![James Madison](https://upload.wikimedia.org/wikipedia/commons/1/1d/James_Madison.jpg)
The Virginia and Kentucky Resolutions were political statements drafted in 1798 and 1799 in which the
Kentucky
Kentucky ( , ), officially the Commonwealth of Kentucky, is a state in the Southeastern region of the United States and one of the states of the Upper South. It borders Illinois, Indiana, and Ohio to the north; West Virginia and Virginia ...
and
Virginia
Virginia, officially the Commonwealth of Virginia, is a state in the Mid-Atlantic and Southeastern regions of the United States, between the Atlantic Coast and the Appalachian Mountains. The geography and climate of the Commonwealth ar ...
legislatures took the position that the federal
Alien and Sedition Acts
The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
were unconstitutional. The resolutions argued that the states had the right and the duty to declare
unconstitutional
Constitutionality is said to be the condition of acting in accordance with an applicable constitution; "Webster On Line" the status of a law, a procedure, or an act's accordance with the laws or set forth in the applicable constitution. When l ...
those acts of Congress that the Constitution did not authorize. In doing so, they argued for
states' rights
In American political discourse, states' rights are political powers held for the state governments rather than the federal government according to the United States Constitution, reflecting especially the enumerated powers of Congress and the ...
and
strict construction of the Constitution. The Kentucky and Virginia Resolutions of 1798 were written secretly by
Vice President
A vice president, also director in British English, is an officer in government or business who is below the president (chief executive officer) in rank. It can also refer to executive vice presidents, signifying that the vice president is on ...
Thomas Jefferson
Thomas Jefferson (April 13, 1743 – July 4, 1826) was an American statesman, diplomat, lawyer, architect, philosopher, and Founding Father who served as the third president of the United States from 1801 to 1809. He was previously the natio ...
and
James Madison
James Madison Jr. (March 16, 1751June 28, 1836) was an American statesman, diplomat, and Founding Father. He served as the fourth president of the United States from 1809 to 1817. Madison is hailed as the "Father of the Constitution" for h ...
, respectively.
The principles stated in the resolutions became known as the "
Principles of '98
The Principles of '98 refer to the American political position after 1798 that individual states could both judge the constitutionality of federal laws and decrees and refuse to enforce those that were deemed unconstitutional. That refusal is gene ...
". Adherents argued that the states could judge the constitutionality of central 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
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
by the states is the proper remedy. The Virginia Resolutions of 1798 refer to "
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
" 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
The 1800 United States presidential election was the fourth quadrennial presidential election. It was held from October 31 to December 3, 1800. In what is sometimes called the "Revolution of 1800", Vice President Thomas Jefferson of the Democra ...
and had been controversial since their passage, eliciting disapproval from ten state legislatures.
Ron Chernow
Ronald Chernow (; born March 3, 1949) is an American writer, journalist and biographer. He has written bestselling historical non-fiction biographies.
He won the 2011 Pulitzer Prize for Biography and the 2011 American History Book Prize for hi ...
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
George Washington (February 22, 1732, 1799) was an American military officer, statesman, and Founding Father who served as the first president of the United States from 1789 to 1797. Appointed by the Continental Congress as commander of ...
was so appalled by them that he told
Patrick Henry
Patrick Henry (May 29, 1736June 6, 1799) was an American attorney, planter, politician and orator known for declaring to the Second Virginia Convention (1775): " Give me liberty, or give me death!" A Founding Father, he served as the first a ...
that if "systematically and pertinaciously pursued", they would "dissolve the union or produce coercion".
Their influence reverberated right up to the
Civil War
A civil war or intrastate war is a war between organized groups within the same state (or country).
The aim of one side may be to take control of the country or a region, to achieve independence for a region, or to change government policies ...
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
The Principles of '98 refer to the American political position after 1798 that individual states could both judge the constitutionality of federal laws and decrees and refuse to enforce those that were deemed unconstitutional. That refusal is gene ...
and President
Andrew Jackson
Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, planter, general, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, he gained fame as ...
opposing them. Years later, the passage of the
Fugitive Slave Act of 1850
The Fugitive Slave Act or Fugitive Slave Law was passed by the United States Congress on September 18, 1850, as part of the Compromise of 1850 between Southern interests in slavery and Northern Free-Soilers.
The Act was one of the most con ...
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.
