Kentucky Resolutions of 1798 - History

Kentucky Resolutions of 1798 - History

1. Resolved, 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; 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.

2. Resolved, 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 offences against the laws 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, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled "An Act in Addition to the Act entitled 'An Act for the Punishment of certain Crimes against the United States;'" as also the act passed by them on the 27th day of June, 1798, entitled "An Act to punish Frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, 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;" and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of ]judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press," thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others, —and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled "An Act in Addition to the Act entitled 'An Act for the Punishment of certain Crimes against the United States,'" which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the state wherein they are; that no power over them has been delegated to the United States, nor prohibited to the individual states, distinct from their power over citizens; 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," the act of the Congress of the United States, passed on the 22d day of July, 1798, entitled "An Act concerning Aliens," which assumes powers over alien friends not delegated by the Constitution, is not law, but is altogether void and of no force.

5. Resolved. That, in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution from abundant caution, has declared, "that the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808." That this commonwealth does admit the migration of alien friends described as the subject of the said act concerning aliens; that a provision against prohibiting their migration is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them, when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by the said act entitled, "An Act concerning Aliens," is contrary to the Constitution, one amendment in which has provided, that "no person shall be deprived of liberty without due progress of law;" and that another having provided, "that, in all criminal prosecutions, the accused shall enjoy the right of a public trial by an impartial jury, to be informed as to the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have assistance of counsel for his defence," the same act undertaking to authorize the President to remove a person out of the United States who is under the protection of the law, on his own suspicion, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favor, without defence, without counsel—contrary to these provisions also of the Constitution—is therefore not law, but utterly void, and of no force.

That transferring the power of judging any person who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides, that "the judicial power of the United States shall be vested in the courts, the judges of which shall hold their offices during good behavior," and that the said act is void for that reason also; and it is further to be noted that this transfer of judiciary power is to that magistrate of the general government who already possesses all the executive, and a qualified negative on all legislative powers.

7. Resolved, That the construction applied by the general government (as is evident by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress power to lay and collect taxes, duties, imposts, excises; to pay the debts, and provide for the common defence and general welfare, of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the government of the United States, or any department thereof, goes to the destruction of all limits prescribed to their powers by the Constitution; that words meant by the instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be taken as to destroy the whole residue of the instrument; that the proceedings of the general government, under color of those articles, will be 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. Resolved, That the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are enjoined to present the same to their respective houses, and to use their best endeavors to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.

9. Resolved, lastly, That the governor of this commonwealth be, and is, authorized and requested to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth considers union for special national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity, of all the states; that, faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation; that it does also believe, that, to take from the states all the powers of self-government and transfer them to a general and consolidated government, without regard to the special government, and reservations solemnly agreed to in that compact, is not for the peace, happiness, or prosperity of these states; and that, therefore, this commonwealth is determined, as it doubts not its co-states are, to submit to undelegated and consequently unlimited powers in no man, or body of men, on earth; that, if the acts before specified should stand, these conclusions would flow from them—that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction; that a very numerous and valuable description of the inhabitants of these states, being, by this precedent, reduced, as outlaws, to absolute dominion of one man, and the barriers of the Constitution thus swept from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation, or other grievous punishment, the minority of the same body, the legislatures, judges, governors, and counsellors of the states, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the states and people, or who for other causes, good or bad, may be obnoxious to the view, or marked by the suspicions, of the President, or be thought dangerous to his or their elections, or other interests, public or personal; that the friendless alien has been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather has already followed; for already has a Sedition Act marked him as a prey: That these and successive acts of the same character, unless arrested on the threshold, may tend to 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; that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights; that confidence is every where the parent of despotism; free government is founded in jealousy, and not in confidence; it is jealousy, and not confidence, which prescribes limited constitutions to bind down those whom we are obliged to trust with power; that our Constitution has accordingly fixed the limits to which, and no farther, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition Acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits; let him say what the government is, if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection; that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice.

