The Kentucky and Virginia
Guideposts of Limited Government
WILLIAM J. WATKINS, JR.*
In 1885 Woodrow Wilson noted that criticism of the Constitution had
ceased upon its adoption and "an undiscriminating and almost blind worship of
its principles" had developed (Wilson 1885, 4). A survey of American political
discourse after the Constitution's ratification reveals that its provisions
were often quoted in such a manner as a minister would quote the Gospel.
Considering that the history of Anglo-American liberty is, in many respects, a
history of great charters and the events leading to their adoption, American
reverence for the Constitution is not surprising (see Brooks 1993). Of course,
the Constitution is not the only document in the pantheon. For most Americans
the Declaration of Independence is also a sacred document, and some scholars
place it above the Constitution (Jaffa 1994, 22-23). However, conspicuously
absent from the list of universally revered charters are Thomas Jefferson's and
James Madison's Kentucky and Virginia resolutions. For their lucid reasoning
and peerless prose, they merit inclusion as much as the Constitution itself.
Unfortunately, the Resolves of 1798, as they are also known, have been given
short shrift as the nation has become more consolidated. Though the
centralizers can twist the language of the Constitution to confer plenary
powers on the national government, the language of the Resolves cannot be so
manipulated. So Americans are kept in the dark about the principles of '98,
lest they be tempted to reclaim the decentralized republic of the
Hoary and forgotten by most, the Resolves mark the path to limited
government. Though much has changed since Jefferson and Madison penned the
Kentucky and Virginia resolutions, the nature of power remains the same —
power can be checked only by power. The Resolves point to the states as the
natural depository of the power to check the national government. Madison came
to that realization long before he wrote the Virginia resolution. In
Federalist 51, he described the horizonal and vertical checks and
balances established by the Constitution and plainly stated that the state and
national governments "will controul each other; at the same time each will be
controulled by itself (Madison, Hamilton, and Jay  1982, 264). If the
American people are once again to gain control of the national government, it
will be through the states. No new theories are needed; the intellectual giants
of the founding era have done the work for us.
Threat of French Invasion
As the year 1798 began, the prospect of war with France loomed. How the
"special relationship" between France and the United States had deteriorated
after the American Revolution is a complicated story. Hostilities between the
two former allies were probably likely insofar as the French had supported the
American Revolution not because of beliefs in self-determination or
republicanism but because of Louis XVI's desire to punish Great Britain for the
defeat of France in the Seven Years' War. Many Americans were thankful for
French aid in the Revolution, but others realized early on that although France
had helped the United States to break from George III, the French would never
acquiesce in its becoming a great nation (Ketcham 1963, 204-5). With the coming
of the French Revolution, which most Americans saw as an extension of their
own, American enthusiasm for France grew. Hindsight now shows that the two
revolutions had little in common, the American Revolution being an orderly
"lawyer's revolution" whereas the French version was, to paraphrase Simon
Schama, the incarnation of violence (1989, xv). Nonetheless, in the 1790s loyal
Americans were divided into pro-French and pro-British camps, with the former
led by Jefferson and Madison and the latter by Alexander Hamilton.
Hamilton and the Federalists, great admirers of Great Britain and its
constitution, had a vested interest in peace with Britain. The entire
Hamiltonian financial system depended on tariff revenue derived from imports of
British goods. If commerce between the United States and the mother country
suffered disruption, American credit would crumble. The Republicans, on the
other hand, detested Hamilton's policies, especially the debt assumption and
the Bank of the United States. Recognizing that the Federalist fiscal program
sought to bind men of wealth and status to the central government in an effort
to weaken state influence, the Republicans automatically suspected the
"Anglo-men" and Britain itself. Moreover, the farmers and planters of the
South, who were predominantly Republican, owed enormous sums of money to
British creditors, and hence they naturally favored the French (Elkins and
McKitrick 1993, 90).
Key to the rupture with France was President George Washington's
Neutrality Proclamation of 1793 and the Neutrality Act of 1794. Because the
United States was bound by treaty to defend the French West Indies and
prohibited from aiding the enemies of France, Washington's actions raised the
ire of the French as they warred with Great Britain. Though neutrality was the
practical course for a young, weak nation, such treatment of France shocked
Madison and other Republicans who, unlike the Federalists, sympathized with the
cause of revolutionary France and believed that the United States should
fulfill its obligations (Brant 1950, 374-75).
While Washington and his cabinet debated neutrality, the embodiment of
the French Revolution arrived in Charleston, South Carolina. Charles Edmund
Genet, the new minister of the French Republic, was welcomed by enthusiastic
crowds and local dignitaries. Long before presenting his credentials in
Philadelphia, Genet began to outfit privateers and schemed to incite rebellion
in Florida, New Orleans, and Canada. As Genet learned that the Americans'
definition of neutrality and their interpretations of the existing treaties
with France differed markedly from his own, his conduct grew more outrageous.
Just as the mob ruled in France, so Genet thought the mob ruled in America.
Taking that logic to an extreme, Genet threatened to go over the head of
President Washington and appeal directly to the American people. Republicans
and Federalists quickly realized that Genet was intractable, and Washington's
cabinet voted unanimously to demand his recall. Genet's conduct was an
embarrassment to French sympathizers in America, and, as Harry Ammon writes, it
"exposed, as no other previous episode, the extent and fury of the disagreement
between the two groups which had been seeking to control national policy since
the bitter controversy generated by the Hamiltonian fiscal program" (1973, 32).
Furthermore, the ratification in 1795 of Jay's Treaty, which attempted
to settle sundry differences between Great Britain and the United
States, struck the French as yet another
betrayal. Specifically, the Directory was outraged by the provisions requiring
the United States to order French privateers out of American ports and
permitting the British to capture ships bound for France bearing needed
supplies. Madison, in a letter of 12 February 1798 to Thomas Jefferson, called
the infamous treaty an "insidious instrument" (Madison 1991, 78).
Consequently, the French minister was withdrawn from Philadelphia, and
in Paris the French government refused to receive the new American minister,
Charles Cotesworth Pinckney. The Directory, in violation of the commercial
treaty of 1778, declared that it would no longer adhere to the principle that
free ships carried free goods and would consider all neutral vessels carrying
British goods as fair game. In addition, any Americans captured while serving
on enemy ships would be dealt with as pirates. Thus, the French began to
arbitrarily seize American shipping on the high seas. Within a year after the
ratification of Jay's Treaty, France had captured or destroyed more than three
hundred American vessels. Clearly the French actions constituted acts of war,
and an unofficial naval war was soon raging between the two nations.
The situation took a turn for the worse when President Adams sent John
Marshall, Elbridge Gerry, and Charles Cotesworth Pinckney to Paris to negotiate
a peaceful settlement. The emissaries were
denied access to the Directory and insulted by French agents supposedly acting
on behalf of the French foreign minister, Talleyrand. Talleyrand's agents, known in the dispatches simply as
X, Y, and Z, demanded a bribe, a loan to
France, and an apology for anti-French statements made by President Adams as
prerequisites for negotiations. Though bribes were common in France, permitting
high officials to live in luxury, Americans
considered their honor insulted when accounts of the XYZ affair were published
at home. "Millions for defense, not one cent for tribute," was the national
The United States certainly did not need a war with France. If such a
war broke out, the United States would face the French alone. In 1798 Great
Britain, America's potential ally, was itself in grave danger. Many believed a
French invasion of the British Isles to be imminent. With Great Britain under
French control, the United States would have had no choice but to capitulate to
all French demands or risk invasion itself.
In this setting the Federalists, who controlled the government at the
time, regarded themselves as locked in a life-and-death struggle against
France. They considered opposition to their policies to be the result of
faction and dangerous to the survival of the republic. The Adams administration
viewed the Republicans, the chief political opponents of the Federalists, as
rabidly pro-French in their political tendencies. President Adams believed that
the "French Jacobinal faction" would link up with French armies if an invasion
were to occur.
As the war frenzy grew, President Adams occasionally appeared in public
in military uniform with a sword at his side. Fearing that supporters of
Jefferson were little better than the mobs of France, Adams ordered a cache of
weapons delivered to his home for protection. Alexander Hamilton happily fanned
the flames of war as he urged that an army of twenty thousand men be raised
immediately. Fearing he had underestimated the danger, Hamilton later raised
the figure to fifty thousand. George Washington, in retirement at Mount Vernon,
let the administration know he would be willing to take charge of the army in
this time of national crisis. Washington did assume command, but he was only a
titular commander. Hamilton held the real power.
Of all the Federalists, Hamilton greeted war with the most excitement.
