its nature indivisible; that
the societies denominated States, in forming the constitutional compact of the
U. States, acted as indivisible sovereignties, and consequently, that the
sovereignty of each remains as absolute and entire as it was then.... In
settling the question between these rival claims of power, it is proper to keep
in mind that all power in just & free Govts. is derived from
compact...." Madison, Writings (Gaillard Hunt, ed.), IX, pp. 568-569.
See Letters and Other Writings of fames Madison (1865 ed.), IV, pp. 61,
75, 293-294, 393, 419. See also, Kohl v. United States, 91 U. S. 367,
372 (1876).
In Gaillard Hunt, The Life of James Madison, there is an
interesting and valuable chapter on "The Madison Doctrine and Nullification".
"When the nullification doctrine [of 1828 and after] appeared the Virginia
Legislature resolved by a vote almost unanimous that the Virginia resolutions
of 1798 did not support it, and Madison wrote to Edward Livingston: 'The
doctrine of nullification [is] as new to me as it was to you." The conclusion
is inevitable that these public men who were personally concerned in the
movement of 1798 and who saw the South Carolina doctrine appear in 1828 did not
believe that the former furnished a fair foundation upon which to build the
latter." p. 263.
[10] Letter from Madison to J. C. Cabell, September 7, 1829,
in Writings (Gaillard Hunt, ed.), IX, pp. 347-348.
[11] Elliot, Debates, IV, p. 532 ff. Certain
additional materials, contributed by F. M. Anderson, are in Am. Hist.
Rev., V, pp. 45-63; 225-252.
[12] "This fundamental doctrine received no attention in any
of the replies or the discussions over them, so far as the latter have been
preserved, except in the reply of Vermont to Kentucky." F. M. Anderson,
"Contemporary Opinion of the Virginia and Kentucky Resolutions, II," Am.
Hist. Rev., V, p. 237. Professor Anderson also says, "Thus, according to
Madison's further reasoning, the people of each state instead of the people of
the United States en masse, were the parties to the Constitution. In the
counter-resolutions offered by the Federalists this interpretation of the
parties to the Constitution is accepted entirely. The conclusion which the
Federalists drew from this premise, as applied to the particular question at
hand was quite different from that drawn by Madison, but the agreement between
them is significant, for it shows that many of the Federalists as well as the
Republicans accepted the fundamental doctrine of state sovereignty."
Ibid., p. 242. Probably the vast majority of people in 1798-1799, if
they thought at all, believed that the Constitution was a compact and was
adopted by the states; but did they place upon the word the meaning with which
Calhoun invested it thirty years later? In one respect I cannot agree with
Professor Anderson: the fundamental doctrine of state sovereignty, I should
say, is not that the Constitution is a compact, but that, because it is a
compact it is not binding law, and that if it was adopted by the states, then
it was only an agreement. John Marshall also believed that the people of the
states adopted the Constitution.
[13] See the evidence cited in A. J. Beveridge, The Life
of John Marshall, II, pp. 399-400; see von Holst, op. cit., I, pp.
156-158.
[14] See P. G. Davidson, "Virginia and the Alien and Sedition
Laws," Am. Hist. Rev., XXXVI, pp. 336-342. In fact, anyone reading
carefully through the debates in the Virginia legislature will find it
difficult or impossible to believe that armed conflict was preparing. That a
state by legislative act could prepare for war, build an arsenal and the like,
and do all this in almost complete and profound secrecy at the time, is too
great a strain upon one's power of credence.
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