In questions of power, then, let no more be said of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-states for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment to limited government, whether general or particular, and that the rights and liberties of their co-states will be exposed to no dangers by remaining embarked on a common bottom with their own; but they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever. That they will view this as seizing the rights of the states, and consolidating them in the hands of the general government, with a power assumed to bind the states, not merely in cases made federal, but in all cases whatsoever, by laws made, not with their consent, but by others against their consent; that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and 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.


Kentucky Resolutions of 1798 - History

IN THE HOUSE OF REPRESENTATIVES,

T HE House, according to the standing order of the day, resolved itself into a committee of the whole on the state of the commonwealth, Mr. Caldwell in the chair and after some time spent therein, the Speaker resumed the chair, and Mr. Caldwell reported that the committee had, according to order, had under consideration the Governor's address, and had come to the following resolutions thereupon, which he delivered in at the clerk's table, where they were twice read and agreed to by the House.

1. Resolved, 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 the 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. Resolved, 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 offences against the laws of nations, and no other crimes whatever, 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, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled, "an act in addition to the act entitled, an act for the punishment of certain crimes against the United States" as also the act passed by them on the 27th day of June, 1798, entitled, "an act to punish frauds committed on the Bank of the United States," (and all other their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution,) are altogether void, and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, 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" and that no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the states, all lawful powers respecting the same did of right remain, and were reserved to the states, or to the people that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed and thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same. as this state by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference: and that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that " Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press," thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamations, equally with heresy and false religion, are withheld from the cognizance of federal tribunals: that therefore the act of the Congress of the United States, passed on the 14th day of July, 1798, entitled, "an act in addition to the act for the punishment of certain crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void and of no effect.

4. Resolved, That alien-friends are under the jurisdiction and protection of the laws of the state wherein they are that no power over them has been delegated to the United States, nor prohibited to the individual states distinct from their power over citizens 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," the act of the Congress of the United States, passed on the 22d day of June, 1798, entitled "an act concerning aliens," which assumes power over alien-friends not delegated by the Constitution, is not law, but is altogether void and of no force.

5. Resolved, That in addition to the general principle as well as the express declaration, that powers not delegated are reserved, another and more special provision inserted in the Constitution, from abundant caution, has declared, "that the migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808:" that this commonwealth does admit the migration of alien-friends described as the subject of the said act concerning aliens that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory that to remove them when migrated, is equivalent to a prohibition of their migration, and is therefore contrary to the said provision of the Constitution, and void.

6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President, to depart out of the United States, as is undertaken by the said act, entitled "an act concerning aliens," is contrary to the Constitution, one amendment to which has provided, that "no person shall be deprived of liberty without due process of law," and that another having provided, "that in all criminal prosecutions, the accused shall enjoy the right to a public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favour, and to have the assistance of counsel for his defence," the same act undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without having witnesses in his favour, without defence, without counsel, is contrary to these provisions, also, of the Constitution, is therefore not law, but utterly void and of no force.

That transferring the power of judging any person who is under the protection of the laws, from the courts to the President of the United States, as is undertaken by the same act, concerning aliens, is against the article of the Constitution which provides, that "the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behaviour," and that the said act is void for that reason also and it is further to be noted, that this transfer of judiciary power is to that magistrate of the General Government, who already possesses all the executive, and a qualified negative in all the legislative powers.

7. Resolved, That the construction applied by the General Government, (as is evinced by sundry of their proceedings,) to those parts of the Constitution of the United States which delegates to Congress a power to lay and collect taxes, duties, imposts, and excises to pay the debts, and provide for the common defence and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department thereof, goes to the destruction of all the limits prescribed to their power by the Constitution: that words meant by that instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken, as to destroy the whole residue of the instrument: that the proceedings of the General Government under colour of these articles, will be 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. Resolved, That the preceding resolutions be transmitted to the senators and representatives in Congress from this commonwealth, who are hereby enjoined to present the same to their respective houses, and to use their best endeavours to procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.