Not only did he long to meet the forces of regicide on the field of battle, but
he saw the crisis as an opportunity to quell resistance to national power in
the southern states. When Virginia began to upgrade its neglected defenses,
primarily in response to increased Indian attacks on its western border,
Hamilton took that action as a sign that Virginia was preparing the question
the authority of the Union. Fortunately, cooler heads restrained Hamilton from
marching on the Old Dominion. Hamilton also hoped to use his army to take
Louisiana and Florida for the United States. Ever ambitious, he entertained
dreams of pushing into South America as well.
Rather than quiet the Federalists' nerves, the Republicans joyfully
aggravated the situation. Republicans often addressed each other in the French
fashion as "citizen" and celebrated French military victories with grand
feasts. Jefferson made it known that he would
welcome a French victory over Great Britain. Because of his support of the
French Revolution despite his knowledge of the terror, Jefferson had earlier
lost the confidence of George Washington and was no longer trusted by his old
friend John Adams. Rather than see the French
Revolution fail, Jefferson was prepared to see "half of the earth desolated;
were there but an Adam and an Eve left in every country, and left free, it
would be better than as it now is" (Jefferson 1853, 502).
Because of the real threats posed by France in the war at sea and the
perceived threats of an unabashedly pro-French opposition, the Federalists
believed they had to act to save the nation. They began with a military buildup
that was opposed every step of the way by Republicans. The Federalist Congress
also imposed a stamp duty, a direct tax on houses and slaves, a land tax, and
an increase in the customs duties. The government resorted to borrowing, taking
a $5 million loan at 8 percent interest that made the Federalists look like
The Republicans opposed these measures because they feared standing
armies, fiscal irresponsibility, and loose play with the Constitution.
Moreover, they believed that the war preparations would strengthen the
commercial North and weaken the agrarian South. Though Jefferson loathed the
Federalists' taxes, he also found hope in them. He realized that only strong
medicine would cure the people of war fever, and in a 26 November 1798 letter
to Madison, he expressed his belief that with the levying of taxes "the Doctor
is now on his way to cure [war hysteria], in the guise of a tax gatherer"
(Jefferson 1854a, 274).
Jacobin fever afflicted most prominent Federalists, and they began to
formulate legislation to deal with the perceived danger. The leaders in
Congress already had an excellent model to follow. In 1794, in response to the
French Revolution, William Pitt had pushed through Parliament the Law against
Treasonable Practices and the Law against Seditious Meetings. Pitt silenced
calls for reform, broke up democratic societies, and sent several newspaper
editors to Botany Bay. As in Great Britain, the measures taken in the United
States against the dangers posed by revolutionary France served the dual
purposes of defending the country and conveniently silencing political
The Hated Acts
The first act passed in the United States because of the French threat,
the Naturalization Act of 18 June 1798, was aimed at European
immigrants. It increased the period that
immigrants had to wait before they could be naturalized from five years to
fourteen years. Primarily aimed at "wild Irishmen" and the thirty thousand
Frenchmen who resided in the United States, the act was intended to reduce the
ranks of the Jeffersonian Republicans, who had a large constituency of recent
Federalist Harrison Otis, however, attempted to go much farther. He
proposed a constitutional amendment to exclude all foreign-born who were not
citizens at the time from all offices in the government of the United States.
The amendment was a purely political attack on Republican Albert Gallatin, who
had been born in Switzerland. Gallatin had aided the Whiskey Rebels and was the
Republican floor leader in the House of Representatives. Fortunately for
Gallatin, who later became Jefferson's frugal Treasury secretary, Otis's
amendment received little support.
The Alien Friends Act of 25 June 1798 gave the president the power to
deport any alien he thought dangerous to the tranquillity or safety of the
United States, without a trial or a reason given for the suspicion. Only upon
receiving notice to leave the country was the alien allowed to present evidence
of his blamelessness and to apply for a license to remain. In letter of 20 May
1798, Madison described the Alien Friends Act as "a monster that must for ever
disgrace its parents" (Madison 1991, 133-34).
Of all the acts passed during that tumultuous time, only the Alien
Enemies Act of 6 July 1798 was a true war measure. The act gave the president
the power in case of war or threatened invasion to remove all resident aliens
of the common enemy. As the Alien Acts were under discussion by the House and
Senate in Philadelphia, Jefferson in a letter of 3 May 1798 to Madison noted
that many Frenchmen residing in the City of Brotherly Love had chartered a ship
to sail "with as many as she can carry" (Jefferson 1854a, 239). Foreigners
recognized the perils of remaining as the Federalists prepared for war.
The Sedition Act of 14 July 1798 brought up the rear in the parade of
horribles. The act, which reads like an Orwellian proclamation from an
omnipotent government, provided for the punishment of those who published or
uttered false or scandalous statements and information about the government of
the United States, Congress, or the president. Stirring up sedition could be
punished by a fine of not more than $2,000 and imprisonment not exceeding two
years. Though the truth could be used as a defense, no one using that defense
was ever acquitted. Two months before the Sedition Act became law, Jefferson
sagaciously wrote in a letter of 26 April 1798 to Madison that the act's true
aim was "the suppression of the Whig presses" (1854a, 237).
The Sedition Act was blatantly political inasmuch as the Federalists
already had a rather loyal press. Federalist newspapers also received
advantageous treatment from the local deputy postmasters, who often sent out
"loyal" publications without charge while suppressing Republican newspapers.
During that period, the correspondence between Jefferson and Madison contains
sundry complaints of missing newspapers and mail tampering. Clearly, no press measure was needed; the Federalists
already dominated the press. In view of that dominance, the Sedition Act seemed
to many to be a final move to silence all opposition and secure permanent
Republican Newspapers Persecuted
Though the Federalists enjoyed a largely loyal press, a small but
vociferous opposition press infuriated those in power. Of all the Republican
newspapers, the Philadelphia Aurora was the one most hated by the
Federalists. The Aurora was published by Benjamin Franklin's grandson,
Benjamin Bache, who was a master of political invective and unrelenting in his
Bache incurred Federalist wrath by publishing a conciliatory letter from
Talleyrand to President Adams before Adams had passed it on to the Congress.
Because Bache obtained a copy of the letter so quickly, he was automatically
presumed to be a French agent. Although his arrest took place two weeks before
the passage of the Sedition Act, the Federalists still sought to punish him.
The federal government intended to prosecute him for libel under the common
law, but Justice Samuel Chase provided an obstacle: only a few months earlier
he had held that in the absence of a statute the federal government could not
prosecute, because there was no federal common law. Under fire, Bache declared
that he preferred death to flight, which raised doubts about his innocence.
Unfortunately for the Federalists, Bache got his wish: he died of yellow fever
before they could renew their attack on him.
Though death delivered Bache from the Federalists, other Republican
newspapers found no solace. The Federalists brought suits against the most
influential Republican papers, including the Boston Independent
Chronicle, the New York Argus, the Richmond Examiner, and the
Baltimore American. As if harassment by the authorities were not enough,
many newspapermen were attacked by Federalist mobs wearing black cockades and
had their shops burglarized and ransacked.
Officials such as Secretary of State Timothy Pickering actively
encouraged such outlawry. Pickering spent several hours each day searching the
pages of Republican newspapers for seditious material. Earlier in his career he
had been sympathetic to the French Revolution, but with the passage of the
Sedition Act he atoned for his youthful indiscretion. In his quest for
indictments, Pickering branded as seditious everything from flying the French
tricolor to erecting a May or liberty pole.
The Trial of Thomas Cooper
To understand the vehemence with which the Federalists attacked the
opposition, one need only examine the accounts of the show trials conducted
under the Sedition Act. Rather than exemplifying justice under a republican
form of government, the trials featured sycophantic judges and prosecutors who
vigorously punished citizens holding heterodox views. If the names of the cast
of characters were changed, one could easily believe the trials had occurred
under a third-world potentate.
Thomas Cooper, who later became the president of the South Carolina
College, was a multitalented English lawyer and radical who had moved to the
United States in 1794. Cooper was arrested on 9 April 1800 for a handbill
written five months earlier, and his trial attracted national attention. The
secretaries of war, state, and the navy all attended the trial. Congressman
Robert Goodloe Harper was also there to observe the application of section 2 of
the Sedition Act, which he had drafted. Timothy Pickering went so far as to sit
on the bench with the two judges, Justice Samuel Chase and District Judge
Attorney General William Rawle, prosecutor of the Whiskey Rebels and the
tax rebel John Fries, handled the case for the government. Cooper was indicted
for "being a person of wicked and turbulent disposition, designing and
intending to defame the President ... and to bring him into contempt and
disrepute, and excite against him the hatred of the good people of the United
States" (Cooper 1800, 7).
