CIVIL LIBERTIES: KENTUCKY AND VIRGINIA RESOLUTIONS

When Americans have gone to war, measures to protect national security have often conflicted with civil liberties guaranteed in the Constitution. This conflict, inherent in American political culture, first appeared in 1798 during America's quasi-war with France. The Kentucky and Virginia Resolutions were part of the Democratic Republican response to the Adams administration's attempts to curb civil liberties during that war. Drafted secretly by Thomas Jefferson (the Kentucky Resolutions of 1798 and 1799) and James Madison (the Virginia Resolutions of 1798), the Resolutions were a formal protest by the legislatures of Kentucky and Virginia against the Alien and Sedition Acts that the Federalist-dominated Congress had passed in 1798 in the name of protecting national security.

Among other things, the Alien and Sedition Acts created a registration and surveillance system for aliens residing in the United States, provided the executive branch with the authority to deport aliens seen as a threat, and potentially made any criticism of government a crime. These acts deeply divided the nation between those who saw them as a reasonable response to a crisis situation and those who viewed the restrictions as dangerous, politically motivated, and unconstitutional. The Kentucky and Virginia Resolutions held that the Alien and Sedition Acts should be null and void because they violated numerous provisions of the Federal Constitution.

The resolutions reflected the fears of many Democratic Republicans that these acts' suppression of civil rights represented the final stages of an effort by Federalists to, as Madison put it in the Virginia Resolutions, transform the "republican system of the United States into an absolute, or at best a mixed monarchy." Those fears were built on eight years of Federalist rule that included the passage of Alexander Hamilton's financial program, the Jay Treaty with Britain, and an expansion of the federal judiciary. The crisis with France added a military buildup that triggered deep-seated worries among many Democratic Republicans that the Federalists might use the standing army to maintain power by force. Democratic Republicans viewed the Alien and Sedition Acts not as national security measures, but instead as bald attempts to silence political opposition and maintain Federalist rule.

The Kentucky and Virginia Resolutions held that the Alien and Sedition Acts were unconstitutional on a variety of grounds. Madison and Jefferson asserted that the Sedition Acts violated First Amendment protections of free speech and freedom of the press. Both resolutions claimed that the Alien and Sedition Acts breached the separation of powers laid out in the Constitution by giving the executive branch both legislative and judicial authority. In the Kentucky Resolutions, Jefferson argued that the Alien Acts also abridged the due process and jury trial provisions of the Fifth Amendment (rights he said extended to friendly aliens living on American soil). Jefferson even argued that the provision in the Constitution preventing Congress from banning the slave trade until 1808 prevented Congress from enacting legislation limiting the migration of aliens as well. Nowhere in the resolutions did Jefferson or Madison address the question of civil rights during wartime. Indeed, the resolutions did not mention the crisis with France at all and framed constitutional rights in absolute terms.

The heart of the unconstitutionality argument in the Kentucky and Virginia Resolutions rested on a strict states' rights interpretation of the Constitution. The resolutions held that the Alien and Sedition Acts violated the Tenth Amendment which reserved to the states any powers not specifically delegated to Congress by the Constitution. Both sets of resolutions asserted that the Constitution was a compact among the states and that when Congress assumed rights not directly specified in the Constitution it violated this compact. Jefferson made the argument most forcefully in the more detailed Kentucky Resolutions: the Constitution did not give Congress either the right to punish the array of crimes laid out in the Sedition Acts or the right to limit the free speech provisions of the states. Furthermore, Jefferson argued that the Constitution did not give Congress power over aliens friendly to the United States and that foreigners therefore retained the protection of the states in which they resided.

The Kentucky and Virginia Resolutions also called on other states to take action. In the Virginia Resolutions, Madison implored other states to "interpose" to protect their Tenth Amendment rights. In the original version of the Kentucky Resolutions, Jefferson urged other states to nullify unconstitutional laws. John Breckenridge, who sponsored the resolutions on behalf of Jefferson, removed references to nullification and replaced them with a request that other states push Congress to repeal the Alien and Sedition Acts. Jefferson's nullification argument, however, was included in a separate resolution that the Kentucky legislature passed in 1799. Some historians have argued that Virginia's call to action included plans for military preparation in the event of further Federalist provocations.

Other states responded to the Kentucky and Virginia Resolutions with either silence or hostility. The southern states, although dominated by Democratic Republicans, made no comment. The states north of the Potomac River condemned the resolutions largely for the states' rights interpretation of the Constitution. Most northern state legislatures passed resolutions asserting that individual states did not have the right to declare federal laws unconstitutional.

In 1801, President Jefferson allowed the Alien and Sedition laws to expire without resolution of the fundamental issues they raised. Americans later faced the same dilemma of protecting national security while upholding civil liberties in other conflicts, including the war against international terrorism.

bibliography

Gutzman, K. R. Constantine. "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country.'" Journal of Southern History 66, no. 3 (2000): 473–496.

Koch, Adrienne and Ammon, Harry. "The Virginia and Kentucky Resolutions: An Episode in the Jefferson's and Madison's Defense of Civil Liberties." William and Mary Quarterly 5, no. 2 (1948): 145–176.

Sharp, James Roger. American Politics in the Early Republic: The New Nation in Crisis. New Haven: Yale University Press, 1993.

Smith, James Morton. "The Grass Roots of the Kentucky Resolutions." William and Mary Quarterly 27, no. 2 (1970): 221–245.

Terry Bouton

See also:Alien and Sedition Acts; Quasi-War and the Rise of Political Parties.