The Virginia and Kentucky Resolutions

Our tendency to treat our contemporary problems as if they are unique can blind us to the fact that our country has always been divided. We have already detailed in this space some of the arguments surrounding the design of our Constitution, but those arguments continued, and have continued, long after its ratification. The fundamental problem it addresses — how to constitute a more energetic government while at the same time imposing appropriate restraints on it — remains with us today. The 237 year continued operation of the document is nothing short of a political miracle, particularly when one considers its near collapse in its first decade.

One of the most significant disputes involved whether the new document needed a Bill of Rights appended. Once added, however, amendments soon took on authoritative status. One of the first challenges to the integrity of the first ten amendments occurred, in the midst of the burgeoning conflict with France, culminating in the XYZ affair, President Adams encouraged passage of The Alien and Sedition Acts, which not only deposed French expatriates, but more importantly made it a crime to engage in speech critical of the government. (I should note that our government has long engaged in restrictions on “seditious” speech during times of war.)

In the 1790s, political divisions among the leaders revolved around attitudes toward the French and the English, with Adams very much on the pro-England side and Jefferson on the pro-French. The developing party system resulted in part over geo-political disputes, and Adams used the opportunity and the power of his office to silence members of the other party. The National Archives provides a nice summary of the laws:

As a result, a Federalist-controlled Congress passed four laws, known collectively as the Alien and Sedition Acts. These laws raised the residency requirements for citizenship from 5 to 14 years, authorized the president to deport "aliens," and permitted their arrest, imprisonment, and deportation during wartime. The Sedition Act made it a crime for American citizens to "print, utter, or publish...any false, scandalous, and malicious writing" about the government.

Using the law to reward friends and punish enemies is a mode of injustice, but it is also a mode of politics. And, in another refrain we hear today, Adams’s policies were in no small part motivated by the fact that new immigrants tended to join the other party.

The outcry was immediate. In response, the states of Kentucky and Virginia passed resolutions that would limit the ability of the federal government to enforce its new policies. Thomas Jefferson penned the Kentucky Resolution and James Madison the Kentucky one. In some ways, Madison’s is the more interesting, not only because to stakes out a more extreme position, but because of his changing relationship to the Constitution he played a decisive role in creating and which Jefferson had criticized from its inception. For that reason, Jefferson’s document takes a more critical stance.

In the Virginia Resolution, Madison restated the commonwealth’s commitment to the compact of the states and to the Constitution in its plain sense. However, he expressed concern that the federal government had unduly enlarged “its powers by forced constructions of the constitutional charter.”  He continued:

…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…

In so doing, the federal government not only destroyed “the meaning and effect” of the enumerated powers outlined in the charter, but more damnably the “inevitable consequence … would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.”

The Alien and Sedition Acts, Madison averred, operated on the assumption that the government possessed powers not enumerated in the Constitution and that the acts violated the separation of powers by placing too much authority into the executive branch. In one of the more well-known phrases from the document, Jefferson referred to free speech as “the only effectual guardian of every other right.”

The Virginia assembly recommended to all the other states that they issue their own resolutions, by which they would jealously guard their own privileges and the rights retained by the people, and alert their senators and representatives to the nature of the problem.

Kentucky eagerly took up the challenge, and about a year later issued their own, and in many ways their statement more clearly lays out the nature of the problem. After having declared the Acts unconstitutional, the next (obvious) question was: what powers do the states have at their disposal to resist federal encroachments on their prerogatives? What good is a power with no means for its enforcement? In many ways, Jefferson repeats Madison’s argument, but he goes further. Part of Jefferson’s argument plays out a central tenet of the common law: that no man can be a judge in his own case. If disputes emerge between the federal government and the states, who could resolve the disagreement?

Jefferson saw a fundamental defect in the compact, and one that would eventually lead to war: that if the federal government could be the sole judge in disputes involving their powers and those of the states, the federal government would always rule in its own favor. In that case, what recourse would the states have in order to defend their own sovereign authority? Without a countervailing power, the inevitable outcome would be the “annihilation of the state governments, and the erection upon their ruins, of a general consolidated government.”

So what to do? Part of Jefferson’s response hinged on his understanding concerning the identity of the parties that created the Constitution. Clearly part of this gradual displacement of state sovereignty occurred as a result of interpreting the Constitution as a creation of the undifferentiated mass of Americans rather than the states, the former position most forcibly articulated by Jefferson’s cousin and great nemesis, John Marshall. But Jefferson clearly assumes the latter position, that the Constitution is a compact among the states:

the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy…

Nullification. The states, in other words, would have the ability to declare acts of the federal government unconstitutional and would neither defend nor enforce the attendant provisions.

But what if the federal government sought to enforce its, in this case criminal, laws by convicting and punishing citizens directly? Jefferson assumed that citizens of Kentucky were citizens of Kentucky first and America second, and therefore the state had both the right and responsibility to “interpose” itself between an overreaching federal government and the individual citizen. That word appears in the Virginia, but not the Kentucky resolution, but the sentiment transfers:

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.

As we’ve said, the debates about the relationship between the powers of the federal and the state governments, and the related disputes about who created the Constitution, would continue to drive American politics for the next 80 years before achieving some kind of resolution on the battlefields of the Civil War. But even that did not end the debates, which still dog our politics to this day.

Discussion Questions:

1. What options do states have if they want to resist “encroachments” of power? What could the US do if it felt the UN or NATO was overstepping its bounds?

2. Does it matter that the preamble to the Constitution says “We the people of the United States”? What does the word “states” mean in that clause?

3. How would a state “interpose,” if not by some kind of military force?

By Jeff Polet

Director of the Ford Leadership Forum, Gerald R. Ford Presidential Foundation

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