Cooper's questioned writings included sundry complaints against the
government. Those stressed by Rawle were the assertions that the country had
been saddled with the expense of a permanent navy and a standing army; that the
government had foolishly borrowed money at 8 percent in time of peace; that
Adams's statements about the French "might justly have provoked war"; and that
Adams had interfered with the proceedings of a court of law. Cooper described
the last point as "a stretch of authority which the Monarch of Great Britain
would have shrunk from" (1800, 7). Cooper pleaded not guilty and used the truth
as a defense. As he mounted his defense it was clear he was not speaking merely
to the court. Cooper's defense was even more an indictment of Adams and a
message to the people to support the Jeffersonians in the election that was
only months away.
Cooper questioned how the people could rationally use their franchise if
"perfect freedom of discussion of public characters be not allowed" (1800, 19).
He said he knew the king of England could do no wrong, "but I did not know till
now that the President of the United States had the same attribute" (1800, 20).
At remarks such as these, vexation surely showed on the faces of the
Federalists in the courtroom. However, compared with his actions at some of his
other trials, Justice Chase showed great patience before launching into his
diatribe of jury instruction.
In his charge to the jury, Justice Chase took on the air of a prosecutor
rather than a judge. He even pointed out to the jury several things that
Attorney General Rawle had left out of the prosecution's case. Chase then
declared that Cooper's "conduct shewed that he intended to dare and defy the
government, and to provoke them, and his subsequent conduct [defense presented
at trial] satisfies in my mind, that such was his disposition" (Cooper 1800,
46). Chase regarded Cooper's publication as the boldest attempt he had seen to
poison the minds of the people. And if the jury was not satisfied that Cooper
had proved his innocence regarding all points of the indictment, they
must find him guilty.
So charged, the jury could reasonably have feared that a verdict of not
guilty would earn them arrest for sedition. Chase — never impartial
— got the verdict he desired; Cooper was fined $400 and imprisoned for six
months. "I do not want to oppress," Chase said as he sentenced Cooper, "but I
will restrain, as far as I can, all such licentious attacks on the government
of the country" (Cooper 1800, 46).
One wonders what sort of statements by the political opposition could
avoid being characterized as "licentious attacks on the government." Clearly,
under the Federalists' Sedition Act, all less-than-favorable discussion of
government policies was prohibited.
The Opposition Takes Action
As the environment in Philadelphia became more intolerant, Jefferson
left for Monticello to orchestrate a response with his fellow Republicans. As
he entered Virginia, Jefferson was welcomed as a hero. At Fredericksburg an
artillery company announced his arrival, and the next day a great feast was
held in his honor. Virginia and the South as a whole took a different view of
Jefferson and the policies of the Adams administration. For example, the
Sedition Act garnered only two votes in the House of Representatives from
representatives from south of the Potomac.
Rather than the chief Jacobin in the United States, Jefferson was seen as "the
virtuous and patriotic" vice president (Malone 1962, 380).
In crafting a response, Jefferson never lost sight of the true purposes
of the hated acts. In a letter of 11 October 1798 to Stephen Thompson Mason,
Jefferson correctly described the acts as "merely an experiment on the American
mind, to see how far it will bear an avowed violation of the Constitution"
(1854a, 258). Thus, the resolutions were not simply protests against despotic
legislation but protests against an interpretation of the Constitution that was
bound to lead to consolidation.
Furthermore, the Alien and Sedition Acts directly assaulted all three
facets of Jefferson's constitutional thought: Whig, federalist, and republican.
According to David Mayer (1994).
These three essential aspects of his thought may be summarized simply.
Jefferson viewed constitutions primarily as devices by which government power
would be limited and checked, to prevent its abuse through encroachment on
individual rights (the Whig aspect of his thought). His preferred system for
doing this was one in which governmental power was divided into distinct
spheres (the federal aspect), each of which was in turn subdivided into
distinct branches (legislative, executive, and judicial) equally accountable to
the "rightful" majority will of the people (the republican aspect). The
interrelationships — and, at times tensions — between these three
essential aspects of Jefferson's constitutional thought explain his response to
the particular constitutional issues and problems of his time,
In the response to the acts, the three elements of Jefferson's thought
were in harmony. The acts assaulted the
individual's right to criticize the conduct of government officials, ignored
the basic principles of federalism as the national government assumed more
power, and evinced the High Federalists' contempt for the people, who in the
Federalists' view had no business meddling in the affairs of government.
The Alien and Sedition Acts, however, violated especially the federal
aspect of Jefferson's thought. As the United States came of age, Jefferson saw
the dangers of consolidation as perhaps the greatest peril of all. In his
letter of 26 December 1825 to William B. Giles, Jefferson expressed his
conviction that "it is but too evident, that the three ruling branches of [the
national government] are in combination to strip their colleagues, the State
authorities, of all powers reserved by them, and to exercise themselves all
functions foreign and domestic" (1854b, 426-27). Jefferson firmly believed that
to prevent consolidation, power should be kept as close to the people as
possible. Though some states might abuse
power, Jefferson reasoned that not all would fall under the spell of tyranny.
But with a consolidated and abusive national government, all would suffer the
same tyranny; there would be no islands of peace. As Dumas Malone points out,
Jefferson never supported states' rights for their own sake, "but to safeguard
the freedom of individuals," which would undoubtedly suffer in a consolidated
nation (1962, 396). Hence, in drafting the Kentucky Resolves, Jefferson
identified the states as the proper entities of resistance.
Of course, Jefferson did not invent the idea of the states as bulwarks
against encroachments by the national government. Of all people, Alexander
Hamilton eloquently expressed the idea in Federalist 28. According to
Hamilton, it was an "axiom" of the American system of government "that the
state governments will in all possible contingencies afford complete security
against invasions of the public liberty by the national authority." He
continued by postulating that should the national government pose a danger, the
states could "at once adopt a regular plan of opposition, in which they can
combine all the resources of the community. They can readily communicate with
each other in the different states; and unite their common forces for the
protection of their common liberty" (Madison  1982, 137).
In a little-known episode just before the Sedition Act crisis,
Jefferson, responding to the actions of the grand jury of the federal circuit
court in Richmond, followed Hamilton's wisdom of Federalist 28 and laid
much of the foundation on the which the Kentucky resolution would be
built. In the spring of 1797 the grand jury
formally accused Samuel Jordan Cabell, who was the congressional representative
from Jefferson's district, of seditious libel. Cabell had sent a circular
letter to his constituents denouncing the Adams administration and hence was
accused of "endeavoring, at a time of real public danger, to disseminate
unfounded calumnies against the happy government of the United States, and
thereby to separate the people therefrom; and to increase or produce a foreign
influence, ruinous to the peace, happiness, and independence of these United
States" (Jefferson 1943, 315). Jefferson drafted an anonymous petition to the
Virginia House of Delegates, in which he called for the punishment of the
offending jurors. In the petition, Jefferson viewed the federal grand jury's
actions as violating the "natural right" of free correspondence, interfering
with the affairs of Congress, and putting "the legislative department under the
feet of the Judiciary" (1943, 315).
Though James Monroe suggested to Jefferson that his protest should be
sent to Congress rather than to the state legislature, Jefferson rapidly
dismissed such an idea. In rejecting Monroe's advice in a letter of 7 September
1797, Jefferson explained that the national government was claiming powers not
delegated by the Constitution and thus "seiz[ing] all doubtful ground. We must
join in the scramble, or get nothing." Moreover, Jefferson understood that the
federal character of the Union was at stake. He continued in his letter to
Monroe by observing that "it is of immense consequence that the States retain
as complete authority as possible over their own citizens," rather than bowing
to a "foreign jurisdiction" (1854a, 200). Clearly, one year before he penned
the Kentucky Resolves, Jefferson understood the very real threat of
consolidation and believed that the proper place to rally Republican forces was
at the state level.
The Kentucky and Virginia Resolutions
Working in complete secrecy, Jefferson drafted the Kentucky resolution
of 1798 between 21 July and 26 October 1798.
His original plan was for W. C. Nicholas to introduce the Resolves in North
Carolina, but because of political setbacks there, Nicholas instead gave the
Resolves to John Breckinridge for introduction in Kentucky. As an
independent-minded frontier state, Kentucky was the perfect forum for
Jefferson's resolution. Across the state, without much prompting, citizens
gathered to protest the Alien and Sedition Acts. In Lexington, five thousand
people — a crowd three times the town's population —
assembled. On 7 November 1798, Governor James
Gerrard announced the need for "a protest against all unconstitutional laws of
Congress" (Koch and Ammon 1948, 156.) A committee led by John Breckinridge was
appointed, and the Kentucky resolution was quickly introduced. On 10 November
1798 the Resolves, with modifications, passed the house with only three
dissenting votes; three days later the Senate concurred.
