“A nullification of the act is the rightful remedy.”
That’s how Thomas Jefferson put it in his draft Resolutions against the Alien and Sedition Acts.
On November 10, 1798, the Kentucky house passed resolutions based on his principles. They not only reaffirmed the Constitution’s structure – a strict line between delegated and reserved powers – but they also laid out how to defend it against violations of the constitution by the federal government.
During the summer of that year, Congress passed, and President John Adams signed as law, four acts together known as the Alien and Sedition Acts. With winds of war blowing across the Atlantic, the Federalist Party majority wrote the laws to prevent what they called “seditious” acts from increasing opposition to U.S. foreign and domestic policy.
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 and freedom of the press.
In a May 13 letter to Thomas Jefferson, James Madison recognized how fear was being used as a tool to expand federal power:
“Perhaps it is a universal truth that the loss of liberty at home is to be charged to provisions agst. danger real or pretended from abroad.”
Jefferson, in a June 7 letter to James Madison, lamented the direct attacks on the Constitution – including the 1st Amendment – he saw from the pending legislation:
“They have brought into the lower house a sedition bill, which among other enormities, undertakes to make printing certain matters criminal, tho’ one of the amendments to the constitution has so expressly taken religion, printing presses &c. out of their coercion. Indeed this bill and the Alien bill both are so palpably in the teeth of the constitution as to shew they mean to pay no respect to it.”
Despite fierce opposition from Jefferson, Madison and the rest of the Democratic-Republican party, the four laws were passed and signed by Pres. John Adams between June 18 and July 14th, 1798.
The most hated was likely the Sedition Act, which made it a federal crime to, in essence, say or print anything that tended to bring the federal government into “disrepute” – a direct attack on the limitation of power under the Constitution and 10th Amendment, reiterated by the 1st Amendment. It read, in part:
“if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute”
Notably absent from the legislation was any prohibition on bringing the vice-president into disrepute. That, of course, was Thomas Jefferson, leader of the opposition party to Adams and the Federalists.
The Alien and Sedition Acts outraged many people, with opposition in places like Kentucuky being the most intense. Several counties in the Commonwealth adopted resolutions condemning the acts, including Fayette, Clark, Bourbon, Madison and Woodford.
A Madison County militia issued an ominous resolution of its own, stating, “The Alien and Sedition Bills are an infringement of the Constitution and of natural rights, and that we cannot approve or submit to them.”
This language was similar to that used throughout the height of the American Revolution. Famously, for example, in the Declaration and Resolves of the First Continental Congress, which not only published a list of British Acts deemed unconstitutional, but closed that list with, “To these grievous measures, Americans cannot submit.”
The Adams administration didn’t waste time with enforcement, and immediately started going after free speech and only the opposition party press, indicting and convicting writers and newspaper publishers critical of the administration. Federalist-backed papers continued to vehemently attack Jefferson, without any move by the federal government to do any enforcement actions.
They even convicted a sitting congressman under the Sedition Act, which Jefferson discussed in a letter to Madison:
“Yesterday’s papers bring us an account of Lyon of Vermont being indicted before Judge Paterson under the Sedition act. Possibly your papers may not mention the issue. He was found guilty, fined 1000. D. and adjudged to 4. months imprisonment.”
Understanding what Lyon was convicted for shows the kind of utter contempt the administration had for the limits of the constitution. Lyon, in a public letter, had accused Pres. Adams of, among other things, “an unbounded thirst for ridiculous pomp, foolish adulation, and selfish avarice.”
In what turned out to be an incredible story, Lyon was re-elected to Congress – while in prison – and he won by a landslide.
In the meantime, Thomas Jefferson secretly drafted Resolutions in response to the federal acts. Jefferson began by explaining the exact nature of the relationship between the new federal, or general government and the states which predated it – and created it.
“Resolved that the several states composing the US. of America are not united on the principle of unlimited submission to their general government; but that by a compact under the style and title of a Constitution for the US. and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government”
Jefferson continued, citing the widely held principle from the American revolution that any act beyond the limits of the constitution – is void.
“Whensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void, & of no force.”
Going further, Jefferson warned against relying on the agent of the people of the several states – the federal government – to determine the extent of its own powers under the Constitution.
“the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made it’s discretion, & not the constitution, the measure of it’s powers”
From there, Jefferson emphasized the role and duty of the states to keep the federal government in check. Without that, they’d be under a system of unlimited power.
