In response to the hated Alien and Sedition Acts, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions of 1798, sometimes referred to as the “Principles of ‘98.” But the principles behind them were nothing new – they were part of a long-standing tradition that grew throughout the American Revolution.
The four laws making up the Alien and Sedition Acts clearly violated the Constitution. For instance, the Sedition Act criminalized criticism of the president and Congress contrary to the clear language of the First Amendment.
Madison and Jefferson approached the issue in slightly different ways, but both affirmed the power of the states to resist these unconstitutional federal acts.
Madison wrote that the powers of the federal government are “limited by the plain sense and intention of the instrument constituting the compact” and “no further valid than they are authorized by the grants enumerated in that compact.”
And he said the states were obligated to step in when the federal government oversteps its bounds.
“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.” [Emphasis added]
In the Kentucky Resolutions, Jefferson argued “whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force,” and that “as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
Void
Notice Jefferson emphatically asserted that when the government acts outside of its delegated powers the action is “void.”
When used as a noun, Thomas Sheridan’s “Complete Dictionary of the English Language,” published in 1789, defines “void” as, “Empty, vacant; vain ineffectual, null; unsupplied, unoccupied; wanting, unfurnished, empty, unsubstantial, unreal.” As a verb, it is defined as, “To quit, to leave empty; to vacate; to nullify, to annul.”
The principles Jefferson drew upon predate the drafting and ratification of the Constitution. The American colonists developed this idea in the early days of their resistance to British power, and its currents ultimately ran all the way through the ratification of the Constitution.
In his 1761 speech against writs of assistance, James Otis said, “An act against the constitution is void.”
Declaring something “void” is one thing. Making it so in practice is something else altogether.
You can’t just scream, “That is void!” and hope the government will stop. And you can’t wave the Constitution around like a red sheet at a bull and expect the government to suddenly cease and desist.
Words on paper don’t enforce themselves. And as we’ll see later, they were never expected to, either.
There has to be some mechanism to shut down a government action when the people and government disagree about whether an act is void. And this disagreement is going to happen in virtually every case. The government always thinks its actions are justified. After all, the government passed the questionable act into law to begin with.
James Iredell understood this tendency and warned, “This is the foundation on which persecution has been raised in every part of the world. The people in power are always right, and every body else wrong.”
American colonists declared the British Stamp Act void. They then mounted fierce resistance, refused to comply with the act, and effectively nullified it in practice and effect.
In March of 1764, Parliament expressed its intention to impose a direct tax on the colonies by requiring that important documents be printed on “stamped” paper. The act quickly flamed widespread opposition in the colonies.
By 1765, the standard American position held that the Stamp Act violated the bounds of the British constitutional system. Objecting to the notion that Parliament was supreme, and could impose whatever binding legislation it wished, the colonies instead adopted the rigid stance that colonists could only be taxed by their local assemblies. This idea, they said, stretched all the way back to 1215 and the Magna Carta.
News of the proposed taxes reached Virginia in the spring of 1765. Led by Patrick Henry, the House of Burgesses adopted a series of resolutions a few weeks later. These were known as the Virginia Resolves.
Henry drafted seven resolutions. Five were adopted, although the House of Burgesses repealed one after Henry left. Nevertheless, drafts of all seven resolutions circulated widely throughout all 13 colonies and sparked resistance to the Stamp Act.
Some of the language in the resolutions foreshadowed the Kentucky and Virginia Resolutions of 1798. And with a young Thomas Jefferson in the audience, it’s likely he was influenced by them as well.
For instance, in the fifth resolution, the assembly asserted their rights under the British constitution, insisting, “the General Assembly of this Colony have the only and exclusive Right and Power to lay Taxes and Impositions upon the inhabitants of this Colony and that every Attempt to vest such Power in any person or persons whatsoever other than the General Assembly aforesaid has a manifest Tendency to destroy British as well as American Freedom.”
In other words, the power of taxation, as well as government power over most things of a local concern, were reserved to Virginia, with the far away Parliament only legitimately exercising certain limited powers.