The Resolves began with the Tenth Amendment, which Jefferson described
in 1791 as "the foundation of the Constitution" (1943, 342). The states were
not "united on the principles of unlimited submission to their General
Government"; they had delegated only certain definite powers (Virginia
Commission 1964, 143). Thus, "whensoever the General Government assumes
undelegated powers, its acts are unauthoritative, void, and of no force"
The resolution explicitly disclaimed that the national government was
the judge of its own powers. Allowing it to judge its own powers would be akin
to permitting an agent, rather than the principal, to determine the breadth of
the agent's authority. The law of agency at its most basic level recognizes
that an agent can act as such only subject to the consent and control of the
principal to whom the agent owes a fiduciary duty (see Restatement [Second] of
Agency, sec. 1). Just as A, B, and C, the partners in a business firm, decide
what authority to give their agent Z, so the parties to the Constitution decide
the powers of the national government. In light of such logic, Jefferson
proclaimed in the resolution that "each party [to the federal compact] has an
equal right to judge for itself, as well of infractions as of the mode and
measures of redress" (Virginia Commission 1964, 144). For Jefferson, the people
acting through their states — the authentic organs of government —
were the final arbiters of constitutional interpretation. Jefferson feared that
giving the federal government the exclusive power to interpret the Constitution
through the Supreme Court would lead to arbitrary government. As John Taylor
later wrote in his Construction Construed and Constitutions Vindicated,
"a jurisdiction, limited by its own will, is an unlimited jurisdiction" (
1970, 131). With the states stripped of the power to construe the Constitution,
the enforcement of constitutional limitations on the central government would
be chimerical. Thus, it is not surprising that none of the convictions under
the Sedition Act were appealed to the Federalist-dominated Supreme Court. The
Republicans did not want to give the Court an opportunity to set a dangerous
The resolution continued by spelling out why the Alien and Sedition Acts
were unconstitutional. With respect to the Sedition Act, the second resolve
reasoned that the states delegated to Congress the power to punish but a few
specific crimes, such as treason, counterfeiting, and piracy. Thus, in light of
the Tenth Amendment's unmistakable declaration that what is not given is
reserved, the Sedition Act failed constitutional examination.
The third resolve examined the Sedition Act in light of the First
Amendment. Jefferson argued that because the First Amendment operated as a
restraint only on the national government, the states "retain to themselves the
right of judging how far the licentiousness of speech ... may be abridged"
(Virginia Commission 1964, 14). Though today it seems obvious that the Sedition
Act was a violation of the First Amendment, in 1798 that understanding was not
universal, and Jefferson's argument was in the libertarian vanguard. As Leonard
Levy has pointed out, the "Framers were nurtured on the crabbed historicism of
Coke and the narrow conservatism of Blackstone" and thus probably did not
intend to abolish the common law of seditious libel when adopting the First
Amendment (1985, xv, 220-81). Original intent aside, Jefferson's First
Amendment arguments were instrumental in forming the libertarian view of
freedom of speech.
The fourth, fifth, and sixth resolves dealt with the Alien Friends Act.
Jefferson asserted that alien friends were under the jurisdiction of the laws
of the state in which they resided. He pointed out that under the Constitution,
Congress could not prohibit "the Migration or Importation of such Persons as
any of the States now existing shall think proper to admit" until 1808 (Article
1, sec. 9). That reading of the Constitution's slave-import clause demonstrates
Jefferson's inclination to read broadly the clauses limiting power. Conversely,
Jefferson read the power-granting clauses narrowly.
Moreover, the act denied the aliens due process of law insofar as the
president was judge, jury, and executioner. By investing the president with
judicial power, the Alien Friends Act violated Article 3 of the Constitution.
To Jefferson such a transgression of the separation of powers was but a sign of
things to come. In the 1790s many Americans feared their republican experiment
would end in a monarchy like the one from which they had seceded.
The seventh, eighth, and ninth resolves protested the construction of
the necessary and proper clause that would give the general government
unlimited power, and called upon the governor of Kentucky to transmit the
Resolves to the legislatures of the several states. The ninth resolve expressed
apprehension that continued usurpation by the national government could only
"drive these states into revolution and blood, and will furnish new calumnies
against Republican Governments, and new pretexts for those who wish it to be
believed, that man cannot be governed but by a rod of iron" (Virginia
Commission 1964, 149-50). The iron-rod statement exemplified Jefferson's view,
as expressed in his letter of 21 June 1823 to Justice William Johnson, that man
is rational and need be restrained only "by moderate powers" exercised by
officials chosen by their fellow citizens (1854b, 291). The Jeffersonian view
of man was anathema to the Hamiltonians who, like Burke, believed that man is
an "intemperate" creature whose passions forge his own fetters (Burke 
1992, 69). To the Federalists, the Sedition Act exemplified a necessary
restraint on man's unruly passions.
The Kentucky resolution continued with the axiom that "free government
is founded in jealousy and not in confidence," because confidence "is every
where the parent of despotism" (Virginia Commission 1964, 150). Therefore, when
dealing "in questions of power then let no more be heard of confidence in man,
but bind him down from mischief by the chains of the Constitution" (150). The
resolution ended with a call to other states to express their opinions of the
Alien and Sedition Acts. Though the resolution expressed confidence that "the
co-States ... will concur in declaring these acts void and of no force, and
will each unite with this Commonwealth in requesting their repeal at the next
session of Congress," the response, to be discussed later, was not what the
Republicans expected (151).
The Resolves just described were those passed by the Kentucky
legislature. Several changes had been made to the original draft written by
Jefferson and introduced by Breckinridge. One change was the omission of the
term "nullification." With Hamilton and others hoping for an opportunity to
march on the so-called agents of Jacobinism, the use of Jefferson's strong term
might have given the hawks the opportunity they sought. In 1798 the Union was
far closer to civil war than to a French invasion, and talk of "nullification"
might have provided the spark to start a national conflagration.
As passed, the Kentucky resolution also omitted Jefferson's call for a
"committee of conference and correspondence" to foster communication among the
states, which Hamilton had suggested in Federalist 28. As in the Cabell
affair, Jefferson saw no reason to inform the Congress, inasmuch as Congress
was not a party to the compact. The Kentucky legislature apparently preferred
to work within the generally accepted constitutional framework and therefore
shunned the creation of a committee of correspondence.
The most significant omission was Jefferson's request that each of the
co-states, as a party to the compact, "take measures of its own for providing
that neither these acts, nor any others of the General Government not plainly
and intentionally authorized by the Constitution, shall be exercised within
their respective territories" (Jefferson 1943, 134). Such actions would have
differed greatly from merely appealing to Congress for repeal of the acts;
Jefferson expected the states to take active measures to thwart the execution
of the Alien and Sedition Acts. And when he learned of the negative responses
from the other states, he contemplated secession. Rather than relinquish
liberties to a consolidated national government, Jefferson was prepared for
Virginians and Kentuckians to "sever ourselves from that union we so much
value, rather than give up the rights of self-government which we have
reserved, & in which alone we see liberty, safety & happiness" (quoted
in Koch and Ammon 1948, 166). Madison, who frequently served as a moderating
influence on Jefferson, talked him out of moving toward secession, but the fact
remains that the resolution as penned by Jefferson was meant to be more than a
protest; Jefferson envisioned the states defying the unconstitutional acts of
the national government (Banning 1995, 393).
On 17 November 1798, Jefferson sent Madison a copy of his draft of the
Kentucky resolution. Jefferson wrote that
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, and
yet may be free to push as far as events will render prudent. (Jefferson 1854a,
That statement is noteworthy for several reasons. First, he was
obviously pressing Madison to see that a similar resolution be passed in
Virginia. Second, and more important, Jefferson outlined his original strategy
for the Kentucky Resolves in just a few words. He did not want to be forced
into a general confrontation with the national government over nullification,
but intended to retain the option to push as far as events permitted. In light
of the language in Jefferson's original draft, had a number of states supported
the resolution, it seems plausible that Jefferson might have begun drafting an
ordinance of nullification for Kentucky.