9. Resolved, lastly, That the Governor of this commonwealth be, and is hereby authorized and requested to communicate the preceding resolutions to the legislatures of the several states, to assure them that this commonwealth considers union for specified national purposes, and particularly for those specified in their late federal compact, to be friendly to the peace, happiness, and prosperity of all the states: that, faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation : that it does also believe, that to take from the states all the powers of self-government, and transfer them to a general and consolidated government, without regard to the special obligations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these states: and that therefore, this commonwealth is determined, as it doubts not its co-states are, tamely to submit to undelegated and consequently unlimited powers in no man or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them that the general government may place any act they think proper on the list of crimes, and punish it themselves, whether enumerated or not enumerated by the Constitution, as cognizable by them that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction that a very numerous and valuable description of the inhabitants of these states being, by this precedent, reduced as outlaws to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the power of a majority of Congress, to protect from a like exportation or other more grievous punishment the minority of the same body, the legislatures, judges, governors, and counsellors of the states, nor their other peaceable inhabitants who may venture to reclaim the constitutional rights and liberties of the states and people, or who, for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their elections, or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment but the citizen will soon follow, or rather has already followed for, already has a sedition-act marked him as its prey: that these and successive acts of the same character, unless arrested on the threshold, may tend to 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: that it would be a dangerous delusion, were a confidence in the men of our choice, to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism free government is founded in jealousy, and not in confidence it is jealousy and not confidence which prescribes limited constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go and let the honest advocate of confidence read the alien and sedition-acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits? Let him say what the government is if it be not a tyranny, which the men of our choice have conferred on the President, and the President of our choice has assented to and accepted, over the friendly strangers, to whom the mild spirit of our country and its laws had pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President, than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. 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. That this commonwealth does, therefore, call on its co-states for an expression of their sentiments on the acts concerning aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the Federal compact. And it doubts not that their sense will be so announced, as to prove their attachment unaltered to limited government, whether general or particular, and that the rights and liberties of their co-states, will be exposed to no dangers by remaining embarked on a common bottom with their own: That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution, as to amount to an undisguised declaration, that the compact is not meant to be the measure of the powers of the general government, but that it will proceed in the exercise over these states of all powers whatsoever: That they will view this as seizing the rights of the states, and consolidating them in the hands of the general government with a power assumed to bind the states, (not merely in cases made federal,) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of government we have chosen, and to live under one deriving its powers from its own will, and not from our authority and that the co-states, recurring to their natural right in cases not made federal, 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.


Kentucky Resolution of 1799

THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted. To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended be as unnecessary as unavailing.

We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument. Our opinions of those alarming measures of the general government, together with our reasons for those opinions, were detailed with decency and with temper, and submitted to the discussion and judgment of our fellow citizens throughout the Union. Whether the decency and temper have been observed in the answers of most of those states who have denied or attempted to obviate the great truths contained in those resolutions, we have now only to submit to a candid world. Faithful to the true principles of the federal union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation.

Least however the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced and attempted to be maintained by the said answers, or least those of our fellow citizens throughout the Union, who so widely differ from us on those important subjects, should be deluded by the expectation, that we shall be deterred from what we conceive our duty or shrink from the principles contained in those resolutions: therefore.

RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, 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 colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: 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, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact:

AND FINALLY, in order that no pretexts 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 federal compact this commonwealth does now enter against them, its SOLEMN PROTEST.

Approved December 3rd, 1799.

Also see the Kentucky Resolutions of 1798 adopted by the Kentucky Legislature a year before, and the Virginia Resolution of 1798, authored by James Madison, for the same purpose.


Kentucky Resolutions of 1798

1. Resolved, 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 a 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 part, its co-States forming, as to itself, the other party: that the 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.

2. Resolved, 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, not 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 intituled “An Act in addition to the act intituled 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, intituled “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 and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.

3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people” and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. 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,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.

5. Resolved. That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.

6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act intituled “An Act concerning aliens” is contrary to the Constitution, one amendment to which has provided that “no person shalt be deprived of liberty without due progress of law” and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws from the courts, to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior” and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.

7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.

8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States: to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly, to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact, and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them that the general government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no ramparts now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal that the friendless alien has indeed been selected as the safest subject of a first experiment but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is founded in jealousy, and not in confidence it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits, Let him say what the government is, if it be not a tyranny, which the men of our choice have con erred on our President, and the President of our choice has assented to, and accepted over the friendly stranger to whom the mild spirit of our country and its law have pledged hospitality and protection: that the men of our choice have more respected the bare suspicion of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, weather general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each 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, shalt be exercised within their respective territories.