“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 foederis] 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”
Jefferson sent former Virginia ratifying convention delegate Wilson Cary Nicholas his draft of the resolutions, hoping the state legislator could get them introduced in Virginia. In October 1798, Wilson indicated that representative John Breckinridge was willing to introduce the resolutions in Kentucky:
“I have taken the liberty to put into the hands of Mr. John Breckinridge a copy of the resolutions that you sent me, he says he is confident that the legislature of Kentucky (of which he is a member) will adopt them. he was very anxious to pay his respects to you but we both thought it was best that he shou’d not see you, as we believed if he did the resolutions wou’d be attributed to you.”
Jefferson agreed with the choice, despite initially favoring a different strategy:
“I entirely approve of the confidence you have reposed in mr Brackenridge, as he possesses mine entirely. I had imagined it better those resolutions should have originated with N. Carolina. but perhaps the late changes in their representation may indicate some doubt whether they would have passed. in that case it is better they should come from Kentuckey.”
On Nov. 7, Gov. James Garrard addressed the Kentucky state legislature, noting the vehement opposition to the Alien and Sedition Acts. He said Kentucky was, “if not in a state of insurrection, yet utterly disaffected to the federal government.” He urged the legislature to reaffirm its support for the Constitution of the United States while “entering your protest against all unconstitutional laws and impolitic proceedings.”
The following day, Breckenridge introduced an amended version of Jefferson’s draft resolution.
Most notably, Breckinridge omitted the word “nullification” from the final version considered by the Kentucky legislature, seeking to moderate the tone of the resolution.
Removal of the nullification reference apparently didn’t bother Jefferson, and in fact, did little to change the fundamental principles behind the resolution. By declaring the Alien and Sedition Acts unconstitutional, “void and of no force,” the Kentucky legislature voted on a nullification resolution, even with the actual word omitted.
However, in a speech during debates over the resolutions, Breckenridge made clear that this was a first step, and that it was the right and duty of the state to nullify the act should the federal government refuse to relent.
Breckinridge said his hope was that upon the representations of the state legislatures, Congress would “expunge the unconstitutional proceedings from the annals of the United States.” But he went on to say that if Congress attempted to enforce the Alien and Sedition Acts that it was “the right and the duty of the several states to nullify those acts and to protect their citizens from their operation.”
Jefferson based his entire argument on the 10th Amendment – the fact that the federal government was exercising powers not delegated to it in the constitution:
“it being true as a general principle, and one of the amendments to the Constitution having also declared, “‘that the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people’”
He continued, referring to the Sedition Act as “are altogether void, and of no force” because the power “to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.”
Jefferson also made clear that beyond the “general principle” of the constitution creating a general government of only delegated powers, and the addition of the 10th Amendment to expressly clarify this implied structure of the system, that another amendment was added to hammer this home.
“in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamations, equally with heresy and false religion, are withheld from the cognizance of federal tribunals”
Jefferson was so meticulous in his analysis of the federal acts that in the margins of his draft, he actually changed the word “law” to “act” multiple times, because only acts in pursuance of the Constitution rise to the level of legitimate “law.”
As was often repeated throughout the revolution, Jefferson lamented that allowing government to continue with a usurpation of power – a violation of the Constitution – would establish a precedent for them to do more and more of the same in the future.
“if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes & punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them”
Jefferson concluded with a warning that this would be “a power assumed to bind the states (not merely in cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and to live under one deriving its powers from its own will, and not from our authority”
The resolutions passed the House on Nov. 10 with only three dissenting votes. The Senate unanimously concurred three days later, and Gov. Garrard signed the resolution on Nov. 16.
They didn’t end the Alien and Sedition Acts, but they laid a philosophical foundation to resist them through further state action. The following day, Jefferson urged as much in a letter to Madison:
“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.”
From the foundational structure of the constitution, to how it needs to be defended, plus strategic advice on how to get there – Thomas Jefferson’s Kentucky Resolutions of 1798 are one of the most important documents he ever wrote.
That’s likely why we never really hear much of them, if anything at all, in the government-run school system.
That’s why we work so hard every single day to reach and teach more and more people about these essential foundational principles. And nothing helps us get that job done more than the financial faith and support of our members.
Thank you for reading and your support!
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