Madison's Virginia resolution, which was introduced in the Virginia
Assembly by John Taylor, was much shorter and more moderate than Jefferson's
fervent Kentucky resolution. After expressing Virginia's warm attachment to the
Union, the resolution appealed to the Tenth Amendment and declared that the
powers of the federal government are "limited by the plain sense and intention
of the instrument constituting that compact" and
that in the case of a deliberate, palpable, and dangerous exercise of
other powers, not granted by the said compact, 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. (Virginia Commission 1964,
Madison did not consider interposition a proper response to every
disagreement with the central government. Only when the central government's
exercise of power was "deliberate, palpable and dangerous" should the states
interpose to protect the liberties of the people. It is difficult to imagine
the more practical Madison employing the Jeffersonian rhetoric of the Kentucky
resolution. Though Jefferson most assuredly intended the Resolves to be more
than protests, Madison's intention is more difficult to judge. From his
statements made in the 1830s (discussed below), it appears that Madison merely
intended to elucidate constitutional principles, with emphasis on the Tenth
Amendment, and thereby to encourage repeal of the acts. Considering that until
the ratification of the Seventeenth Amendment in 1913 the state legislatures
appointed senators and thus the states as such had representation in the
national government, a state protest was more likely in those days to have an
effect than it would be today. A state legislature could instruct its senators
to seek repeal of legislation, and if the senators failed to do so, the state
legislature could remove them when their terms expired.
The Response of the States
The state responses to the Kentucky and Virginia resolutions
disappointed the Republicans. For example, Delaware considered the Resolves an
"unjustifiable interference with the General Government." Rhode Island declared
the Alien and Sedition Acts to be constitutional insofar as they promoted the
general welfare of the United States. Rhode Island, Massachusetts, Vermont, and
New Hampshire asserted that the Supreme Court was the ultimate authority for
deciding the constitutionality of acts of Congress. Massachusetts proclaimed
that liberty of the press was not interfered with, because true freedom of the
press forbade only prior restraints. To their chagrin, Madison and Jefferson
received not one favorable answer from the seven states that responded. The
legislatures of the Republican-dominated southern states did not answer at all.
According to Jefferson scholar Dumas Malone, the replies from the North and
lack of responses from the South were not accurate gauges of public opinion. In
any event, Kentucky reaffirmed its resolution, and Madison delivered his report
of 1800, which considered the responses of the states at length and remains one
of the clearest expositions of the Constitution.
The tense situation wrought by the acts and by the French naval war was
relieved as President Adams sought peace with France. Adams realized that the
nation did not need war. Federal spending was double what it had been during
Washington's last term, and revolts against high taxation, such as Fries's
Rebellion, convinced the president that peace was the only course to
Adams's actions split his party and led to the decline of the
Federalists. Pickering, the administration's chief Jacobin-hunter, was
dismissed in the early summer of 1800 for attempting to thwart the president's
plans for peace. Hamilton, denied a war, felt betrayed and wrote The Public
Conduct and Character of John Adams, Esq., President of the United States.
Had that pamphlet, which ruthlessly attacked President Adams, come from the pen
of a Republican, it would no doubt have landed the author in prison for
sedition. That Hamilton could get away with such an attack confirms the
partisan character of the Sedition Act.
The election of 1800 was bitterly contested — the Federalists
alleged that a vote for Jefferson was a vote against God — but the general
outrage at the Federalists' partisanship and their extraconstitutional actions
led to the electoral victory of the Republicans and to the triumph of their
beliefs in a strict construction of the Constitution, states' rights, and
freedom from taxes and debt. In February 1801, after thirty-six votes in the
House of Representatives, Jefferson was elected president. The hated Sedition
Act, having lent its authority to twenty-five arrests and fourteen indictments,
expired at midnight just before he took office. Jefferson ordered the
termination of pending prosecutions, and he pardoned persons convicted under
The Influence of the Resolutions
Though the doctrines of the Kentucky and Virginia resolutions are most
often thought of as the staple of southern states' rights advocates, many
states of both the North and the South have at some time either expressly
approved the principles of the resolutions or acted in their spirit. What
follows are but four examples.
In 1803 in the Olmstead case, the governor of Pennsylvania ordered the
state's militia to defend two ladies against service of process by any officer
"of any Court of the United States." That stance was not abandoned until the
chief justice of the state court held that it was not clear the United States
courts did not have jurisdiction (Kilpatrick 1957, 101-18).
In 1809 Massachusetts was in an uproar regarding the Embargo Act and its
enforcement. The commonwealth legislature passed the following resolution:
"That the said act of Congress ... [is] ... in the opinion of this Legislature
in many respects, unjust, oppressive and unconstitutional, and not legally
binding on the citizens of this State" (Kilpatrick 1957, 125-31).
In 1820, when Ohio was fighting against the unconstitutional Bank of the
United States, it recognized and approved "the doctrines asserted by the
Legislatures of Virginia and Kentucky, in their resolutions of November and
December, 1798, and January 1800 — and do consider that their principles
have been recognized and adopted by a majority of the American people"
(Kilpatrick 1957, 144-58).
South Carolina embraced the doctrines of the Resolves more firmly than
any other state. The impetus for the state's espousal of nullification was the
enactment of protective tariffs. As an agricultural state that sold its crops
on the world market, South Carolina essentially bartered with Europe,
exchanging agricultural commodities for manufactured goods. Because of the
tariff, South Carolina paid much more for those goods and also feared a trade
war in which Europe would retaliate against the American tariffs by placing
duties on southern exports. South Carolina's legislature rightly complained
that the North discarded the teaching of the classical economists regarding
free trade whenever a factory was planned. Had the offending tariffs been
imposed to pay the national debt, South Carolina would not have protested. But
because the avowed purpose of the tariff was the perpetuation of the American
system of industrial protection, South Carolinians took themselves to have been
wronged. Protection and redistribution of wealth for internal improvements were
unconstitutional in their eyes.
At the center of the movement for nullification was the same Thomas
Cooper who had earned the wrath of the Federalists in the 1790s for his
opposition to the Adams administration. Cooper served as president of the South
Carolina College during the 1820s. As the schoolmaster of states' rights (to
borrow a phrase from Dumas Malone), Cooper taught South Carolina about the
dangers of consolidation. In 1827, as the tariff controversy grew, Cooper
publicly questioned the benefit of the Union at a time when such talk raised
eyebrows even in the Palmetto state. In a fervid speech, he described the South
as the perennial loser and the North as the gainer in an "unequal alliance."
Viewing the question as a choice between separation and suppression, Cooper
prophetically averred that South Carolina would in the near future "be
compelled to calculate the value of our union." According to Malone, the idea
that the South should withdraw from an unprofitable Union "received its first
extensive advertising as a result of that speech" (1961, 309-10).
Amid the controversy over the protective tariff, South Carolina called a
special convention in November 1832 and actually passed an ordinance of
nullification in response to the 1828 Tariff of Abominations and the Tariff of
1832. Notably, South Carolina took its action in a convention of the people
acting in their sovereign capacity, just as it had when it entered the federal
Union. The nullification was not an act of the legislature. Margaret Coit succinctly sums up South Carolina's
Nullification did not suspend a law for the nation, but only within
the state that protested. It was not an end in itself, but a method of appeal.
It gave opportunity for three-quarters of the states in convention to determine
whether or not to confer the questioned power upon the Union by constitutional
amendment. The nullifying state would then have to obey — or secede (1991,
The greatest champion of what many called the South Carolina doctrine
was John C. Calhoun. Clyde Wilson, the editor of Calhoun's papers, writes that
Calhoun began his career as, "and always considered himself to be, a
Jeffersonian Republican" (1992, xix). The principles of the Kentucky and
Virginia resolutions were his guiding light as his state faced a belligerent
President Andrew Jackson. Writing to Boiling Hall on 13 February 1832, Calhoun
remarked that "we are certainly more United against the Tariff, than we ever
have been; and, I think, better disposed to enhance the old Republican
doctrines of 98, which can save the Constitution" (Calhoun 1978, 553).
Jefferson himself agreed with Calhoun on the tariff and even prepared
Virginia's own protests of 1825. As Robert Y. Hayne remarked in a speech to the
Senate in 1830, the South Carolina doctrine was not an innovation but "the good
old Republican doctrine of '98" (Hayne 1830, 28). To many patriotic South
Carolinians it was the last and best chance to preserve the Union.
In his South Carolina Exposition, Calhoun wrote that the state had a
"sacred duty to interpose — a duty to herself — to the Union —
to present, and future generations — and to the cause of liberty over the
world, to arrest the progress of a usurpation which, if not arrested, must, in
its consequences, corrupt public morals and destroy the liberty of the country"
(Calhoun  1992, 361). For Calhoun the question revolved not around the
dollars and cents of the tariff, though South Carolina felt that sting as much
as any state, but around the future of liberty in the republic.
Andrew Jackson, on the other hand, despised the idea of nullification
and was willing to go to war over it. Rumors abounded in Washington that he had
ordered the arrest of Calhoun and other South Carolina representatives. Jackson
then surrounded South Carolina with federal troops in an effort to maintain the
supremacy of the Union at all costs.
