The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799 in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional. The resolutions argued that the states had the right and the duty to declare unconstitutional those acts of Congress that the Constitution did not authorize. In doing so, they argued for states' rights and strict construction of the Constitution. The Kentucky and Virginia Resolutions of 1798 were written secretly by Vice President Thomas Jefferson and James Madison, respectively.
The principles stated in the resolutions became known as the "Principles of '98". Adherents argued that the states could judge the constitutionality of federal government laws and decrees. The Kentucky Resolutions of 1798 argued that each individual state has the power to declare that federal laws are unconstitutional and void. The Kentucky Resolution of 1799 added that when the states determine that a law is unconstitutional, nullification by the states is the proper remedy. The Virginia Resolutions of 1798 refer to "interposition" to express the idea that the states have a right to "interpose" to prevent harm caused by unconstitutional laws. The Virginia Resolutions contemplated joint action by the states.
The Resolutions were produced primarily as campaign material for the 1800 United States presidential election and had been controversial since their passage, eliciting disapproval from ten state legislatures. Ron Chernow assessed the theoretical damage of the resolutions as "deep and lasting ... a recipe for disunion".Chernow, Ron. "Alexander Hamilton". 2004. p587. Penguin Press. George Washington was so appalled by them that he told Patrick Henry that if "systematically and pertinaciously pursued", they would "dissolve the union or produce coercion". Their influence reverberated right up to the Civil War and beyond.Knott. "Alexander Hamilton and the Persistence of Myth". p48 In the years leading up to the Nullification Crisis, the resolutions divided Jeffersonian democrats, with states' rights proponents such as John C. Calhoun supporting the Principles of '98 and President Andrew Jackson opposing them. Years later, the passage of the Fugitive Slave Act of 1850 led anti-slavery activists to quote the Resolutions to support their calls on Northern states to nullify what they considered unconstitutional enforcement of the law.See Unconstitutionality of the Fugitive Act, by Byron Paine (1854).
Provisions of the Resolutions The resolutions opposed the federal Alien and Sedition Acts, which extended the powers of the federal government. They argued that the Constitution was a "compact" or agreement among the states. Therefore, the federal government had no right to exercise powers not specifically delegated to it. If the federal government assumed such powers, its acts could be declared unconstitutional by the states. So, states could decide the constitutionality of laws passed by Congress. Kentucky's Resolution 1 stated:
That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, 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; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this 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 its discretion, and not the Constitution, the measure of its powers; but 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.
A key provision of the Kentucky Resolutions was Resolution 2, which denied Congress more than a few penal powers by arguing that Congress had no authority to punish crimes other than those specifically named in the Constitution. The Alien and Sedition Acts were asserted to be unconstitutional, and therefore void, because they dealt with crimes not mentioned in the Constitution:
That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and 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," therefore the act of Congress, passed on the 14th day of July, 1798, and intitled "An Act in addition to the act intitled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the—day of June, 1798, intitled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force whatsoever.
The Virginia Resolution of 1798 also relied on the compact theory and asserted that the states have the right to determine whether actions of the federal government exceed constitutional limits. The Virginia Resolution introduced the idea that the states may "interpose" when the federal government acts unconstitutionally, in their opinion:
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 that compact, as no further valid than 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.
History of the Resolutions There were two sets of Kentucky Resolutions. The Kentucky General Assembly passed the first resolution on November 16, 1798, and the second on December 3, 1799. Jefferson wrote the 1798 Resolutions. The author of the 1799 Resolutions is not known with certainty.See Powell, H. Jefferson, "The Principles of '98: An Essay in Historical Retrieval", 80 Virginia Law Review 689, 705 n.54 (1994). Both resolutions were stewarded by John Breckinridge who was falsely believed to have been their author.
James Madison wrote the Virginia Resolution. The Virginia General Assembly passed it on December 24, 1798.
The Kentucky Resolutions of 1798 stated that acts of the national government beyond the scope of its constitutional powers are "unauthoritative, void, and of no force". While Jefferson's draft of the 1798 Resolutions had claimed that each state has a right of "nullification" of unconstitutional laws,Jefferson's draft said: "where powers are assumed [by the federal government] 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." See Jefferson's draft of the Kentucky Resolutions of 1798. that language did not appear in the final form of those Resolutions. Rather than purporting to nullify the Alien and Sedition Acts, the 1798 Resolutions called on the other states to join Kentucky "in declaring these acts void and of no force" and "in requesting their repeal at the next session of Congress".
The Kentucky Resolutions of 1799 were written to respond to the states who had rejected the 1798 Resolutions. The 1799 Resolutions used the term "nullification", which had been deleted from Jefferson's draft of the 1798 Resolutions, resolving: "That the several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and, That a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy." The 1799 Resolutions did not assert that Kentucky would unilaterally refuse to enforce the Alien and Sedition Acts. Rather, the 1799 Resolutions declared that Kentucky "will bow to the laws of the Union" but would continue "to oppose in a constitutional manner" the Alien and Sedition Acts. The 1799 Resolutions concluded by stating that Kentucky was entering its "solemn protest" against those Acts.
The Virginia Resolution did not refer to "nullification", but instead used the idea of "interposition" by the states. The Resolution stated that when the national government acts beyond the scope of the Constitution, the states "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". The Virginia Resolution did not indicate what form this "interposition" might take or what effect it would have. The Virginia Resolutions appealed to the other states for agreement and cooperation.
Numerous scholars (including Koch and Ammon) have noted that Madison had the words "void, and of no force or effect" excised from the Virginia Resolutions before adoption. Madison later explained that he did this because an individual state does not have the right to declare a federal law null and void. Rather, Madison explained that "interposition" involved a collective action of the states, not a refusal by an individual state to enforce federal law, and that the deletion of the words "void, and of no force or effect" was intended to make clear that no individual state could nullify federal law.Madison, James, "Notes, On Nullification", Library of Congress, December 1834. See Powell, "The Principles of '98: An Essay in Historical Retrieval", 80 Virginia Law Review at 718 (the Virginia resolutions "did not in fact license any legally significant action by an individual state. The authority of the states over the Constitution and its interpretation was collective and could be exercised only in concert through the electoral process or by a quasi-revolutionary act of the people themselves").
The Kentucky Resolutions of 1799, while claiming the right of nullification, did not assert that individual states could exercise that right. Rather, nullification was described as an action to be taken by "the several states" who formed the Constitution. The Kentucky Resolutions thus ended up proposing joint action, as did the Virginia Resolution.See Powell, "The Principles of '98: An Essay in Historical Retrieval", 80 Virginia Law Review at 719-720 & n.123 ("when the Resolutions of 1799 declared that 'nullification' was 'the rightful remedy' for federal overreaching, the legislature carefully ascribed this remedy to the states collectively, thus equating its position with that of Madison and the Virginia Resolutions. ... The Resolutions implicitly conceded that the state's individual means of resisting the Acts were political in nature.").