The sixth and seventh resolutions asserted that the colonists were not required to follow any illegitimate “law.” Henry wrote the inhabitants of the colony were “not bound to yield obedience to any law or ordinance whatsoever designed to impose any taxation whatsoever upon them, other than the laws and ordinances of the general assembly aforesaid.” [Emphasis added]
In other words, the Stamp Act was a violation of the British constitution, and thus, “void.”
Like the Kentucky and Virginia Resolutions, the Virginia Resolves didn’t outline any specific actions colonists should take, but they provided a needed spark that ignited the entire patriot campaign against the Stamp Act throughout the colonies.
Other colonies also adopted resolutions. Pennsylvania’s assembly asserted that it was “the inherent Birthright and indubitable Privilege of every British Subject to be taxed only by his own Consent or that of his legal Representatives.” A similar resolution in Massachusetts claimed that restricting taxation to local assemblies only was “one of the main pillars of the British constitution.”
Many prominent founding-era figures also wrote forcefully against the Stamp Act. John Dickinson, known as the “Penman of the Revolution,” urged colonists to refuse to cooperate with the act, warning, “If you comply with the Act by using Stamped Papers, you fix, you rivet perpetual Chains upon your unhappy Country. You unnecessarily, voluntarily establish the detestable Precedent, which those who have forged your Fetters ardently wish for, to varnish the future Exercise of this new claimed Authority.”
And in his argument against the Stamp Act, John Adams declared that it was “utterly void, and of no Binding force upon Us.”
“For it is against our Rights as Men, and our Priviledges as Englishmen. An Act made in Defiance of the first Principles of Justice: an Act which rips up the foundation of the British Constitution, and makes void Maxims of 1800 years standing.”
Just weeks before the act went into effect, John Hancock wrote a defiant letter to his London agent Johnathan Bernard, insisting, “The people of this country will never suffer themselves to be made slaves of by a submission to the damned act.”
Hancock was right. Opposition to the Stamp Act didn’t end with fiery rhetoric. Colonists took direct action to resist it as well.
For instance, in Massachusetts, Samuel Adams and the “Loyal Nine” led a large group of patriots and merchants aligned against Andrew Oliver, the British agent responsible for enforcing the stamp tax in the colony. A massive gathering of people hung Oliver in effigy from a liberty tree.
“Liberty, property, and no stamps!” became their rallying cry.
The protestors even conducted a mock funeral procession, where they took the “corpse” to the top of a hill, stamped it, and burned it in a bonfire. The next day, a group of patriots convinced Oliver to resign from his post and vowed to do the same for any replacement officer sent to enforce the Stamp Act.
Similar tactics were utilized by most of the other colonies. Hostile groups seized stamped paper, pressured officers to delay the law’s enforcement, and drove the stamp distributors out of commission.
The campaign proved effective. Parliament ultimately repealed the unenforceable Stamp Act in March 1766. But the repeal didn’t end the conflict between the colonists and the mother country. At the same time, the king gave royal assent to the Declaratory Act, maintaining that British colonies were absolutely subordinate to the Parliament by claiming the power to bind them “in all cases whatsoever.”
The seeds of noncompliance planted during the Stamp Act resistance continued to grow as tensions between the colonists and the British government intensified. As this constitutional struggle continued, the colonists maintained a spirit of resistance and a refusal to submit to what they viewed as an illegitimate, unconstitutional authority.
We find the First Continental Congress using language similar to the Stamp Act resolutions in its 1774 Declaration and Resolves. After listing various actions they deemed unconstitutional and unjust, the Continental Congress declared, “To these grievous acts and measures Americans cannot submit.”
Colonial resistance to the Stamp Act demonstrates an important truth – constitutional barriers aren’t enough to protect liberty. They must be backed up and enforced by concrete action. As Thomas Jefferson wrote in A Summary View of the Rights of British America in 1774:
“A free people [claim] their rights, as derived from the laws of nature, and not as the gift of their chief magistrate.”
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