Fortunately, a compromise was crafted at the last minute in the Senate
— by Henry Clay, the father of the "American System" — that gradually
lowered import duties. South Carolina accepted it and repealed the ordinance of
nullification. Not until South Carolina
seceded after the election of Abraham Lincoln was a state to go farther in
accordance with the principles of the Kentucky and Virginia resolutions.
Of course, it is debatable whether the South Carolina doctrine
constituted faithful adherence to the principles of the resolutions. The old
Jeffersonian Republican John Randolph supported the Carolina doctrine,
grandiloquently stating that if because of senescence he could not participate
in the possible armed conflict, he would "at least be borne, like Muley Moluc,
in a litter to the field of battle and die in your ranks" (quoted in Houston
 1967, 120-21). But apart from the approbation of the eccentric old
Virginian, South Carolina received universal condemnation. Virginia reaffirmed
the principle of 1798 but made clear that Madison's Virginia resolution did not
countenance South Carolina's actions.
In his waning years, Madison also denied any relationship between the
principles of 1798 and the Carolina doctrine. In a letter of 29 August 1834 to
Edward Coles, Madison characterized the Carolina doctrine as an "anarchical
principle" that "has the effect of putting powder under the Constitution &
Union, and a match in the hand of every party, to blow them up at pleasure"
(Madison 1910, 540-41). In April 1830, Madison responded directly to Hayne, who
had sent him a copy of speeches espousing nullification. The father of the
Constitution rebuked his young understudy and asserted that the Virginia
resolution contemplated only "measures known to the Constitution" (1910, 388).
According to Madison, if a state considered a law unconstitutional, it could
appeal to the Supreme Court, urge impeachment of offending officials, or in the
"last resort" seek to amend the Constitution. Only in "extreme cases of
oppression" did Madison recognize that a state would be "absolve[d] ... from
the Constitutional Compact to which it is a party" (1910, 383).
Clearly, the Resolves, as used in 1798, did not sanction the
actions of South Carolina. Virginia and Kentucky did not attempt to interfere
with federal officials or with the operation of the hated acts. Studies of the
contemporary grassroots protests also indicate that the people did not
countenance secession or nullification as they demanded redress (Smith 1970).
As James Jackson Kilpatrick has pointed out, the refusal to consider more
drastic means might have reflected the impending expiration of the Sedition Act
in 1801 rather than a lack of innovative thinking (1957, 85-86).
In the same vein, one must question whether the inaction comported with
the spirit of the Resolves or whether, when confronted by the objurgations of
the Northern states, Virginia and Kentucky abandoned any thoughts of further
action, declining to push harder because of the staunch opposition. In his
draft of the Kentucky resolution, Jefferson seems to have envisioned
disobedience when he wrote that the co-states should enact measures to prevent
the execution of the Alien and Sedition Acts within their respective
territories. Moreover, though Madison persuaded him otherwise, Jefferson
questioned the value of the Union in 1799 insofar as he expressed a preference
for secession over the relinquishment of the rights of self-government. The
states that responded to the Resolves also interpreted them more broadly than
did the aged Madison. Why would several of those states have responded that the
Supreme Court was the final arbiter of constitutional questions if the Kentucky
and Virginia resolutions were viewed as mere complaints? Had the southern
states responded favorably to the Resolves and had Adams's popularity been
greater (thus diminishing the chance of a revolution at the ballot box), the
Revolution of 1800 might not have been bloodless.
Implications for the Present
Whether one approves of the Carolina doctrine or not, the Kentucky and
Virginia resolutions highlight a grave flaw in the Constitution of 1787: it
does not explicitly provide an umpire to settle disputes between the states and
the central government. If the Supreme Court is the ultimate arbiter of the
Constitution, as the Court unanimously proclaimed in Cooper v. Aaron
(358 U.S. 1 ), then the caprice of the national government and not the
Constitution is the supreme law of the land. Clearly, if the national
government is the judge of its own powers, it will construe them broadly and
dispose of any hopes for limited government.
Jefferson inferred that in the absence of an umpire, the parties to the compact
are the ultimate arbiters of the Constitution. Although his reasoning is sound
even without a written provision in the Constitution, an amendment to the
Constitution is needed to end the controversy once and for all. (See the
appendix for a proposed amendment.)
Unfortunately, Congress is not likely to propose an amendment that would
divest the national government of the luxury of determining the breadth of its
own powers. That unsurmountable barrier brings us to yet another problem with
the Constitution: it contains no provision for the states to propose amendments
except by a convention that could treat the Constitution as a blank slate.
Currently, amendments may be proposed in two ways: two-thirds of both houses of
Congress may propose amendments to the states, or two-thirds of the states may
petition Congress for a constitutional convention. Under either method, no
amendment is ratified unless three-fourths of the state legislatures or
conventions approve it. As William Quirk and Robert Wilcox (1998) have
explained, Article 5 of the Constitution as originally drafted by Madison
eschewed the dangers of a constitutional convention and forced Congress to
submit amendments "on the application of two thirds of the Legislatures of the
several States" (18). As the Philadelphia convention prepared to adjourn,
Gouverneur Morris suggested the never-used and dangerous convention method that
we now have. Though Madison noted that the convention method might cause
difficulties, he did not put up much of a fight, and thus the national
government became the de facto agent of constitutional change.
Under a Madisonian amendment process, the states — as the parties
to the compact — could confer among themselves and offer amendments to the
Constitution to curb the national government. Such an amendment procedure would
obviate the need for more radical measures, because the states would have a
voice in revising the Constitution in order to defend the exercise of the
reserved powers and the liberties of the people. Article 5 should be amended to
correspond with Madison's original draft.
But what are the states to do when a constitutional provision is in
place and the national government ignores it? For example, what if a modern
version of the Sedition Act were passed by Congress and signed by the
president? The First Amendment is already perfectly clear that "Congress shall
make no law ... abridging freedom of speech." This example demonstrates the
weakness of any amendment process when the national government remains the
judge of its own powers. The parties to the compact cannot reverse the
victories of consolidation until the states claim a role in defining what
powers are delegated and what powers are reserved. The amendment specified in
the appendix would shift the power of interpretation while acknowledging the
sectional differences that existed in Jefferson's time and that persist as the
nation approaches the new millennium (see Cawthon 1997).
Before any such amendment is added to the Constitution, however, the
spirit of 1776 must be rekindled in the people. Congress will never propose
amendments that surrender the discretion of the national government to
interpret the Constitution or that give the states a role in suggesting
amendments unless a great popular demand arises. A revival of the spirit that
animated the Revolution of 1800 is needed again today.
During the crisis of the Alien and Sedition Acts, Jefferson wrote in
letter of 12 March 1799 to Thomas Lomax:
The spirit of 1776 is not dead. It has only been slumbering. The body
of the American people is substantially republican. But their virtuous feelings
have been played on by some fact with more fiction; they have been the dupes of
artful maneuvers, and made for a moment to be willing instruments in forging
chains for themselves. (1854a, 300)
Like the early Americans who supported the unconstitutional acts of the
Federalists, modern Americans have been "dupes" in forging their own
chains. Americans support programs concocted
by the national government, such as Social Security, Medicare, and Medicaid,
which render the recipients dependent on the national government. Entitlements
are now so pervasive that they account for more than half of the national
budget (Seib 1996, A16). Hilaire Belloc's predictions about the servile state
have come true.
The fundamental question is whether the spirit of 1776 can be revived.
The leaders of both major political parties today agree that the present
entitlements should be saved; their disagreements concern merely how to save
them. In the twentieth century a progression of New Deals, Fair Deals, Great
Societies, wars, and social upheavals has created the current Leviathan. Hollow
"victories" such as the so-called Reagan revolution have left only debt and
growing social programs in their wake.
For true change to take place, Americans must once again conceive of
their history as a struggle to create and maintain real freedom. Part of that
reconceptualization would entail making a place for the Kentucky and Virginia
resolutions in the pantheon of American charters. The resolutions articulate
the fundamental principles of our government in an eloquent yet logical manner;
in their import, they rank second only to the Constitution. For Americans who
would recreate a limited federal government of enumerated powers — the
government created by the Founders — the resolutions can serve as an
* William J. Watkins, Jr. is a student at the University
of South Carolina School of Law and a member of the staff of the South
Carolina Law Review.
1. At issue were (1) British troops still on American
soil in the Northwest, despite the 1783 Treaty of Paris; (2) restrictions on
American commerce more onerous than those borne by the colonies before the
Revolution; and (3) the British Order in Council of 6 November 1793, which led
to widespread depredations on American commerce and to the confiscation of
anything coming to or going from the French West Indies. For accounts of the
Jay Treaty and events leading to the Jay mission, see Bemis 1923 and Combs
2. Evincing a spirit of reconciliation, Adams
originally wanted Madison to join the others, but the cabinet threatened to
resign if Madison were chosen (Sharp 1993, 164-65).