Provisions of the Resolutions
The resolutions opposed the federal
Alien and Sedition Acts
The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
, which extended the powers of the
federal government. They argued that the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these princ ...
was a "
compact
Compact as used in politics may refer broadly to a pact or treaty; in more specific cases it may refer to:
* Interstate compact
* Blood compact, an ancient ritual of the Philippines
* Compact government, a type of colonial rule utilized in British ...
" 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
A congress is a formal meeting of the representatives of different countries, constituent states, organizations, trade unions, political parties, or other groups. The term originated in Late Middle English to denote an encounter (meeting of ...
. 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
In United States constitutional theory, compact theory is an interpretation of the Constitution which holds that the United States was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of t ...
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 state legislature
The Kentucky General Assembly, also called the Kentucky Legislature, is the state legislature of the U.S. state of Kentucky. It comprises the Kentucky Senate and the Kentucky House of Representatives.
The General Assembly meets annually in the ...
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. Both resolutions were stewarded by
John Breckinridge John Breckinridge or Breckenridge may refer to:
* John Breckinridge (U.S. Attorney General) (1760–1806), U.S. Senator and U.S. Attorney General
* John C. Breckinridge (1821–1875), U.S. Representative and Senator, 14th Vice President of the Unit ...
who was falsely believed to have been their author.
James Madison wrote the Virginia Resolution. The
Virginia state legislature 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
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
" of unconstitutional laws, 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
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
", which had been deleted from Jefferson's draft of the 1798 Resolutions, resolving: "That the several states who formed
he Constitution
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' ...
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
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
" 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.
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.
The Resolutions joined the foundational beliefs of Jefferson's party and were used as party documents in the 1800 election. As they had been shepherded to passage in the Virginia House of Delegates by
John Taylor of Caroline
John Taylor (December 19, 1753August 21, 1824), usually called John Taylor of Caroline, was a politician and writer. He served in the Virginia House of Delegates (1779–81, 1783–85, 1796–1800) and in the United States Senate (1792–94, 1803 ...
, they became part of the heritage of the "
Old Republican
The tertium quids (sometimes shortened to quids) were various factions of the Democratic-Republican Party in the United States from 1804 to 1812.
In Latin, ''tertium quid'' means "a third something". Initially, ''quid'' was a disparaging term th ...
s". Taylor rejoiced in what the House of Delegates had made of Madison's draft: it had read the claim that the
Alien and Sedition Acts
The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
were unconstitutional as meaning that they had "no force or effect" in Virginia—that is, that they were void. Future Virginia Governor and U.S. Secretary of War
James Barbour
James Barbour (June 10, 1775 – June 7, 1842) was an American slave owner, lawyer, politician and planter. He served as a delegate from Orange County, Virginia in the Virginia General Assembly, and as speaker of the Virginia House of Delegates ...
concluded that "unconstitutional" included "void, and of no force or effect", and that Madison's textual change did not affect the meaning. Madison himself strongly denied this reading of the Resolution.
The long-term importance of the Resolutions lies not in their attack on the
Alien and Sedition Acts
The Alien and Sedition Acts were a set of four laws enacted in 1798 that applied restrictions to immigration and speech in the United States. The Naturalization Act increased the requirements to seek citizenship, the Alien Friends Act allowed th ...
, but rather in their strong statements of states' rights theory, which led to the rather different concepts of
nullification
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
and
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
.
Responses of other states
The resolutions were submitted to the other states for approval, but with no success. Seven states formally responded to Kentucky and Virginia by rejecting the Resolutions and three other states passed resolutions expressing disapproval, with the other four states taking no action. No other state affirmed the resolutions. At least six states responded to the Resolutions by taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures. For example, Vermont's resolution stated: "It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union." In
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec to the nor ...
, newspapers treated them as military threats and replied with foreshadowings of civil war. "We think it highly probable that Virginia and Kentucky will be sadly disappointed in their infernal plan of exciting insurrections and tumults," proclaimed one. The state legislature's unanimous reply was blunt:
Alexander Hamilton, then building up the army, suggested sending it into Virginia, on some "obvious pretext". Measures would be taken, Hamilton hinted to an ally in Congress, "to act upon the laws and put Virginia to the Test of resistance". At the Virginia General Assembly, delegate
John Mathews was said to have objected to the passing of the resolutions by "tearing them into pieces and trampling them underfoot."
[ Rice, Otis K. 1986. A History of Greenbrier County. Greenbrier Historical Society, p. 222]
The Report of 1800
In January 1800, the Virginia General Assembly passed the
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January ...
