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Kentucky and Virginia Resolutions

The Kentucky and Virginia Resolutions were statements issued by the Kentucky and Virginia legislatures in response to the four federal Alien and Sedition Acts of 1798.1 Congress passed the four acts during the Quasi-War between the United States and France.

The Kentucky and Virginia Resolutions declared that the several states are united by compact under the Constitution, that the Constitution limits federal authority to certain enumerated powers, that congressional acts exceeding those powers are infractions of the Constitution, and that each state has the right and duty to determine the constitutionality of federal laws. Both the Kentucky Resolutions and the Virginia Resolutions encouraged the other fourteen states to concur in declaring that the Alien and Sedition Acts were unconstitutional.

Thomas Jefferson drafted the Kentucky Resolutions of 1798.2 They were introduced in the Kentucky House of Representatives by John Breckinridge. In November 1798, the Kentucky General Assembly passed Jefferson’s resolutions in modified form.3 James Madison prepared the Virginia Resolutions. They were sponsored in the Virginia House of Delegates by John Taylor. The Virginia General Assembly passed Madison’s resolutions in December 1798.4

At the time of their passage, authorship of both documents was known to only a few close associates.5 Secrecy was necessary because Jefferson himself, the nation’s vice president, might be charged with sedition if he or his closest political ally openly announced that congressional acts were unconstitutional. The two men, however, were not alone in their outrage over the Alien and Sedition Acts. The state of Kentucky, for example, was reported as “unanimous in execrating the measures.”6 In Virginia, the Freeholders of Prince Edward County addressed disapproval of “the odious alien and sedition bills” directly to President John Adams.7

Because of the need for secrecy, no written records describe the evolution of the resolutions. Throughout the spring of 1798, Jefferson apprised Madison of congressional debate concerning “a citizen bill, an alien bill, & a sedition bill.” Jefferson interpreted the alien bill as an intentional Federalist threat to foreign-born supporters of the Republican party. The sedition bill, he was certain, was purposefully designed to suppress Republican presses.8 On philosophical grounds, Jefferson deplored the measures, describing them to Madison as “palpably in the teeth of the constitution” and an encroachment on rights protected by the First Amendment.9

A strategy for opposing the offensive laws must have been developed when the two men met in person during the summer and fall of 1798.10 In mid-November, Jefferson sent Madison a draft copy of the document that would become the Kentucky Resolutions. “I think we should distinctly affirm all the important principles they contain,” he  advised, “so as to hold to that ground in future.”11

Though the extent of consultation remains unknown, the documents produced were clearly different from one another. Jefferson employed bolder language than that used by Madison. Jefferson’s Kentucky Resolutions stated that when the federal government “assumes undelegated powers, its acts are unauthoritative, void, and of no force.” Jefferson’s original wording had gone even further. “[W]here powers are assumed which have not been delegated,” he contended, “a nullification of the act is the rightful remedy.”12 Jefferson’s references to nullification were eliminated by the Kentuckians. Madison’s Virginia Resolutions were more temperate. They asserted that the states were “duty bound, to interpose” whenever the federal government assumed “a deliberate, palpable and dangerous exercise” of powers not granted by the Constitution.13 Madison did not prescribe the form of interposition. He purposefully used “general expressions,” freeing the other states to consider “all the modes possible” for concurring with Virginia.14

The Kentucky and Virginia Resolutions garnered support from none of the other fourteen states. Four states made no response and ten states expressed outright disapproval.15 Some specifically maintained that the judiciary branch, not the state legislatures, was responsible for determining questions of constitutionality. In response to the criticism from other states, Virginia’s Report of 1800 and the Kentucky Resolutions of 1799 were passed.16 James Madison, as a new member of the House of Delegates, produced Virginia’s Report of 1800. He defended the Virginia Resolutions and warned against the transformation of “the republican system of the United States into a monarchy.”17 The Kentucky Resolutions of 1799 are of uncertain authorship, but revived Jefferson’s nullification language, asserting that “the several states who formed [the Constitution] ... have the unquestionable right to judge of its infraction; and, That a nullification ... of all unauthorized acts ... is the rightful remedy.”18

Though the other states rejected the Kentucky and Virginia Resolutions, the measures served effectively as political propaganda and helped unite the Republican party.19 In 1800, the Republican candidate, Thomas Jefferson, would win the presidency. Meanwhile, tensions between France and the United States subsided, allowing the Sedition Act to expire in 1800 and the Alien Friends Act to expire in 1801. The Naturalization Act of 1798 was repealed by Congress in 1802. The Alien Enemies Act, applicable only in wartime, remains in effect.

-Nancy Verell, 4/6/2015

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