9th. Resolved, That the said committee be authorized to communicate by writing or personal conference, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them and that they lay their proceedings before the next session of Assembly.


Today in History: Kentucky Resolutions Passed on Nov. 10, 1798

That was the central question facing the ratifying conventions as America considered adopting the new Constitution. Those in favor of ratification swore it would. But many remained skeptical, arguing that the new general government would undoubtedly try to expand its power and that the Constitution would not sufficiently restrain it.

It only took a decade for the federal government to prove the anti-federalists right.

During the summer of 1798, Congress passed, and President John Adams signed into law, four acts together known as the Alien and Sedition Acts. With winds of war blowing across the Atlantic, the Federalist Party majority wrote the laws to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear of the French to stir up support for these draconian laws, expanding federal power, concentrating authority in the executive branch and severely restricting freedom of speech.

Two of the Alien Acts gave the president the power to declare foreign U.S. residents an enemy, lock them up and deport them. These acts vested judicial authority in the executive branch and obliterated due process. The Sedition Act essentially outlawed criticizing the federal government – a clear violation of the First Amendment.

Recognizing the grave danger these acts posed to the basic constitutional structure, Thomas Jefferson and James Madison drafted resolutions that were passed by the Kentucky and Virginia legislatures on Nov. 10 and Dec. 21, 1798, respectively. The “Principles of ’98” formalized the principles of nullification as the rightful remedy when the federal government oversteps its authority.

The Alien and Sedition Acts outraged many in Kentucky. Several counties in the Commonwealth adopted resolutions condemning the acts, including Fayette, Clark, Bourbon, Madison and Woodford. A Madison County Kentucky militia regiment issued an ominous resolution of its own, stating, “The Alien and Sedition Bills are an infringement of the Constitution and of natural rights, and that we cannot approve or submit to them.” Several thousand people gathered at an outdoor meeting protesting the acts in Lexington on August 13.

The push to nullify the Alien and Sedition Acts was not simply the act of opportunistic politicians. It rose out of the passionate demands of the citizenry in Kentucky, as well as Virginia.

Jefferson penned the original draft of the Kentucky Resolutions within a month of Congress passing the Sedition Act.

“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 a 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.”

After outlining each constitutional violation and overreach of federal power, Jefferson called for action – nullify now!

“Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.” [Emphasis added]

Jefferson sent former Virginia ratifying convention delegate Wilson Cary Nicholas a draft of the resolution, likely hoping the state legislator could get them introduced in Virginia. In October, 1798, Wilson indicated that state representative John Breckinridge was willing to introduce the resolutions in Kentucky. Breckinridge suffered from tuberculosis and made a recuperative trip to Sweet Springs, Va. late in August of that year. Nicholas likely gave the Kentucky lawmaker a copy of Jefferson’s draft during that trip.

On Nov. 7, 1798, Gov. James Garrard addressed the Kentucky state legislature, noting the vehement opposition to the Alien and Sedition Acts. He said Kentucky was, “if not in a state of insurrection, yet utterly disaffected to the federal government.” And noted that the state “being deeply interested in the conduct of the national government, must have a right to applaud or to censure that government, when applause or censure becomes its due,” urging the legislature to reaffirm its support of the U.S. Constitution while, “entering your protest against all unconstitutional laws and impolitic proceedings.”

That same day, Breckinridge announced to the House he intended to submit resolutions addressing Garrard’s message. The following day, the Fayette County lawmaker followed through, introducing an amended version of Jefferson’s draft. Most notably, Breckinridge omitted the word nullification from the actual version considered by the Kentucky legislature, seeking to moderate the tone of the resolution. Removal of the nullification reference apparently didn’t bother Jefferson, and in fact, did little to change the fundamental thrust of the resolution. By declaring the Alien and Sedition Acts unconstitutional, null and void, the Kentucky legislature voted on a nullification resolution, even with the actual word omitted.

The resolution passed the House on Nov. 10 with only three dissenting votes. The Senate unanimously concurred three days later, and Gov. Garrard signed the resolution on Nov. 16.