, a document written by Madison to respond to criticism of the Virginia Resolution by other states. The Report of 1800 reviewed and affirmed each part of the Virginia Resolution, affirming that the states have the right to declare that a federal action is unconstitutional. The Report went on to assert that a declaration of unconstitutionality by a state would be an expression of opinion, without legal effect. The purpose of such a declaration, said Madison, was to mobilize public opinion and to elicit cooperation from other states. Madison indicated that the power to make binding constitutional determinations remained in the federal courts:
Madison then argued that a state, after declaring a federal law unconstitutional, could take action by communicating with other states, attempting to enlist their support, petitioning Congress to repeal the law in question, introducing amendments to the Constitution in Congress, or calling a constitutional convention.
However, in the same document Madison explicitly argued that the states retain the ultimate power to decide about the constitutionality of the federal laws, in "extreme cases" such as the Alien and Sedition Act. The Supreme Court can decide in the last resort only in those cases which pertain to the acts of other branches of the federal government, but cannot takeover the ultimate decision-making power from the states which are the "sovereign parties" in the Constitutional compact. According to Madison states could override not only the Congressional acts, but also the decisions of the Supreme Court:
:The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another—by the judiciary as well as by the executive, or the legislature.
:
:However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
Madison later strongly denied that individual states have the right to nullify federal law.
[Madison, Jame]
"Notes, On Nullification"
Library of Congress, December, 1834.
Influence of the Resolutions
Although the
New England
New England is a region comprising six states in the Northeastern United States: Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, and Vermont. It is bordered by the state of New York (state), New York to the west and by the Can ...
states rejected the Kentucky and Virginia Resolutions in 1798–99, several years later, the state governments of
Massachusetts
Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
,
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its capita ...
, and
Rhode Island
Rhode Island (, like ''road'') is a state in the New England region of the Northeastern United States. It is the smallest U.S. state by area and the seventh-least populous, with slightly fewer than 1.1 million residents as of 2020, but it ...
threatened to ignore the
Embargo Act of 1807
The Embargo Act of 1807 was a general trade embargo on all foreign nations that was enacted by the United States Congress. As a successor or replacement law for the 1806 Non-importation Act and passed as the Napoleonic Wars continued, it repr ...
based on the authority of states to stand up to laws deemed by those states to be unconstitutional. Rhode Island justified its position on the embargo act based on the explicit language of
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
. However, none of these states actually passed a resolution nullifying the Embargo Act. Instead, they challenged it in court, appealed to Congress for its repeal, and proposed several constitutional amendments.
Several years later, Massachusetts and Connecticut asserted their right to test constitutionality when instructed to send their militias to defend the coast during the
War of 1812
The War of 1812 (18 June 1812 – 17 February 1815) was fought by the United States, United States of America and its Indigenous peoples of the Americas, indigenous allies against the United Kingdom of Great Britain and Ireland, United Kingdom ...
. Connecticut and Massachusetts questioned another embargo passed in 1813. Both states objected, including this statement from the Massachusetts legislature, or General Court:
Massachusetts and Connecticut, along with representatives of some other New England states, held a
convention in 1814 that issued a statement asserting the right of interposition. But the statement did not attempt to nullify federal law. Rather, it made an appeal to Congress to provide for the defense of New England and proposed several constitutional amendments.
The Nullification Crisis
During the "
nullification crisis" of 1828–1833,
South Carolina
)'' Animis opibusque parati'' ( for, , Latin, Prepared in mind and resources, links=no)
, anthem = " Carolina";" South Carolina On My Mind"
, Former = Province of South Carolina
, seat = Columbia
, LargestCity = Charleston
, LargestMetro = ...
passed an
Ordinance of Nullification
The Ordinance of Nullification declared the Tariffs of 1828 and 1832 null and void within the borders of the U.S. state of South Carolina, beginning on February 1, 1833. It began the Nullification Crisis. Passed by a state convention on Novembe ...
purporting to
nullify two federal tariff laws. South Carolina asserted that the
Tariff of 1828
The Tariff of 1828 was a very high protective tariff that became law in the United States in May 1828. It was a bill designed to not pass Congress because it was seen by free trade supporters as hurting both industry and farming, but surprising ...
and the
Tariff of 1832
The Tariff of 1832 (22nd Congress, session 1, ch. 227, , enacted July 14, 1832) was a protectionist tariff in the United States. Enacted under Andrew Jackson's presidency, it was largely written by former President John Quincy Adams, who had b ...
were beyond the authority of the Constitution, and therefore were "null, void, and no law, nor binding upon this State, its officers or citizens".
