Cyclopædia of Political Science, Political Economy, and the Political History of the United States

Edited by: Lalor, John J.
(?-1899)
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First Pub. Date
1881
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New York: Maynard, Merrill, and Co.
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1899
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Includes articles by Frédéric Bastiat, Gustave de Molinari, Henry George, J. B. Say, Francis A. Walker, and more.
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KENTUCKY AND VIRGINIA RESOLUTIONS

II.229.1

KENTUCKY AND VIRGINIA RESOLUTIONS (IN U. S. HISTORY), two series of resolutions adopted in 1798-9 by the legislatures of Kentucky and Virginia, for the purpose of defining the strict construction view, at that time, of the relative powers of the state and federal governments. (See DEMOCRATIC-REPUBLICAN PARTY, II.)

II.229.2

—The underlying reason for the preparation of these resolutions was the feeling which had been growing since 1791, that the federal party, not satisfied with the powers given to the federal government by the constitution, was endeavoring to obtain further and greater powers by strained and illegitimate interpretations of the powers which had been granted (see BANK CONTROVERSIES, II.; CONSTRUCTION); the immediate moving cause was the passage of the alien and sedition laws in 1798. (See ALIEN AND SEDITION LAWS.) Jefferson and Madison therefore prepared these two series of resolutions as a statement of the objections not only to these particular laws, but to broad construction in general.

II.229.3

—Jefferson was unwilling to appear openly in the matter, either, as his enemies charge, because of the secretiveness and underhandedness which were natural to him, or, as his friends put it, because of his punctilious regard to the requirements of his position as vice-president. He therefore intrusted the resolutions which he had prepared to George Nicholas, of the Kentucky legislature, under a solemn assurance that "it should not be known from what quarter they came" Nicholas became the reputed father of the resolutions, and it was not until December, 1821, that his son obtained from Jefferson an acknowledgement of their real authorship. The resolutions were passed by the Kentucky house, Nov. 10, 1798, and by the senate Nov. 13, and were approved by the governor Nov. 19. The Virginia resolutions were prepared by Madison, who was then a member of the legislature, were introduced by John Taylor, of Caroline, were passed by the house Dec. 21, 1798, and were passed by the senate and approved by the governor, Dec. 24. The resolutions were transmitted by the governors of the two states to the governors of the other states, to be laid before their respective legislatures. The only responses, all warmly antagonistic to the resolutions, were made by Delaware, Feb. 1, 1799, by Rhode Island in February, by Massachusetts Feb. 9, by New York March 5, by Connecticut May 9, by New Hampshire June 14, by Vermont Oct. 30; that of Massachusetts is especially long and argumentative, and fully denies the competency of any state legislature "to judge of the acts and measures of the federal government," Nov. 14, 1799, the Kentucky legislature added another resolution to its series of 1798, thus forming the so-called Kentucky resolutions of 1799. In the Virginia legislature the unfavorable answers of the other states were referred to a committee, Madison being chairman, which made, Jan. 7, the celebrated "report of 1800," explaining and defending the resolutions of 1798. With this report the formal history of the resolutions ends. They were renewed, however, in substance, by other states in later years, as by Pennsylvania in 1809, and by Massachusetts in 1814, and, oddly enough, one of the first and most emphatic repudiations of these later offsprings of the Virginia resolutions came from the Virginia legislature. How far the later doctrines of nullification and secession are the legitimate outcome of the Kentucky and Virginia resolutions will be considered after the substance of these resolutions, and the exact language of the more important ones, have been given.