Kentucky followed up with a second resolution affirming its position in 1799, notably including the word “nullification,” omitted in the final version of the Kentucky Resolutions of 1798 passed by the state legislature.

“The several states who formed that instrument (the Constitution), 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.”

Jefferson’s principles have endured for over 220 years despite relentless attacks and demagoguery. Americans have appealed to the ideas brilliantly articulated in the Kentucky Resolutions to protect free speech, to promote economic justice, to stop military conscription and to protect the rights of blacks during the fugitive slave era.

Jefferson’s words leave no doubt – nullification was the rightful remedy, and it remains so today.

Author’s Note: Much of this article was excerpted from “Our Last Hope: Rediscovering the Lost Path to Liberty.” Pick up a copy at the Tenth Amendment Center store HERE.


Kentucky and Virginia Resolutions

The Kentucky and Virginia Resolutions (or Resolves) were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional. The resolutions argued that the states had the right and the duty to declare unconstitutional any acts of Congress that were not authorized by the Constitution. In doing so, they argued for states' rights and strict constructionism of the Constitution. The Kentucky and Virginia Resolutions of 1798 were written secretly by Vice President Thomas Jefferson and James Madison, respectively.

The principles stated in the resolutions became known as the "Principles of '98". Adherents argue that the states can 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 by the states is the proper remedy. The Virginia Resolutions of 1798 refer to "interposition" to express the idea that the states have a right to "interpose" to prevent harm caused by unconstitutional laws. The Virginia Resolutions contemplate joint action by the states.

The Resolutions had been controversial since their passage, eliciting disapproval from ten state legislatures. Historian Ron Chernow assessed the theoretical damage of the resolutions as "deep and lasting. 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". Their influence reverberated right up to the Civil War and beyond. 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 and President Andrew Jackson opposing them. Years later, the passage of the Fugitive Slave Act of 1850 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.


217th Anniversary of Signing of Kentucky Resolution of 1798: What We’ve Forgotten

On this day, November 16, 217 years ago, Governor James Garrard of Kentucky signed into law the first of two landmark pieces of legislation known to history as the Kentucky Resolutions.

The first bill was passed by tthe Kentucky state House on November 10, 1798 and by the Senate on November 13. The bill was then signed into law by Governor Garrard three days later.

As is widely known, the Kentucky Resolution of 1798 was authored by Thomas Jefferson (shown), while a companion measure introduced in the Virginia state assembly was written by his frequent collaborator, James Madison.

The measures were reactions by the two first-tier Founders to the enactment by President John Adams of the Alien and Sedition Acts during the summer of 1798.

Those pernicious pieces of legislation (four acts in all) granted the federal government new and expansive powers. The so-called Alien Acts were used by the president to declare foreign residents in the United States to be enemies of the state and to have them jailed and deported. The Sedition Acts, on the other hand, endowed the president with the power to outlaw and punish any criticism of the Adams administration considered by the executive branch to be “seditious.”

The former “laws” obliterated due process while the latter violated the right of Americans to speak freely and to criticize the government, as protected by the First Amendment.

The summer before the passage of the Sedition Act, a strong-arm tactic taken by John Adams against a political adversary hit Thomas Jefferson very close to home: the prosecution of Samuel Jordan Cabell. It was one of the events that eventually compelled him to pen the principles of nullification in 1798.

Samuel Jordan Cabell was a congressman representing Thomas Jefferson’s home district in Virginia. In May 1797 a grand jury returned a presentment of libel against Cabell (incidentally, as a delegate to the Virginia ratifying convention, Cabell voted against ratification of the Constitution). What was Cabell’s crime? He sent a letter to constituents criticizing the administration of John Adams.

That’s it. That was the sum of his seditious plot. A letter to voters in his district calling out some act of the president with which he disagreed.

For this effrontery to his authority, John Adams charged Cabell with “endeavoring at a time of real public danger to disseminate unfounded calumnies against the happy government of the United States.”