Andrew Jackson
Andrew Jackson (March 15, 1767 – June 8, 1845) was an American lawyer, planter, general, and statesman who served as the seventh president of the United States from 1829 to 1837. Before being elected to the presidency, he gained fame as ...
issued a proclamation against the doctrine of nullification, stating: "I consider ... the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." He also denied the right to secede: "The Constitution ... forms a government not a league. ... To say that any State may at pleasure secede from the Union is to say that the United States is not a nation."
James Madison also opposed South Carolina's position on nullification. Madison argued that he had never intended his Virginia Resolution to suggest that each individual state had the power to nullify an act of Congress. Madison wrote: "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined." Madison explained that when the Virginia Legislature passed the Virginia Resolution, the "interposition" it contemplated was "a concurring and cooperating interposition of the States, not that of a single State. ...
e Legislature expressly disclaimed the idea that a declaration of a State, that a law of the U. S. was unconstitutional, had the effect of annulling the law."
Madison went on to argue that the purpose of the Virginia Resolution had been to elicit cooperation by the other states in seeking change through means provided in the Constitution, such as amendment.
The compact theory
The Supreme Court rejected the
compact theory
In United States constitutional theory, compact theory is an interpretation of the Constitution which holds that the United States was formed through a compact agreed upon by all the states, and that the federal government is thus a creation of t ...
in several nineteenth century cases, undermining the basis for the Kentucky and Virginia resolutions. In cases such as ''
Martin v. Hunter's Lessee'', ''
McCulloch v. Maryland'', and ''
Texas v. White
''Texas v. White'', 74 U.S. (7 Wall.) 700 (1869), was a case argued before the United States Supreme Court in 1869. The case involved a claim by the Reconstruction government of Texas that United States bonds owned by Texas since 1850 had been ill ...
'', the Court asserted that the Constitution was established directly by the people, rather than being a compact among the states.
Abraham Lincoln
Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation thro ...
also rejected the compact theory saying the Constitution was a binding contract among the states and no contract can be changed unilaterally by one party.
School desegregation
In 1954, the
Supreme Court decided ''
Brown v. Board of Education
''Brown v. Board of Education of Topeka'', 347 U.S. 483 (1954), was a landmark decision by the U.S. Supreme Court, which ruled that U.S. state laws establishing racial segregation in public schools are unconstitutional, even if the segrega ...
'', which ruled that segregated schools violate the Constitution. Many people in southern states strongly opposed the ''Brown'' decision.
James J. Kilpatrick, an editor of the ''Richmond News Leader'', wrote a series of editorials urging "massive resistance" to integration of the schools. Kilpatrick, relying on the Virginia Resolution, revived the idea of
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
by the states as a constitutional basis for resisting federal government action. A number of southern states, including Arkansas, Louisiana, Virginia, and Florida, subsequently passed
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
and
nullification
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
laws in an effort to prevent integration of their schools.
In the case of ''
Cooper v. Aaron
''Cooper v. Aaron'', 358 U.S. 1 (1958), was a landmark decision of the Supreme Court of the United States, which denied the school board of Little Rock, Arkansas, the right to delay racial desegregation for 30 months. On September 12, 1958, th ...
'', the Supreme Court unanimously rejected Arkansas' effort to use
nullification
Nullification may refer to:
* Nullification (U.S. Constitution), a legal theory that a state has the right to nullify any federal law deemed unconstitutional with respect to the United States Constitution
* Nullification Crisis, the 1832 confront ...
and
interposition
Interposition is a claimed right of a U.S. state to oppose actions of the federal government that the state deems unconstitutional. Under the theory of interposition, a state assumes the right to "interpose" itself between the federal government a ...
. The Supreme Court held that under the
Supremacy Clause
The Supremacy Clause of the Constitution of the United States ( Article VI, Clause 2) establishes that the Constitution, federal laws made pursuant to it, and treaties made under its authority, constitute the "supreme Law of the Land", and thu ...
, federal law was controlling and the states did not have the power to evade the application of federal law. The Court specifically rejected the contention that Arkansas' legislature and governor had the power to nullify the ''Brown'' decision.
