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A Constitutional History of the United States
Chapter XX - The Virginia and Kentucky Resolutions
by McLaughlin, Andrew C.

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 co÷peration 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 co÷perating 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 co÷peration 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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