II.229.4

—THE KENTUCKY RESOLUTIONS (of 1798) are nine in number, as follows: 1. "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 purpose, 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; 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 parties 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." 2. The second resolution denied the power of congress to pass laws for the punishment of any crimes except those mentioned in the constitution, and therefore declared the sedition law to be "void and of no force." 3. The third made the same declaration as to the same law on the ground of its abridgment of freedom of speech and of the press. 4. The fourth made the same declaration as to the alien law on the ground that no power over aliens had been given to the federal government by the constitution. 5. The fifth made the same declaration as to the same law on the ground that it infringed the right of the states to permit the migration of such persons as they should think proper to admit until the year 1808 6. The sixth made the same declaration as to the same law on the ground that it violated the amendments which secured "due process of law" and "public trial by an impartial jury" to accused persons, and also that it transferred the judicial power from the courts to the president. 7. The seventh complained of broad construction in general as "a fit and necessary subject for revisal and correction at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress." 8. The eighth directed the transmission of the resolutions to the state's senators and representatives in congress for the purpose of securing a repeal of the obnoxious acts. 9. The ninth directed the transmission of the resolutions to the other states, with a warning that, "if the barriers of the constitution were thus swept from us all" by an acknowledgment of the power of congress to punish crimes not enumerated in the constitution, "no rampart now remains against the passions and the power of a majority of congress," nor any power to prevent congress, which had banished the aliens, from banishing, also, "the minority of the same body, the legislatures. judges, governors, and counselors of the states, nor their other peaceable inhabitants, who may be obnoxious to the view of the president or be thought dangerous to his election or other interests, public or personal"; and it closed by asking that "the co-states, recurring to their natural rights not made federal, will concur in declaring these void and of no force, and will each unite with this commonwealth in requesting their repeal at the next session of congress." The additional Kentucky resolution of 1799, reiterated its definition of the constitution as "a compact," and declared "that the several states which formed that instrument, being sovereign and independent, have the unquestionable right to judge of the infraction; that a nullification, by those sovereignties, of all unauthorized acts, done under color of that instrument, is the rightful remedy; that, although this commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet it does, at the same time, declare that it will not now or ever hereafter cease to oppose, in a constitutional manner, every attempt, at what quarter soever offered, to violate that compact; and finally, in order that no pretext or arguments may be drawn from a supposed acquiescence, on the part of this commonwealth, in the constitutionality of those laws, and be thereby used as precedents for similar future violations of the federal compact, this commonwealth does now enter against them its solemn protest."

II.229.5

—THE VIRGINIA RESOLUTIONS were eight in number. 1. The first resolution expressed the determination of the legislature to defend the constitutions of the United States and of the state. 2. The second expressed its warm attachment to the Union. 3. "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, which 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." 4. The fourth expressed the deep regret of the assembly at the introduction of a broad construction of the constitution as inevitably tending to change the American republican system into "at best a mixed monarchy." 5. The fifth protested against the alien and sedition laws as unconstitutional. 6. The sixth called attention to the amendment protecting liberty of speech and of the press as having been originally proposed by Virginia. 7. The seventh expressed the affection of Virginia for the other states, and concluded as follows: that "the general assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional; and that the necessary and proper measures will be taken by each for co-operating with this state, in maintaining unimpaired the authorities, rights and liberties reserved to the states respectively, or to the people." 8. The eighth requested the governor to transmit the resolutions to the governors of the other states, to be laid before their legislatures, and to the Virginia senators and representatives in congress.

II.229.6

—Hardly any problem in American political history offers so many difficulties as the effort to get at a fair estimate of these two series of resolutions. The evil and the good are so complicated that disentanglement sometimes seems hopeless. On the one hand, the general spirit of the resolutions, their insistence upon the absolute illegality of anything but a strict construction of the constitution, has always been a fundamental feature of the party founded by Jefferson and Madison. Its doubtful utility is elsewhere considered; but, whether necessary or unnecessary, the doctrine is legitimate, and is one of the factors which have made up American political history to the present time. (See DEMOCRATIC-REPUBLICAN PARTY, II., VI.; CONSTRUCTION.) On the other hand, the illegitimate doctrine that the American Union is a "compact" between separate and sovereign states is so clearly, even "peremptorily," laid down in both series of resolutions that it can not be mistaken or evaded. The historical truth of this doctrine is elsewhere considered (see NATION, STATE SOVEREIGNTY); it remains here only to consider the difference between the state sovereignty of Jefferson and Madison, and that of the nullificationists and secessionists of later times. It is difficult to follow, at the best, and is still more obscured by the course of Benton and other later Jeffersonians in flatly denying that the sovereignty of states, proprio vigore, is asserted in the resolutions. By so doing, they made an issue on which Calhoun and Calhoun's disciples found no difficulty in overthrowing them. It does not seem to have occurred to them that the issue might perhaps have been fairly confessed and avoided.