In a similar case arising from Louisiana's interposition act, ''Bush v. Orleans Parish School Board'', the Supreme Court affirmed the decision of a federal district court that rejected interposition. The district court stated: "The conclusion is clear that interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, 'it amounted to no more than a protest, an escape valve through which the legislators blew off steam to relieve their tensions.' ... However solemn or spirited, interposition resolutions have no legal efficacy."
Importance of the Resolutions
Merrill Peterson
Merrill Daniel Peterson (31 March 1921 – 23 September 2009) was a history professor at the University of Virginia and the editor of the prestigious Library of America edition of the selected writings of Thomas Jefferson. Peterson wrote several bo ...
, Jefferson's otherwise very favorable biographer, emphasizes the negative long-term impact of the Resolutions, calling them "dangerous" and a product of "hysteria":
Jefferson's biographer
Dumas Malone
Dumas Malone (January 10, 1892 – December 27, 1986) was an American historian, biographer, and editor noted for his six-volume biography on Thomas Jefferson, '' Jefferson and His Time'', for which he received the 1975 Pulitzer Prize for history ...
argued that the Kentucky resolution might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold", the Alien and Sedition Acts would "necessarily drive these states into revolution and blood." Historian Ron Chernow says of this "he wasn't calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president." Jefferson "thus set forth a radical doctrine of states' rights that effectively undermined the constitution."
Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves.
Historian
Garry Wills
Garry Wills (born May 22, 1934) is an American author, journalist, political philosopher, and historian, specializing in American history, politics, and religion, especially the history of the Catholic Church. He won a Pulitzer Prize for Genera ...
argued "Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided
lien and seditionlaws, which were soon rendered feckless by ridicule and electoral pressure".
[Wills, Gary. "James Madison". p49] The theoretical damage of the Kentucky and Virginia resolutions was "deep and lasting, and was a recipe for disunion".
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".
The influence of Jefferson's doctrine of states' rights reverberated right up to the Civil War and beyond.
Future president
James Garfield, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".
References
Further reading
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* Bird, Wendell. "Reassessing Responses to the Virginia and Kentucky Resolutions: New Evidence from the Tennessee and Georgia Resolutions and from Other States," ''Journal of the Early Republic'' 35#4 (Winter 2015)
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Gutzman, Kevin, "'O, What a Tangled Web We Weave ... ': James Madison and the Compound Republic", Continuity 22 (1998), 19–29.
* Gutzman, Kevin, "A Troublesome Legacy: James Madison and the 'Principles of '98,'" Journal of the Early Republic 15 (1995), 569–89.
* Gutzman, Kevin., "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the _Real Laws_ of Our Country,'" Journal of Southern History 66 (2000), 473–96.
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External links
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Text of the Kentucky Resolutions of 1798
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Text of Virginia Resolutions of 1798
**Answers from
Delaware
Delaware ( ) is a state in the Mid-Atlantic region of the United States, bordering Maryland to its south and west; Pennsylvania to its north; and New Jersey and the Atlantic Ocean to its east. The state takes its name from the adjacent Del ...
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Rhode Island
Rhode Island (, like ''road'') is a state in the New England region of the Northeastern United States. It is the smallest U.S. state by area and the seventh-least populous, with slightly fewer than 1.1 million residents as of 2020, but it ...
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Massachusetts
Massachusetts (Massachusett: ''Muhsachuweesut Massachusett_writing_systems.html" ;"title="nowiki/> məhswatʃəwiːsət.html" ;"title="Massachusett writing systems">məhswatʃəwiːsət">Massachusett writing systems">məhswatʃəwiːsət'' En ...
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New York (also to Kentucky),
Connecticut
Connecticut () is the southernmost state in the New England region of the Northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, New York to the west, and Long Island Sound to the south. Its capita ...
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New Hampshire
New Hampshire is a state in the New England region of the northeastern United States. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Gulf of Maine to the east, and the Canadian province of Quebec to the nor ...
(also to Kentucky), and
Vermont
Vermont () is a state in the northeast New England region of the United States. Vermont is bordered by the states of Massachusetts to the south, New Hampshire to the east, and New York to the west, and the Canadian province of Quebec to ...
.
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Text of the Kentucky Resolutions of 1799
James Madison, Report on the Virginia ResolutionsThe Address of the Minority in the Virginia Legislature to the People of that State, Containing a Vindication of the Constitutionality of the Alien and Sedition Laws(1799)
{{DEFAULTSORT:Kentucky And Virginia Resolutions
1798 in American law
Federalism in the United States
United States resolutions