Virginia and Kentucky Resolutions (1798–1799)
VIRGINIA AND KENTUCKY RESOLUTIONS (1798–1799)
These resolutions declared the alien and sedition acts unconstitutional and sought to arouse political opposition by appealing to the legislatures of the several states. The strategy was devised by thomas jefferson, the Vice-President, who secretly drafted the resolutions that were adopted by the Kentucky legislature. A similar but milder series was drafted by james madison for the Virginia assembly. Both set forth the compact theory of the Constitution, holding that the general government was one of strictly delegated powers; that acts beyond its powers were void; and that, there being no ultimate arbiter of the Constitution, each state had "an equal right to judge for itself, as well of infractions as of the mode and measure of redress." (See theories of the union.) Jefferson baptized the theory " nullification, " though the name was omitted by Kentucky; and Virginia spoke instead of the right of each state to "interpose" to arrest the evil.
Five of the nine Kentucky Resolutions were devoted to proving the unconstitutionality of the Alien and Sedition Laws. The Alien Law was attacked for want of power, for violation of a specific constitutional provision (Article I, section 9), and for denial of trial by jury and other fair procedures. The Sedition Act was asserted to be outside the scope of the Constitution as well as a direct violation of the first amendment. The resolutions offered no broadly philosophical plea for freedom of speech and press but met the threat of the Sedition Law at its most vulnerable point, as an invasion of rights reserved to the states. It belonged to each state, not the general government, to determine "how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom." Kentucky urged the other state legislatures to concur in declaring the acts unconstitutional and void.
Replies to the resolutions, mostly from Northern legislatures under Federalist control, were uniformly unfavorable. Prodded by Jefferson, Kentucky adopted a second set of resolutions in November 1799, reaffirming the principles of the first and, incidentally, introducing the word "nullification." In January 1800 the Virginia assembly adopted Madison's Report, a masterly exposition of the dual sovereignty theory of the federal union and a powerful defense of civil liberties.
The principal object of the resolutions was to secure the freedom of opposition, of debate, and of change through the political process. This object was secured by the Republican victory in the election of 1800. But in pursuing "a political resistance for political effect," in Jefferson's words, he and his associates were somewhat careless on points of constitutional theory. Whether the resolutions were meant as a declaration of opinion or as a "nullification" of federal law, whether the right claimed for the state was limited to "usurpations" of the compact or extended to "abuses" as well, whether the ultimate recourse was the natural right of revolution or a constitutional right of secession, these points were left unclear. It mattered little in 1800, after the resolutions had done their work and then were forgotten; but it mattered a great deal a generation later when the "Resolutions of '98" were revived and tortured by john c. calhoun into a defense, not of liberty, but of slavery.
Merrill D. Peterson
Koch, Adrienne and Ammon, Harry 1948 The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties. William and Mary Quarterly (3rd. ser.) 5:145–176.
Malone, Dumas 1962 Jefferson and the Ordeal of Liberty. Boston: Little, Brown.