3. Pro-French factions in the United States were not
convinced that X, Y, and Z were indeed acting on behalf of the French
government or officials. Jefferson in his letter of 29 January 1799 described
the event as "cooked up" with "the swindlers ... made to appear as the French
Government" (1854a, 274).
4. There was a W (Nicholas Hubbard), but he made only a
brief appearance and therefore is often left out of accounts of the incident.
The identities of X, Y, and Z were Jean Conrad Hottinguer, Pierre Bellamy, and
Lucien Hauteval (Stinchcombe 1980, 115).
5. Historians estimate that in two years, Talleyrand
received bribes totaling 14 million francs for such actions as expediting
treaties and guaranteeing immunity for neutrals (Elkins and McKitrick 1993,
6. The Democratic-Republican societies, which sprang up
in the wake of the French Revolution, especially worried the Federalists.
Washington attributed the Whiskey Rebellion to them. Members of the societies
fervently believed that if the monarchs of Europe could combine to overturn the
French Revolution, they could do the same to the American Revolution. Several
societies helped to arm French privateers, and most of them encouraged American
statesmen to emulate the virtues of the governing bodies of France (see Foner
7. The decisive event in precipitating the rupture was
the American publication of Thomas Paine's Rights of Man. Jefferson,
sending the book to the printer, enclosed a note expressing pleasure "that
something was at length to be publicly said against the political heresies
which had of late sprung up among us." He intended the note to remain private,
but the printer published the remarks as a preface to the book. Adams rightly
took "heresies" to refer to his Discourses on Davila, in which he
condemned the French Revolution (Peterson 1976, 57).
8. Though Jefferson continually expressed his wishes
for the success of the French Revolution, as in the letter of 3 January 1793 to
William Short (just quoted), Jefferson's only live exposure to that revolution
occurred during its least violent and most moderate phase. With an ocean
separating him from the events, Jefferson (and many other Republicans) formed
an idealized picture of the French Revolution that did not correspond to
reality. Conor Cruise O'Brien's observation is appropriate: "The only safe way
of maintaining American enthusiasm for the French Revolution was to keep the
French Revolution at a distance, seen through a warm haze. Any whiff of the
real thing was fatal" (1996, 178).
9. For the full text of the acts, see Smith 1956,
10. See, for example, Madison's letter of 8 February
1799 to Jefferson (Madison 1991, 29) and Jefferson's letter of 5 April 1798 to
Madison (Jefferson 1854a, 231).
11. Sectional voting patterns developed long before the
Sedition Act controversy, with New England showing the greatest cohesion (Bell
12. The best evidence of Jefferson's political
principles during the Sedition Act crisis can be found in his letter of 26
January 1799 to Elbridge Gerry, in which he professes his belief in the
Constitution as ratified by the states, the necessity of preserving state
powers, the evil of debt and standing armies, the benefits of free trade, the
avoidance of entangling alliances, freedom of religion, and the success of the
French Revolution (Jefferson 1854a, 266-74).
13. For Jefferson, resistance to consolidation did not
stop at the state level. In a letter of 12 June 1816 to Samuel Kerchival,
Jefferson wrote: "We should thus marshall our government into, 1, the general
federal republic for all concerns foreign and federal; 2, that of the State,
for what relates to our own citizens exclusively; 3, the county republics, for
the duties and concerns of the county; and 4, the ward republics, for the
small, and yet numerous and interesting concerns of the neighborhood" (1854b,
14. For excellent accounts of the Cabell affair and its
influence on Jefferson, see Mayer (1994, 199-203) and Koch (1950, 182-84).
15. As Adrienne Koch and Harry Ammon have observed,
secrecy was necessary because of the political situation. Had Adams learned
that Jefferson was the author of the Kentucky Resolves, Adams might have had
Jefferson arrested and tried for sedition (1948, 149-50).
16. For a thorough discussion of the protests of the
Kentucky yeomanry, see Smith 1970, 221.
17. I am indebted to David Mayer for this observation.
See Mayer 1994, chap. 7.
18. The term "nullification" was used in the Kentucky
resolution of 1799, but by that time tensions had been relieved somewhat.
19. Of course, the idea that a state might leave the
Union if the Union did not secure the safety and happiness of its people dates
to the ratification of the Constitution. For example, in its ratification
message, Virginia declared that "the powers granted under the Constitution
being derived from the People of the United States may be resumed by them
whensoever the same shall be perverted to their injury or oppression" (Virginia
Commission 1964, 71). Likewise, New York averred that "the powers of Government
may be reassumed by the People, whensoever it shall become necessary to their
20. As early as 1798, Madison appreciated the
distinction between the legislature and a convention. In a letter of 29
December 1798 to Thomas Jefferson, Madison postulated that because the states
ratified the Constitution by conventions, a convention was the proper assembly
for judging infractions of the compact (Madison 1991, 191).
21. When South Carolina repealed the ordinance of
nullification regarding the tariff, it passed another to void the Force Bill,
which had been enacted to give the national government power to collect tariff
revenue by force if necessary. With the compromise, however, the point became
moot. For discussions of the nullification controversy, see Bancroft 1966 and
Houston  1967.
22. A prime example is the commerce clause. The Court
has interpreted that clause as giving the national government the power to pass
comprehensive civil rights laws (Heart of Atlanta Motel v. United
States, 379 U.S. 241 ) and criminal statutes (Perez v. United,
States, 402 U.S. 146 ). Though the case (United States v.
Lopez, 115 Sup. Ct. 1624 ) in which the Court struck down the
Gun-Free School Zones Act as having no substantial relation to interstate
commerce offers some hope of narrowing the scope of the commerce clause,
commentators have noted that the Court's most expansive precedents would be
upheld under the test established in Lopez (see Hagen 1996, 1388 n.
23. Occasionally the people of the states do protest
and prevail. See Printz v. United States (117 Sup. Ct. 2365 ), in
which the Supreme Court struck down an interim provision of the Brady Handgun
Violence Prevention Act requiring local law enforcement officials to conduct
background checks. According to Justice Scalia, who wrote for the Court,
"residual state sovereignty was also implicit ... in the Constitution's
conferral upon Congress of not all governmental powers, but only discrete,
enumerated ones ... which implication was rendered express by the Tenth
Amendment" (2376-77). Just after Printz was decided, South Carolina
protested the Driver's Privacy Protection Act (DPPA) in the federal courts and
won a permanent injunction (Condon v. Reno, 972 F. Supp. 977 ).
The DPPA requires that "a State department of motor vehicles ... shall not
knowingly disclose or otherwise make available to any person or entity personal
information about any individual obtained by the department in connection with
a motor vehicle record." South Carolina, already having a statute regulating
access to motor vehicle records, took umbrage at the federal intrusion and
sought a remedy in the federal district court. Relying on the Tenth Amendment,
Judge Dennis Shedd found that the DPPA exceeds the power of the national
government. The case is currently on appeal to the Fourth Circuit.
24. According to Belloc ( 1977), "The future of
industrial society ... left to its own discretion, is a future in which
subsistence and security shall be guaranteed for the proletariat, but shall be
guaranteed at the expense of the old political freedom and by the establishment
of that proletariat in a status really, though not nominally, servile"
The following is an example of an amendment that would embody Jefferson
and Madison's principles in the Resolves of 1798 as well as John C. Calhoun's
contribution to constitutional theory.
Section 1. The Constitutional Commission shall settle questions
presented by the several States concerning the constitutionality of measures or
actions taken by the government of the United States.
Section 2. The Constitutional Commission shall be composed of one
Commissioner from each State chosen every second year by the people of the
several States from two candidates chosen by the State Legislature, and the
electors in each State shall have the qualifications requisite for the electors
of the most numerous branch of the State Legislature; each Commissioner shall
have one vote.
Section 3. No person except a natural born citizen shall be
eligible to the office of Commissioner; nor shall any person be eligible to
that office who shall not have attained to the age of thirty-five years, and
been fourteen years a resident within the United States, and been nine years a
resident of that State for which he shall be chosen. No person shall be elected
to the office of Commissioner more than four times.
Section 4. When vacancies happen by resignation, or otherwise,
during the recess of the Legislature of any State, the executive thereof may
make temporary appointments until the next meeting of the Legislature, which
shall choose two candidates to present to the people to fill the vacancy.