II.229.7

—Before considering the question whether the term "nullification," as used by Jefferson in the Kentucky resolution of 1799, was identical with the same word as used by Calhoun, it is well to notice how carefully both the Kentucky and the Virginia resolutions avoid any suggestion of action by a single state. They certainly maintain the doctrine that "each state acceded to the Union as a state, and is an integral party" to the "compact under the style and title of a constitution for the United States"; and from this doctrine the Calhoun programme derives its justification. But, in the application of the doctrine by Jefferson and Madison, it is always "those sovereignties" which are to undo unconstitutional laws—"the states," not "a state"; and practically the Jeffersonian doctrine seems to have been that there were but two parties to the "compact," the states of the one part, and the federal government of the other, and that the former in national convention were to be frequently assembled to decide on the constitutionality of the latter's acts. Webster, long afterward, ridiculed unsparingly the idea that the states could form a compact with another party which was only created by the compact, and non-existent before it; and Calhoun's theory that the "compact" was between the states themselves, and that the federal government was the result of it and not a party to it, seems more logical than Jefferson's. Logical or illogical, however, Jefferson's theory was infinitely less destructive than Calhoun's; was strictly in line of constitutional practice; and is perfectly in accord with the constitution's provisions for its own amendment. The state sovereignty preamble in the first Kentucky resolution, and third Virginia resolution, is not essential, and is, in fact, only a hindrance, to the spirit of the resolutions, which is simply that desire for a national convention of the states which has since been the first thought of all Jefferson's disciples in times of difficulty or danger. This Jeffersonian idea of the ultimate interpreter of doubtful constitutional questions can not be more strongly put than in Jefferson's own words, in his letter of June 12, 1823, to Justice Johnson: "The ultimate arbiter is the people of the Union, assembled by their deputies in convention, at the call of congress, or of two-thirds of the states. Let them decide to which they mean to give an authority claimed by two of their organs."

II.229.8

—Though state sovereignty was by no means essential as a basis for the resolutions, it was the shortest and easiest way to justify them. It is therefore important to notice that in the hands of Jefferson and Madison state sovereignty, separate or collective, was to be a shield for the protection of the individual; in the hands of Calhoun it was to be a shield for a section and for slavery. The distinction is not trivial; it is vital, as can be seen most easily from its necessary results. It is difficult to conceive of an act involving individual rights, which an American congress could be induced to pass, so arbitrary and tyrannical as to lead a state, or even a group of states, beyond declamation and resolutions, and into open conflict with the federal government. Even the development of so-called "sections" would hardly have been likely to make even state sovereignty anything more than a check, and a very weak one, upon the federal government, so long as the country was reasonably homogeneous and each state had separate interests. But the development of slavery as a distinctive badge of a particular section made state sovereignty, for the section, really sectional sovereignty, since all its states were controlled by a common design. While each state tended to its own particular direction, the total force exerted was fairly balanced and comparatively harmless; when the force of a group of states became bound together by slavery, state sovereignty became an imminent peril to union. The Jackson and Benton school of democrats seem to have had this distinction in mind when they so warmly denied that which seems so difficult to deny, the identity of Jefferson's and Calhoun's state sovereignty. It is apparent, however, that the distinction is one of purpose, not of substance. (See SLAVERY, STATE SOVEREIGNTY.)

