The debates on ratification of the Constitution were not so much over whether a constitution for a federal union of some kind ought to the adopted, as over the perceived defects in the constitution proposed by the Philadelphia Convention of 1787, whether those defects were serious enough to justify rejecting the proposal and calling a new convention, or whether the proposed constitution should be adopted and then amended to correct the defects. It was also a debate over construction of many of the provisions of the proposed constitution. The proponents of ratification prevailed by assuring the opponents that amendments would be adopted to correct most of the defects, and by assuring them concerning how the language of the proposed constitution was to be understood and interpreted.
Fulfillment of the first assurances was achieved by proposal and adoption of the first ten amendments to the Constitution, called the Bill of Rights, and for a time, during the administration of George Washington, and while many of the Founders held seats in Congress, the interpretive assurances were fulfilled by the care they took to keep legislation in compliance with the original understanding. However, during the administration of John Adams, many of the original proponents of ratification formed a dominant faction, led by Alexander Hamilton, which came to be called Federalists, who proceeded to propose and adopt legislation which violated the assurances concerning construction of the Constitution, most notably the Alien and Sedition Acts of 1798. They were opposed by a faction which came to be called Republicans, led by Thomas Jefferson and James Madison.
It was not just the passage or enforcement of these acts that was a problem. Elements of the Federalist faction began to engage in a kind of reign of terror, inciting mobs to attack Republican newspapers, such as the Philadelphia Aurora, and drive their publishers into hiding. The mail of Republicans was often opened, leading Jefferson and others to resort to covert methods to protect themselves.
Jefferson and Madison led the reaction to these excesses. Jefferson drafted, anonymously, a set of resolutions that were introduced in the legislature of the newly admitted state of Kentucky, which after some debate, were adopted with only minor revisions Nov. 10, 1798, which came to be called the Kentucky Resolutions of 1798. Madison drafted a similar but shorter resolution which was introduced in the Virginia Legislature by John Taylor, and after some debate, adopted Dec. 21, 1798, which came to be called the Virginia Resolutions of 1798. These resolutions set forth the doctrine of constitutional construction, which came to be called the "Doctrine of '98", which they considered the Alien and Sedition Acts to have violated.
The most controversial element of this doctrine was its apparent implication of the doctrine of interposition that the states had the power to declare unconstitutional a federal act which violated the Constitution, and forbid, as an official act of the state, the enforcement of the offending act within the territory of that state. It was argued by some that the Constitution was a compact of states, rather than a legislative act of the people, and as such each member state retained the power to withdraw from the compact if it were violated, either partially, by nullification of an offending act, or entirely, by secession.
Understanding the Kentucky and Virginia Resolutions to maintain the doctrine of interposition, many other states adopted counter-resolutions arguing against that doctrine, and some even held the Alien and Sedition Acts to be constitutional. The need for clarification on this point led Jefferson to have introduced in the Kentucky Legislature a second, shorter, clarifying resolution which was adopted as the Kentucky Resolutions of 1799. In Virginia, Madison issued what was called the Virginia Report, and was called by some Madison's Report, which further clarified the doctrine.
In the final clarification of Madison, the Doctrine of '98 does not maintain that the Constitution is a compact of states, but is the legislative act of the people, voting by state, and that while a state government does not have the power to nullify an unconstitutional federal act as an official act of that state, it can adopt a resolution expressing an opinion that such act is unconstitutional, and urging individuals not to comply with that unconstitutional act. In other words, on an issue of the constitutionality of a federal act, a state government may only urge, and not coerce, defiance of an unconstitutional act.
Madison's clarification did not lay to rest the state compact doctrine, which was further developed by John C. Calhoun and others into a "States Rights" doctrine that led to secession and the Civil War of 1861-65. It persists among many to this day, although it is fundamentally flawed as a matter of history. This does not mean, however, that other contentions of persons holding this doctrine are invalid, because they do not properly rest on the state compact theory, but on the limited delegated powers doctrine represented by the Ninth and Tenth Amendments.
The Doctrine of '98, properly understood and grounded, is a valuable guide to interpretation of the Constitution in accordance with the original understanding of the Founders and the assurances concerning construction that were the basis for ratification and which therefore are an unwritten part of the Constitution. The documents which comprise it stand as a manifesto of constitutionalism, strict constructionism, or originalism, and are comparable in importance to Madison's Notes on the Debates in the Federal Convention, the Federalist Papers, and the ratification Debates in the Several State Conventions, collected and published by Jonathan Elliott. It has several key components:
The main documents which set forth this doctrine are found in the following collections:
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