That was Samuel Jordan Cabell’s predicament — caught in the spokes of a federal conspiracy — until Thomas Jefferson learned of the grand jury’s action. In response to the presentment handed down against his congressman, Jefferson anonymously (for even the author of the Declaration of Independence feared being found openly questioning the national government) petitioned the Virginia House of Delegates asking that the members of the grand jury be punished.

Upon learning of Jefferson’s petition in defense of Cabell, James Monroe counseled his fellow Virginian that he would be better off making his request to Congress instead of the state government. Jefferson’s response makes it clear what the Sage of Monticello thought of Monroe’s understanding of the true seat of sovereignty. He knew that “the system of the General Government is to seize all doubtful ground.” If the people were to sit still, would we lose everything, he warned.

Who did Jefferson believe had the right and the responsibility to protect citizens from federal abuse of power? The states. “It is of immense consequence that the States retain as complete authority as possible over their own citizens,” he wrote.

From this masterfully crafted letter in response to Monroe, we see that before he penned his views on the proper constitutional relationship between state and national government in the Kentucky Resolutions, Jefferson understood, shared, and promoted the principle of state authority to check federal overreaching.

Within a month of Congress’s passage of the Sedition Act, Jefferson had written the first draft of the Kentucky Resolution, declaring in its first paragraph:

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 a 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.

Then, as he did in the Declaration of Independence, Jefferson lays out the manifold violations of the Constitution committed by the federal government.

Next, he proposed a sound solution to the tyranny:

Therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.

Kentucky’s state lawmakers and governor agreed. In fact, on November 7, 1798, Governor Garrard spoke to the members of the Kentucky Legislature, rehearsing to them the strident opposition to the Alien and Sedition Acts already enacted by many of the commonwealth’s counties.

Garrard warned the representatives that Kentuckians were “utterly disaffected to the federal government.” He said that Kentucky and all states retain the power to “applaud or to censure that government, when applause or censure becomes its due.” He concluded his remarks by encouraging the state legislators to reaffirm their commitment to the union and to the Constitution by firmly renouncing “all unconstitutional laws and impolitic proceedings” of the federal government.

After reading the Kentucky and Virginia Resolutions, one wonders why in the last decade or so since the beginning of the undeclared but never ending “War on Terror,” has there been no wholesale multi-state repudiation of warrantless wiretapping, warrantless pat-downs at airports, warrantless death by drone, warrantless GPS tracking of cars, the near abolition of habeas corpus and codification of the indefinite detention of American citizens without due process of law.

Why have the states so completely and meekly abdicated their rightful position of power?

Why have they deserted their posts as sentinels set to watch for the approaching advance of federal absolutism?

Why do Americans look to Washington for cures to diseases bred by the swarms of would-be dictators that infest that former swamp?

Why do we sit idly by as congressmen, courts, and the president conspire to reduce our state governments to mere colonies of the federal empire?

Are state lawmakers and governors now so accustomed to their servitude that a benign stupor is their only reaction to the placement by the federal government of tighter and tighter chains around their necks?

Nullification, as defined by Jefferson in the Kentucky Resolution of 1798, is the most powerful weapon against the federal assault on state sovereignty and individual liberty. As Jefferson explained, states, as creators of the federal government, have the authority to nullify any act of the federal government that exceeds the constitutional boundaries of its delegated powers.

By applying the principles Jefferson expounded in that seminal document, states could simultaneously rebuild the walls of sovereignty once protected by the Constitution, in particular the 10th Amendment, and drive the forces of federal consolidation back to the banks of the Potomac.


Kentucky Resolutions of 1798 - History

The Power of Independent Thinking

Because the United States was founded as a constitutional republic—one based on certain specific principles, not power or privilege—Americans of all eras frequently raise concerns about federal authority that bear resemblance to debates from earlier times in our history.

A good illustration of this “echo effect” in American politics is the renewed discussion about nullification, prompted by recent headline news: Kim Davis and her refusal to issue marriage licenses to gay couples “sanctuary cities” where local officials decline to cooperate with the feds in turning over illegal aliens and Oregon’s legalization of recreational marijuana last month in spite of the prohibitions of the federal Controlled Substances Act.

These episodes call to mind one of the most important cases of nullification in U.S. history: the Kentucky and Virginia Resolutions of 1798, the topic of my book Reclaiming the American Revolution, the first to have been written about this vital episode in more than a century.