II.229.9

—It has been stated that the great object of state opposition to federal enactments, in the minds of Jefferson and Madison, was to secure the meeting of a national convention of all the states, in which, as the highest exponent of national authority, the federal enactment would be valid unless declared void, or "nullified," by an amendment which when ratified by three-fourths of the states, should bind not only congress and the executive, but the judiciary as well. Such a convention has been a desideratum with Jefferson's party at intervals since 1787. and, as it is provided for in the constitution, it would be a perfectly legitimate mode of procedure; but the difficulty of uniting the necessary proportion (two-thirds) of the states in the demand for it has as yet proved insuperable. This seems undoubtedly to have been the "nullification" intended by the Virginia resolutions. 1, from the debates upon them in the Virginia assembly which passed them, and 2, from the remarks of the "report of 1800" upon the third Virginia resolution. Jefferson, not being the avowed author of the Kentucky resolutions, has left no defense or explanation of them, but a line of citations is given among the authorities at the end of this article, illustrative of his adherence to the general position that "the states" (in national convention) were the final interpreters of the constitution. The objection to this statement of the main object of the resolutions is that, as such a convention is provided for in the constitution, its defense by a state legislature was a work of supererogation. In this respect it is well to compare the proceedings of the British parliament in 1792-3, which the reader will find well stated by Yonge, as cited below: that body had passed an alien bill, a sedition bill (suspending the habeas corpus act), and a bill authorizing magistrates to disperse by force any public meeting to petition the king or parliament, or to discuss grievances, if the object or the language should to the magistrates seem dangerous. The American congress had followed the first two steps of the British precedent (excepting the habeas corpus suspension): to follow it out in full nothing was needed but a temporary forgetfulness of the difference between the unlimited power of parliament and the limited power of congress. To Madison and Jefferson the common federalist claim that the federal government was the "final" judge of its own powers seemed to be a paving of the way for some such politic forgetfulness, and for a possibly indirect prohibition of any new national convention: hence the resolutions. Their descendants have found that the small percentage of the voting population, which can, by a change of vote, overturn the dominant party in congress, is a better guarantee against congressional usurpation than all the resolutions of our history: Madison and Jefferson, with only ten years experience behind them, may fairly be held excusable for seeing no refuge from congress but the state legislatures.

II.229.10

—It can not, however, be doubted that Jefferson and his school would have looked upon forcible resistance by a single state to an oppressive federal law with far less disapproval than their opponents would have done (see NATION, I.), though it is just as certain that they would have looked upon such resistance as a revolutionary right. It was so stated in 1829-30 by Edward Livingston, the devoted adherent of Jefferson in 1798 and of Jackson in 1833 (see NULLIFICATION), as cited below. In a constitutional point of view, this fundamental difference between the right of "the states" in national convention, and of a single state, proprio vigore, to "nullify" acts of congress, and to interpret the constitution, above and beyond the federal judiciary, is the essential difference between the "nullification" of Jefferson and that of Calhoun. The strongest evidence to the contrary is a sentence in Jefferson's original draft of the Kentucky resolutions. It is as follows: "that every state has a natural right, in cases not within the compact, to nullify of their own authority all assumptions of power by others within their limits." This was struck out in the final copy of the resolutions, but by whom is not known. Various explanations of this sentence have been offered, the most plausible being that the inexcusable sentence was due only to heat of composition, and was struck out by Jefferson on his realizing the full force of what he had written. On the one hand, this sentence has arrayed against it a great mass of contemporary testimony; on the other, if it is to stand as Jefferson's perfected theory, every atom of Calhoun's theory finds in it a perfect antetype.

II.229.11

—It is also fair and proper, in this connection, to call the reader's special attention to a letter of Dec. 24, 1825, from Jefferson to Madison, which has never hitherto received the prominence which it deserves. It is on the subject of internal improvements. He regards opposition to the new system as "desperate," but proposes a new series of resolutions, to be passed by the Virginia legislature, as a protest against it. They are much like the resolutions of 1798, but conclude by demanding an amendment to the constitution, to grant the doubtful power (see INTERNAL IMPROVEMENTS), and by promising for the state and imposing upon the citizens of the state an acquiescence in the acts which we have declared to be usurpations" "until the legislature shall otherwise and ultimately decide."

