EDITOR’S NOTE: The following is an excerpt from the newly-released ebook, The Jefferson Letters, Vol. 1: The Kentucky and Virginia Resolutions. Available as a free download for all TAC members. Get it here.
In 1798, Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, formally detailing the principles of nullification for the first time. Standing alone, the resolutions make a strong case for nullification. But they don’t reveal the whole story.
The resolutions were actually just a first step in the strategy Madison and Jefferson developed for dealing with the unconstitutional Alien and Sedition Acts. Correspondence between the two men, and other players involved in the fight to block this early example of federal overreach, provide a much clearer picture of what they were trying to accomplish in the long run.
During the summer of 1798, Congress passed four laws together known as the Alien and Sedition Acts. These laws violated several constitutional provisions and represented a gross federal usurpation of power.
The first three laws dealt with the treatment of resident aliens. TheAlien Friends Act gave the president sweeping power to deport “dangerous” aliens, in effect elevating the president to the role of judge, jury and “executioner.” The Alien Enemies Act allowed for the arrest, imprisonment and deportation of any male citizen of a nation at war with the U.S., even without any evidence that the individual was an actual threat. These laws unconstitutionally vested judicial powers in the executive branch and denied the accused due process.
The most insidious of the laws was the Sedition Act. It essentially criminalized criticism of the federal government, a blatant violation of the First Amendment.
Recognizing the Alien and Sedition Acts represented a serious threat to the constitutional system, and with few options for addressing the overreach due to Federalist Party control of the federal government, Jefferson and Madison turned to the states.
Jefferson secretly drafted the Kentucky Resolutions, and the Kentucky legislature passed a revised version on Nov. 10, 1798. Asserting that “the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government,” Jefferson proclaimed that nullification was the proper way to deal with unconstitutional acts.
“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”
On Dec. 24, 1798, the Virginia Senate passed resolutions penned by Madison, asserting not only the right, but the duty, for states to step in and stop unconstitutional actions.
“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.”
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 for nullification and set the stage for further action in the future.
As Jefferson and Madison strategized on how to address the Alien and Sedition Acts, they corresponded by mail, discussing their ideas. Ten key letters give further insight into their strategy. Their correspondence reveals that the resolutions were merely intended to serve as a starting point, setting the stage for additional, more aggressive steps to stop the federal overreach.
Wilson Cary Nicholas was also involved in the effort. He was an important figure in the Virginia ratifying convention that approved the Constitution, and at the time the Alien and Sedition Acts passed, he served as a member of the Virginia House of Delegates. He was a close and trusted friend of Jefferson, and delivered Jefferson’s draft of the Kentucky Resolutions to John Breckinridge, who eventually introduced them in the Kentucky House.
Following, you will find the ten letters between these three men reprinted in their entirety. Some of the letters also address other issues. In those cases, the relevant passages have been bolded.