In the summer of 1798, amidst fears that the United States would soon be at war with France, Congress enacted the Alien and Sedition Acts. The Acts prohibited criticism of the federal government and gave President John Adams the power to deport any alien he deemed suspicious. This legislation made a mockery of the First Amendment and deprived aliens of basic due process of law.

To combat these constitutional usurpations, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions. In these Resolutions, Jefferson and Madison accused Congress of exceeding its powers and declared the Alien and Sedition Acts null and void. Times were so tense that Jefferson and Madison hid the fact of their authorship because they feared prosecution under the Sedition Act.

Kentucky’s full legislature adopted their state’s Resolution—which called the Acts “unauthoritative, void, and of no force”—in November of 1798. A month later, Virginia followed by declaring its solemn duty to “interpose” to protect the people from the enforcement of the Acts.

At first the American people applauded the Alien and Sedition Acts, but in the elections of 1800 they threw out of office many lawmakers who had voted for them. Jefferson was elected to the presidency, and he suspended all prosecutions brought under these shameful measures. This so-called “Revolution of 1800” brought the crisis of the Alien and Sedition Acts to a close.

From Jefferson and Madison’s correspondence about the Resolutions, and other instances of nullification in early American history, we glean several important lessons. First, as Madison wrote in his Virginia Resolution, state interposition should be used only “in case of a deliberate, palpable, and dangerous” violation of the Constitution. It should not be unsheathed for mere policy disagreements or unwise laws.

Second, the idea of nullification rests on the sovereignty of the people of the several states and cannot rightly be implemented by a mere elected official or legislature. The people exercise their ultimate sovereignty in conventions that are specially elected for this purpose. The best example of this is the ratification of the U.S. Constitution. The Framers would not accept a decision on the Constitution from the state legislatures, but instead instructed the states to hold individual conventions for the express purpose of considering the Constitution and exercising sovereign power. South Carolina held such a special convention in 1832 when it nullified the Tariff of Abominations.

Third, nullification does not create two sets of laws: one for the Union and one for the state that declares a measure void via a convention. The offending law is suspended within the state, but only until, as per Article V of the Constitution, three quarters of the states summon a constitutional convention to determine whether or not to confer the contested power on the federal government. If a constitutional amendment is adopted conferring the power, the nullifying state must obey or abandon the Union.

Finally, nullification is not just a Southern, states’ rights doctrine. The principles of the Kentucky and Virginia Resolutions have been appealed to by states from all parts of the Union: Pennsylvania, Massachusetts,Ohio, Wisconsin, and others.

Measuring the acts of Kim Davis, sanctuary cities, and Oregon by these standards, we see that there has been no real nullification in the Jeffersonian and Madisonian sense. Individuals, officials, and states are protesting federal laws and policies, but there has been no nullification.

Protests, of course, can be healthy. They encourage the people to ponder and discuss liberty and the bounds set by the Constitution on the national government.

Sadly, few Americans know about the Kentucky and Virginia Resolutions and the heroic fight against the Alien and Sedition Acts. With the 217th anniversary of the Kentucky Resolution, we would be well advised to reflect on the controversy of 1798 and the lessons offered for today.


Thoughts on the Virginia and Kentucky Resolutions of 1798

I’ve become thoroughly depressed by current events lately, so I’ve decided instead to go back to reading more American history. I’ve always respected the men and women of the founding generation: their bravery and fierce independent streak laid the foundation for the America we know today, for better or worse. Even though the U.S. Constitution is a deeply flawed document that led to the biggest and most intrusive government in world history, it wasn’t originally so.

In 2015, Gallup, a leading polling and analytics firm, found that 60% of Americans believed the federal government had too much power. Given the federal government’s penchant for expanding their own scope and authority, that figure shouldn’t be surprising. What may be surprising, though, is that the debate over federal power goes back much further than many realize, all the way back to the founding generation.