II.229.12

—The above has been given, so far as possible, with a due regard to the standpoint and feelings of the republicans of 1798. There remains now to be considered the opening assertion of both series of resolutions, that the American Union is a "compact" between the several states. No one, not the most unreasoning admirer of Jefferson or Madison, can now defend this assertion, which is the great political error of the resolutions. (For its further consideration seeSTATE SOVEREIGNTY.) Even if it were true, the doctrine of nullification would not necessarily or properly flow from it; but the doctrine of secession is too plainly based upon it to make it an easy or profitable task to attempt to separate the two. (See NULLIFICATION, SECESSION.) It is not meant that Jefferson and Madison were secessionists: the following considerations may perhaps make the meaning more clear 1. The idea that the Union is a compact is not at all essential to either series of resolutions; but it is the sum and substance of secession. Its elimination could have had no effect upon the former, but would have made the latter an impossibility, except as a confessed revolution. 2. The date of the resolutions was less than ten years after the inauguration of the new form of government, and at a time when the idea of a "compact" was common in political language, in judicial decisions, and elsewhere. The term was a political weapon ready for use by all political leaders of all sections, and was used without any great consideration of its full results. There is infinitely more excuse for such an error in the infancy of the nation than in 1860. 3. The belief in a real "compact" was rapidly and easily eliminated in the due course of nature during the following sixty years, as its utter uselessness became apparent, except in a single section, where the interests of slavery demanded its retention and extension to its complete logical results. Even where the word was used in other sections of the Union, it was used rather as a venerable formula, signifying a particularist feeling, than with any full sense of a meaning; and its users were as much shocked in 1860 as its earlier users would have been, when its complete consequences were forced upon them. (See NATION.)

II.229.13

—As a summary, it may be said that the resolutions of both series are a protest against a supposed intention of the federalists to place some restrictions upon any attempt of state legislatures to demand a national convention to sit in judgment upon the acts of the federal government; that the belief in such an intention was fostered by the federalists' use of the then novel word "sovereign," as applied to the federal government, and by their constant assertions that the federal government was the "final" judge of the extent of its own powers, thus seeming to exclude any such power in a new national convention; that both Jefferson and Madison intended, 1, to appeal to public opinion, and 2, to rouse the states for a prompt call for a national convention upon the first appearance of an attempt by congress and the president to make such legislative action penal under a new sedition law; that the word "compact" in the resolutions, though unessential, is historically false and indefensible, if used in its full sense; that, as regards Madison, it is quite clear that the word was not used in its full sense; and that, as regards Jefferson, the case is much more doubtful, but may fairly be summed up in the terms of his proposed resolutions of 1825, before referred to—a theoretical acceptance of the idea of a compact in its full sense, coupled with an intense aversion to its practical enforcement.

II.229.14

—See 5 Hildreth's United States, 272; 1 von Holst's United States, 144; 2 Spencer's United States, 444; 1 Schouler's United States, 423, 424 (note); 4 Elliot's Debates, 528 (Va. Res.), 532 (answers of other states). 540 (Ky. Res.), 546 (Report of 1800); 3 Jefferson's Works (edit. 1829), 452, 4: 163, 306, 344, 374, 418 (Resolutions of 1825), 422; 9 Jefferson's Works (edit. 1853), 469; 2 Randall's Life of Jefferson, 449 and App. D; 1 Benton's Thirty Years' View, 347; Hunt's Life of Livingston, 345; 2 Benton's Debates of Congress, 373; Nicolson's Debates in the Virginia Assembly of 1798; Yonge's Constitutional History of England, end of chapter iv ; 1 Stephens' War Between the States, 441; Story's Commentaries, § 1289 (note); 3 Webster's Works, 448; Duer's Constitutional Jurisprudence (2d edit.), 412; 1 Adams' Works of John Adams, 561; and authorities under STATE SOVEREIGNTY; NULLIFICATION; SECESSION; DEMOCRATIC-REPUBLICAN PARTY, II.; CONSTITUTION, IV.

ALEXANDER JOHNSTON

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