By December 1798, the United States was in a full-blown constitutional crisis, and James Madison and Thomas Jefferson were stealthily leading the fight to push the federal government back within its prescribed limits.
During the summer of that year, Congress passed four acts together known as the Alien and Sedition Acts. President Adams signed each of these acts into law. With winds of war blowing across the Atlantic, the Federalist Party majority wrote these laws to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear of the French to stir up support for these draconian laws, expanding federal power, concentrating authority in the executive branch and severely restricting freedom of speech.
Two of the Alien Acts gave the president the power to declare any foreign U.S. residents enemies, lock them up and deport them. These acts vested judicial authority in the executive branch and obliterated due process. The Sedition Act essentially outlawed criticizing the federal government – a clear violation of the First Amendment.
Throughout the fall of 1798, the federal government prosecuted several prominent newspaper publishers for violations of the Sedition Act. They literally arrested and jailed people for opposing the government.The feds even prosecuted and jailed Matthew Lyon, a sitting U.S. congressman from Vermont.
In November, the Kentucky legislature passed the Kentucky Resolutions of 1798, secretly penned by Jefferson. The resolutions declared the Alien and Sedition Acts unconstitutional, and therefore “void and of no force.” In the original draft of the resolutions, Jefferson declared, “Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.”
The Kentucky Resolutions were the first salvo in a two-pronged attack planned by Madison and Jefferson. A week after the resolutions passed in Kentucky, Jefferson sent Madison a copy, along with a letter urging him to press forward.
I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.
Madison did just that, drafting his own resolutions for introduction in the Virginia legislature. The Virginia Resolutions declared the Alien and Sedition Acts “unconstitutional.” Madison also asserted that the states had an obligation to act against egregious federal exercises of undelegated power.
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 the compact; as no further valid that 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.
Madison gave his draft of the Virginia Resolutions to Wilson Cary Nicholas, who showed them to Jefferson. In a letter dated November 29, 1798, Jefferson recommended adding more emphatic language in declaring the Alien and Sedition Acts unconstitutional.
The more I have reflected on the phrase in the paper you shewed me, the more strongly I think it should be altered. suppose you were to instead of the invitation to cooperate in the annulment of the acts, to make it an invitation: ‘to concur with this commonwealth in declaring, as it does hereby declare, that the said acts are, and were ab initio—null, void and of no force, or effect’ I should like it better. health happiness & Adieu.
Nicholas added words declaring that the Alien and Sedition Act we unconstitutional “not law, but utterly null, void and of no force or effect.”
John Taylor of Caroline introduced Madison’s resolutions with Nicholas’ addition on Dec. 10, 1798. He described the resolutions, “as a rejection of the false choice between timidity and civil war.” Taylor argued that state nullification provided an alternative to popular nullification – in other words outright armed rebellion. In legislative debates, he argued that “the will of the people was better expressed through organized bodies dependent on that will, than by tumultuous meetings; that thus the preservation of peace and good order would be more secure.”
In the course of the debate, Jefferson’s suggested wording was removed. During the period following passage of the Alien and Sedition Acts, there was talk of outright revolution. Both the Kentucky and Virginia legislatures went to great pains to ensure they were striking a balance between a hard line and moderation. They wanted to make their point, but they did not want to spark violence.
Removing Jefferson’s wording did not change the substance of the resolutions. In fact, declaring a law “unconstitutional” was essentially the same as calling it “null, void and of no effect.” Alexander Hamilton inferred this distinction during the New York ratification debate.
“The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.”
The Virginia House of Delegates passed the resolutions on Dec. 21, 1798, by a vote of 100 to 63. The Senate followed suit on Dec. 24, by a 14 to 3 margin.
Taken together, the Kentucky and Virginia Resolutions lay out the principles of nullification. But they did not actually nullify the Alien and Sedition Acts. These non-binding resolutions merely made the case and set the stage for further action.
Correspondence between Jefferson and Madison indicate they didn’t plan to stop with the resolutions. They hoped to use them as a springboard for state action against the unconstitutional Alien and Sedition Acts.
The Kentucky and Virginia Resolutions weren’t all that well received, particularly by states in the northeast. This is unsurprising because these states were controlled by the Federalist Party. Several, including Massachusetts, passed resolutions of their own condemning the rhetoric of Kentucky and Virginia.
Jefferson asserted in a letter to Madison dated Aug. 23, 1799, that the opposition should not remain unanswered.
“I will in the mean time give you my ideas to reflect on. that the principles already advanced by Virginia & Kentuckey are not to be yielded in silence, I presume we all agree.”
He then went on to specify three steps.
(1) “…answer the reasonings of such of the states as have ventured into the field of reason, & that of the Commee of Congress. here they have given us all the advantage we could wish. take some notice of those states who have either not answered at all, or answered without reasoning. (2) make a firm protestation against the principle & the precedent; and a reservation of the rights resulting to us from these palpable violations of the constitutional compact by the Federal government, and the approbation or acquiescence of the several co-states; so that we may hereafter do, what we might now rightfully do, whenever repetitions of these and other violations shall make it evident that the Federal government, disregarding the limitations of the federal compact, mean to exercise powers over us to which we have never assented. (3) express in affectionate & conciliatory language our warm attachment to union with our sister-states, and to the instrument & principles by which we are united; that we are willing to sacrifice to this every thing except those rights of self government the securing of which was the object of that compact; that not at all disposed to make every measure of error or wrong a cause of scission, we are willing to view with indulgence to wait with patience till those passions & delusions shall have passed over which the federal government have artfully & successfully excited to cover it’s own abuses & to conceal it’s designs; fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact…” [numbering added]
Madison took Jefferson’s advice and penned a lengthy defense of the Virginia Resolutions known as the Virginia Report of 1800. (Sometimes called the Virginia Report of 1799.) Madison fleshed out the Virginia Resolutions at length and answered the opposition’s arguments point by point. Most notably, he asserted the people of the states have the final authority to determine the constitutionality of an act.
“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
While the Kentucky and Virginia Resolutions did not actually nullify the Alien and Sedition Act, they form the philosophical foundation nullification actions rest upon. Ultimately, it remains up to states to take action in the ways they see fit to stop the exercise of unconstitutional federal power – or as Madison eloquently put it “interpose for arresting the progress of the evil.”