Kentucky and Virginia Resolutions

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The Kentucky and Virginia Resolutions (or Resolves) were important political statements in favor of states' rights written secretly by Vice President Thomas Jefferson and James Madison (then in retirement) in 1798. They were passed by the two states in opposition to the federal Alien and Sedition Acts. Though often mentioned as a pair in modern historical discussions, they were actually two separate documents. The Kentucky Resolutions (plural) were written by Jefferson and passed by the state legislature on November 16, 1798, with one more being passed the following year on December 3rd, 1799. The Virginia Resolution was written by Madison and passed by the state legislature on December 24, 1798. Jefferson and Madison collaborated on the writing of the two documents, but their authorship was not known for many years. The resolutions attacked the Sedition Act, which extended the powers of the federal government over individuals inside the states. The resolutions declared that the Constitution was a "compact." That is, it was an agreement among the states. The federal government had no right to exercise powers not specifically delegated to it; should the federal government assume such powers, its acts under them would be void. Thus it was the right of the states to decide as to the constitutionality of such laws passed by Congress.

The resolutions were submitted to other states for approval but with no success. In New Hampshire, newspapers treated them as military threats and replied with sinister foreshadowings of civil war. "We think it highly probable that Virginia and Kentucky will be sadly disappointed in their infernal plan of exciting insurrections and tumults," proclaimed one. The other states legislature's unanimous reply was blunt:

Resolved that the Legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State against every aggression either foreign or domestic, and that they will support the Government of the United States in all measures warranted by the former. That the State Legislatures are not the proper tribunals to determine the Constitutionality of the laws of the General Government—that the duty of such decision is properly and exclusively confided to the Judicial department. ^[1]

At a more serious level, Alexander Hamilton, then building up the army, suggested sending it into Virginia, on some “obvious pretext.” Measures would be taken, he hinted an ally in Congress, “to act upon the laws & put Virginia to the Test of resistance.” ^[2]

The Resolutions joined the foundational beliefs of Jefferson's party and were used as party documents in the 1800 election. They became part of the heritage of the "Old Republicans." Their long-term importance lies not in their attack on the Sedition law, but rather in their strong statements of states' rights theory, which led to rather different concepts of nullification and interposition. Jefferson at one point drafted a threat for Virginia to secede, but dropped it from the text.

Although the New England states all immediately issued dissents in response to the resolutions, some of them soon found occasion to voice their assent to the principles of interposition and/or nullification. The state governments of Massachusetts, Connecticut, and Rhode Island all threatened to ignore the Embargo Act of 1807 based on the authority of states to stand up to laws deemed by those states to be unconstitutional (but they did not in fact try to nullify the laws). Rhode Island's justification for its position after the embargo was based on the explicit language of interposition.^[3] Within five years, Massachusetts and Connecticut again asserted the right of the states to their own test of constitutionality when they were instructed to send their own militia to defend the coast during the War of 1812. Another embargo passed in 1813 that hurt New England trade was questioned once again by Connecticut and Massachusetts; the supreme courts of both states issued their objections, including this statement from the Massachusetts General Court:

A power to regulate commerce is abused, when employed to destroy it; and a manifest and voluntary abuse of power sanctions the right of resistance, as much as a direct and palpable usurpation. The sovereignty reserved to the states, was reserved to protect the citizens from acts of violence by the United States, as well as for purposes of domestic regulation. We spurn the idea that the free, sovereign and independent State of Massachusetts is reduced to a mere municipal corporation, without power to protect its people, and to defend them from oppression, from whatever quarter it comes. Whenever the national compact is violated, and the citizens of this State are oppressed by cruel and unauthorized laws, this Legislature is bound to interpose its power, and wrest from the oppressor its victim.^[4]

Decades after the Resolutions were published, during the "nullification crisis" of 1828–1833, South Carolina threatened to nullify a federal law regarding tariffs. Andrew Jackson issued a resounding proclamation against the doctrine of nullification, stating: "I consider...the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." He also denied the right of secession: "The Constitution...forms a government not a league...To say that any State may at pleasure secede from the Union is to say that the United States is not a nation."^[5] Later, Abraham Lincoln also rejected the compact theory saying the Constitution was a binding contract among the states and no contract can be changed unilaterally by one party.

Historians have been divided on the importance of the resolutions. Some have been ambivalent because of their long-term impact. As Jefferson's biographer explains:

Called forth by oppressive legislation of the national government, notably the Alien and Sedition Laws, they represented a vigorous defense of the principles of freedom and self-government under the United States Constitution. But since the defense involved an appeal to principles of state rights, the resolutions struck a line of argument potentially as dangerous to the Union as were the odious laws to the freedom with which it was identified. One hysteria tended to produce another. A crisis of freedom threatened to become a crisis of Union. The latter was deferred in 1798-1800, but it would return, and when it did the principles Jefferson had invoked against the Alien and Sedition Laws would sustain delusions of state sovereignty fully as violent as the Federalist delusions he had combated. ^[6]

[edit] Notes

^ Counter-Resolutions of Other States
^ Feb. 2, 1799, Hamilton Papers vol 22 pp 452-53.
^ Thomas E. Woods, Jr.; "The States' Rights Tradition Nobody Knows", 2005
^ The General Court of Massachusetts on the Embargo, February 22, 1814
^ President Jackson's Proclamation Regarding Nullification
^ Merrill D. Peterson; Thomas Jefferson and the New Nation: A Biography 1975.

[edit] References

Elkins, Stanley and Eric McKitrick. The Age of Federalism (1995)
Koch, Adrienne. and Harry Ammon. "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," William and Mary, Quarterly April 1948, pp. 145-76. online at JSTOR
Koch, Jefferson and Madison: The Great Collaboration (1950), ch. 7.
Watkins, William. Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy (2004), an encomium of the resolutions.