In its exploration of the Kentucky and Virginia Resolutions of 1798, the Bill of Rights Institute gets several things right. But it clearly intends its students draw a conclusion that misses the mark.

The Bill of Rights Institute describes itself as an organization that “develops instructional materials and educational programs that engage students and teachers with America’s Founding documents and principles.”

I have to give the organization credit. It at least includes the Kentucky and Virginia Resolutions among America’s founding documents. It seems most organizations of this nature would prefer to shove the resolutions down an Orwellian memory hole. Unfortunately, the Bill of Rights Institute does a poor job of accurately explaining the Principles of ’98 that James Madison and Thomas Jefferson laid out in those resolutions. The article was clearly intended to subtly discredit the doctrine of nullification.

I say subtle because the Bill of Rights Institute doesn’t come right out and say “nullification is an illegitimate action.” Instead, the writer of the article relies on insinuation, intentionally leading the reader to that conclusion. The article first downplays the message of the Virginia Resolutions, and then uses Madison to diminish Jefferson’s assertions in the Kentucky Resolutions.

The institute starts out its explanation of the resolutions on the right track, pointing out that they “argued that the federal government had no authority to exercise power not specifically delegated to it in the Constitution.”

That was indeed a central point in both the Kentucky and Virginia Resolutions – the foundation both Madison and Jefferson built on. But there was much more to the principles they articulated. They weren’t simply pointing out the obvious. Nobody questioned the idea that the federal government operated under limits. The real question was: what do we do when it operates outside of its delegated powers. Both Jefferson and Madison asserted that it was up to states to act.

At this point, we find the Bill of Rights Institute slipping off the rails. The writer claims that Madison’s main hope in drafting the Virginia Resolutions was “that other states would register their opposition to the Alien and Sedition Acts as beyond the powers given to Congress.”

But Madison was proposing a far more powerful response.

In case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact [the Constitution], 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.

Later Madison wrote, that the he not only hoped the other states would “concur with this commonwealth” in declaring the Alien and Sedition Acts unconstitutional, but that they would also “take necessary and proper measures” to protect the rights, liberties and authorities reserved to the states and the people.

The Bill of Rights Institute makes it sounds like he was just trying to get other states to agree the federal government went too far, that he was simply hoping to organize some kind of formal protest. But Madison was clearly making the case that states should take concrete action to stop federal overreach. The Virginia Resolutions don’t specify the exact nature of that action, or define what constitutes “interposition,” but they clearly set the stage for more than merely “registering opposition” to unconstitutional acts. Why bother to pass a resolution to do that?

When the Bill of Rights Institute turns its attention to Jefferson’s Kentucky Resolutions, it does a much better job of explaining the core message – that states have the power to nullify unconstitutional laws. But the article asserts that Jefferson “went further than Madison’s Virginia Resolution.”

He really didn’t.

Jefferson used different terminology than Madison, and the two men differed on at what point states should act, but nullification does not “go further” than interposition. They may represent two different approaches, but both the Virginia and Kentucky Resolutions clearly call for aggressive state action to stop the federal government from exercising undelegated powers.

In this conviction, Madison and Jefferson were of one mind, and correspondence between the two men in the years following the passage of the resolutions bears this out. The resolutions and the Principles of 98’ they lay out were merely a starting point.

In the final paragraph of its article, the Bill of Rights Institute attempts to deliver a coup de grace to the principles of nullification by asserting that James Madison rejected Jefferson’s “more extreme” position.

The ideas in the Virginia and Kentucky Resolutions became a precursor to John C. Calhoun’s arguments about the power of states to nullify federal laws. However, during the nullification controversy of the 1830s, Madison rejected the legitimacy of nullification, and argued that it was not part of the Virginia position in 1798.

This parrots an oft repeated and gross misrepresentation of Madison’s position in the 1830s. In his Notes on Nullification, and other writings of the period, Madison was not rejecting the principle of nullification, but what would be more accurately described as Calhounianism.

South Carolina Sen. John C. Calhoun did indeed develop a nullification scheme based on the Kentucky and Virginia Resolutions. He claimed that a state has the authority to veto – or nullify – an act of the federal government, subject to approval by ¾ of the states. The South Carolina Calhounian version of nullification held that the single state’s action legally bound the rest of the country and annulled – or made legally inoperative – the federal act within that state.

Of course, we find no such mechanism in the Constitution, and Madison rightly argued that this idea was absurd.

“But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined. [Emphasis added]”

Madison emphatically rejected Calhounianism.

But contrary to what the Bill of Rights Institute would have you believe, he affirmed the basic principles of nullification in his Notes.

“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.” [Emphasis added]

At best, the Bill of Rights Institute stands guilty of grossly oversimplifying the message of the Kentucky and Virginia Resolutions. At worse, it intentionally attempts to lead its students to believe nullification stands as an illegitimate action in the face of unconstitutional federal overreach.

Either way, it badly misses the mark.

Editors note: Michael Maharrey digs more deeply into Madison’s position on nullification in the 1830s in his handbook Smashing Myths: Understanding Madison’s Notes on Nullification.

Mike Maharrey

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