In 1798, when President John Adams and the Federalist Congress passed the Alien and Sedition Acts, many believed them to be a violation of the federal government’s clearly defined powers outlined in the U.S. Constitution. Shortly after its passage, several private citizens critical of the federalist government found themselves charged, indicted, convicted, jailed and fined in federal courts, which by that time were packed with federalist judges. In response, James Madison and Thomas Jefferson drafted the Virginia and Kentucky Resolutions of 1798, respectively.

In the Virginia Resolution, Madison re-emphasizes where the powers of the federal government come from, as well as defends the right of the states to “interpose” themselves between the federal government and the “authorities, rights and liberties” of the states and the people. Effectively, Madison argues that the states have the right to determine the constitutionality of any federal laws and in so doing, the states are “duty bound” to stop any abuses of the federal government. The reason is simple: the states created the federal government and delegated its powers in the constitution and, as a result, the states have the duty to keep the powers of the federal government in check.

Madison’s view that the states have the power to determine the constitutionality of federal laws, as well as openly defy them if necessary, is certainly at odds with the modern day American understanding of U.S. Government. Most people see the role of determining the constitutionality of federal laws as exclusively under the purview of the federal court system. This view, taught in all government schools, fundamentally misunderstands the constitution as it was ratified by the states. The founders, as evidenced by the 9 th and 10 th amendments, viewed the states as a final check on the power of the three branches of federal government.

Madison wrote, “the “Alien and Sedition Acts” passed at the last session of Congress the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government.” (Emphasis mine.) Madison rightly saw that the tendency of the federal government to join together and expand power at the direct expense of the states was “inevitable” and would eventually lead to back to monarchy. The independent states offered the best defense against such an expansion of federal power.

Thomas Jefferson, in the Kentucky Resolution, echoes Madison’s concerns over the consolidation and expansion of federal power. He writes, “the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism since the discretion of those who administer the government, and not the constitution, would be the measure of their powers”. Jefferson understood that federal courts would ultimately side with the federal government in matters of its authority, but even Jefferson couldn’t have imagined how prescient his words have become.

Regarding the rights of the states, Jefferson’s language was even stronger than Madison’s. Where Madison claimed the states were “duty bound” to oppose unconstitutional federal power, Jefferson writes, with no equivocation, that the states, who formed the constitution, are “sovereign and independent” and have the “unquestionable right” to determine the constitutionality of federal acts. Furthermore, Jefferson argues, the “rightful remedy” to such an infraction is “nullification” that is, for the states to invalidate any federal acts it has deemed unconstitutional.

What the Virginia and Kentucky Resolutions show is that the struggle over the size and scope of the central government is nothing new in American political culture. In fact, it is the struggle that defined the revolutionary period and the creation of the United States. Unfortunately, those who have argued against increased federal power have long been on the losing side. While the states have largely been content to trade their sovereignty and independence for federal tax dollars, the words of Madison and Jefferson should serve as a wake up call to anyone who believes in self-determination and individual liberty.


Resolutions seen as examples of the doctrine of nullification

During the nullification crisis of the early 1830s over the federal tariff, states&rsquo rights figures such as John Calhoun and Robert Hayne explicitly cited the Virginia and Kentucky Resolutions as early exemplifications of their theory that a state legislature could declare federal laws null and void within its own borders. Calhoun argued in much the same manner as found in the resolutions that the states formed a compact with each other, delegating specific powers to the federal government and that, therefore, the states ultimately were the judges of the Constitution.

A senior statesman at the time, Madison fought back against the appropriation of the resolutions to the cause of nullification. He argued that context was all-important and that the dangers of the Alien and Sedition Acts should not be compared to the inconveniences of a tariff. Madison also stressed the difference between a state legislature voicing an opinion and its making a self-executing decision. The resolutions were not designed to disrupt the execution of federal law in the state but rather to declare the official opinion of the state and hopefully rally support of other states. While the states collectively might repulse the federal government, Madison did not believe that a single state had the authority to nullify federal law within its own borders. Backing away from the doctrinal wording of the resolutions, Madison argued that they were designed only to ferment popular opinion against the laws and lead to an electoral victory against the Federalists. Both of these acts are cognizable within the Constitution and do not suggest an extraconstitutional right of a single state against the federal government.


Watch the video: The Kentucky and Virginia Resolutions - SR