Section 5. The Constitutional Commission shall assemble at least
once in every year, and such meeting shall begin at noon on the third day of
January, unless they shall by law appoint a different day. The Constitutional
Commission shall choose their Chairman and other officers. The Commission shall
be the judge of the election returns and qualifications of its own members, and
three-fourths of its members shall constitute a quorum to do business. The
Commission may determine the rules of its proceedings. The Commission shall
keep a journal of its proceedings, and from time to time publish the same.
Section 6. The Commissioners shall receive a compensation for
their services, to be ascertained by law, and paid out of the Treasury of the
United States. No Commissioner shall, during the time for which he was elected,
be appointed to any civil office under the authority of the United States.
Section 7. Whenever the Chairman of the Constitutional Commission
shall receive petitions from one-fifth of the legislatures of the several
States requesting a ruling on the constitutionality of a specific measure or
action of the government of the United States, the Commission shall convene.
The act or measure of the national government shall be void and of no force if
three-fourths of the Commissioners present vote against its constitutionality,
or if three-fourths of the Commissioners from one section of the United States
shall vote against the constitutionality of the act or measure.
Section 8. The three sections of the United States are defined as
The Western Section shall be composed of Alaska, Arizona, California,
Colorado, Hawaii, Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North
Dakota, Oregon, South Dakota, Utah, Washington, and Wyoming.
The Southern Section shall be composed of Alabama, Arkansas, Florida,
Georgia, Kentucky, Louisiana, Maryland, Mississippi, Missouri, North Carolina,
Oklahoma, South Carolina, Tennessee, Texas, Virginia, and West Virginia.
The Northern Section shall be composed of Connecticut, Delaware,
Illinois, Indiana, Iowa, Maine, Massachusetts, Michigan, Minnesota, New York,
New Hampshire, New Jersey, Ohio, Pennsylvania, Rhode Island, Vermont, and
Whenever new States are admitted to the Union, the Commission shall make
the necessary modifications to the sectional compositions.
Section 9. The Constitutional Commission shall not sit as a
Convention as prescribed in Article 5 of the Constitution of the United States.
Ammon, Harry. 1973. The Genet Mission. New York: Norton.
Bancroft, Frederic. 1966. Calhoun and the South Carolina
Nullification Movement. Gloucester, Mass.: Peter Smith.
Banning, Lance. 1995. The Sacred Fire of Liberty: James Madison and
the Founding of the Federal Republic. Ithaca, N.Y.: Cornell University
Bell, Rudolph M. 1973. Party and Faction in American Politics: The
House of Representatives, 1789-1801. Westport, Conn.: Greenwood.
Belloc, Hilaire.  1977. The Servile State. Reprint.
Indianapolis, Ind.: Liberty Classics.
Bemis, Samuel Flagg. 1923. Jay's Treaty: A Study in Commerce and
Diplomacy. New York: Macmillan.
Brant, Irving. 1950. James Madison: Father of the Constitution,
1787-1800. New York: Bobbs-Merrill.
Brooks, David L., ed. 1993. From Magna Carta to the Constitution:
Documents in the Struggle for Liberty. San Francisco: Fox and Wilkes.
Burke, Edmund.  1992. A Letter to a Member of the National
Assembly. In Further Reflections on the Revolution in France, edited by
Daniel E. Ritchie. Indianapolis, Ind.: Liberty Fund.
Calhoun, John C. 1978. The Papers of John C. Calhoun, 1829-1832.
Edited by Clyde N. Wilson. Vol 11. Columbia: University of South Carolina
---------. [ 1828] 1992. Rough Draft of What Is Called the South
Carolina Exposition. In Union and Liberty: The Political Philosophy of John
C. Calhoun, edited by Ross M. Lence. Indianapolis, Ind.: Liberty Fund.
Cawthon, William Larnar, Jr. 1997. The South as an Independent Nation.
Southern Partisan (third quarter).
Coit, Margaret, 1991. John C. Calhoun: American Portrait.
Columbia: University of South Carolina Press.
Combs, Jerald A. 1970. The Jay Treaty: Political Battleground of the
Founding Fathers. Berkeley: University of California Press.
Cooper, Thomas. 1800. An Account of the Trial of Thomas Cooper.
Philadelphia: John Boiren.
Elkins, Stanley, and Eric McKitrick. 1993. The Age of Federalism.
New York: Oxford University Press.
Foner, Philip S., ed. 1976. The Democratic-Republican Societies, 1790
— 1800: A Documentary Sourcebook of Constitutions, Declarations,
Addresses, Resolutions, and Toasts. Westport, Conn.: Greenwood.
Hagen, Eric W. 1996. United States v. Lopez: Artificial
Respiration for the Tenth Amendment. Pepperdine Law Review 23 (May):
Hayne, Robert Y. 1830. Speech of Mr. Hayne of South Carolina in the
Senate of the United States January 21, 1830. Portland.
Houston, David Franklin.  1967. A Critical Study of
Nullification in South Carolina. Reprint. New York: Russell and Russell.
Jaffa, Harry V. 1994. Original Intent and the Framers of the
Constitution: A Disputed Question. Washington, D.C.: Regnery Gateway.
Jefferson, Thomas. 1853. The Writings of Thomas Jefferson. Edited
by H. A. Washington. Vol. 3. Washington, D.C.: Taylor and Maury.
---------. 1854a. The Writings of Thomas Jefferson. Edited by H.
A. Washington. Vol 4. Washington, D.C.: Taylor and Maury.
---------. 1854b. The Writings of Thomas Jefferson. Edited by H.
A. Washington. Vol. 7. Washington, D.C.: Taylor and Maury.
---------. 1943. The Complete Jefferson. Edited by Saul K.
Padover. New York: Duell, Sloan, and Pierce.
Ketcham, Ralph L. 1963. France and American Politics, 1763-1793.
Political Science Quarterly 78 (June): 198-222.
Kilpatrick, James Jackson. 1957. The Sovereign States: Notes of a
Citizen of Virginia. Chicago: Regnery.
Koch, Adriene. 1950. Jefferson and Madison: The Great Collaboration.
New York: Knopf.
Koch, Adriene, and Harry Ammon. 1948. The Virginia and Kentucky
Resolutions: An Episode in Jefferson's and Madison's Defense of Civil
Liberties. William and Mary Quarterly 5 (April): 145-76.
Levy, Leonard W. 1985. Emergence of a Free Press. New York:
Oxford University Press.
Madison, James. 1910. The Writings of James Madison. Edited by
Gaillard Hunt. Vol. 9. New York: Knickerbocker Press.
---------. 1991. The Papers of James Madison. Edited by David B.
Martin. Vol. 17. Charlottesville: University of Virginia Press.
Madison, James, Alexander Hamilton, and John Jay.  1982. The
Federalist Papers. Edited by Gary Wills. Reprint. New York: Bantam Books.
Malone, Dumas. 1961. The Public Life of Thomas Cooper 1783-1839.
Columbia: University of South Carolina Press.
---------. 1962. Jefferson and the Ordeal of Liberty. Boston:
Mayer, David N. 1994. The Constitutional Thought of Thomas Jefferson.
Charlottesville: University Press of Virginia.
O'Brien, Conor Cruise. 1996. The Long Affair: Thomas Jefferson and
the French Revolution, 1785-1800. Chicago: University of Chicago Press.
Peterson, Merrill D. 1976. Adams and Jefferson: A Revolutionary
Dialogue. Athens: University of Georgia Press.
Quirk, William J., and Robert M. Wilcox. 1998. Judicial Tyranny and
Constitutional Change. Chronicles: A Magazine of American Culture
Schama, Simon. 1989. Citizens: A Chronicle of the French Revolution.
New York: Knopf.
Seib, Gerald F. 1995. A Silent Beast, Lurking within Budget Debates.
Wall Street Journal, November 1.
Sharp, James Roger. 1993. American Politics in the Early Republic:
The New Nation in Crisis. New Haven: Yale University Press.
Smith, James Morton. 1956. Freedom's Fetters: The Alien and Sedition
Laws and American Civil Liberties. Ithaca, N.Y.: Cornell University Press.
---------. 1970. The Grass Roots Origins of the Kentucky Resolutions.
William and Mary Quarterly 28 (April): 221-45.
Stinchcombe, William. 1980. The XYZ Affair. Westport, Conn.:
Taylor, John.  1970. Construction Construed and Constitutions
Vindicated. Reprint. New York: Da Capo Press.
Virginia Commission on Constitutional Government. 1964. We the
States: An Anthology of Historic Documents and Commentaries thereon, Expounding
the State and Federal Relationship. Richmond, Va.: William Byrd Press.
Wilson, Clyde N. 1992. Introduction to The Essential Calhoun. New
Brunswick, N.J.: Transaction Publishers.
Wilson, Woodrow. 1885. Congressional Government. New York:
Kentucky & Virginia
Resolutions | Text Version