Kentucky and Virginia Resolutions - History

1807 Leopard vs Chesapeake

The British frigate "Leopard" intercepted the US frigate "Chesapeake" as it was leaving Hampton Roads for the Mediterranean. The "Leopard" demanded to search the "Chesapeake" for deserters. When the American commander refused, the "Leopard" opened fire on the unsuspecting American frigate, forcing her to surrender. The British removed four sailors, one of whom they hung. The incident almost started a war with Great Britain, but war was avoided and instead Jefferson followed the route of embargoing foreign trade,

In early 1807, a British squadron was stationed off the coast of Virginia. They were there primarily to intercept French frigates, which had taken refuge in Annapolis, Maryland. From time to time, the British vessels made use of American port facilities. British sailors were constantly deserting their ships. This became a major irritant to the British. Three deserters were said to have enlisted on the American naval frigate "Chesapeake." The British protested, and the Secretary of Navy ordered an inquiry. This inquiry confirmed that three deserters from the "Melampus" had indeed enlisted on the "Chesapeake," but it was determined that the sailors were Americans who had been illegally impressed. This was transmitted to the British, and the matter seemed to be at an end.

Nevertheless, the British commander in charge of the North Atlantic issued an order to search the "Chesapeake" for deserters, if the ship were encountered at sea. The "Chesapeake" was commanded by Captain Charles Gordon, and had Commodore Barron on board. On June 22, the ship departed from Hampton Roads, headed for the Mediterranean Sea. At 3:30 p.m., the British frigate the "Leopard" came down before the wind. The crew hailed the "Chesapeake," stating that it had dispatches for the Commodore Barron. Barron replied "We will heave to and you can send your boat on board of us." At 3:45 p.m., the "Leopard's" Lieutenant Meade arrived with the following note demanding that the British deserters be turned over.

Since the deserters from the Melampus were not on the list submitted, Captain Gordon believed that his assurance would suffice, and sent back a stern reply to the British.

After the British officer had departed, Barron showed the notes to his other officers. While he felt that the matters was closed, he realized that some show of strength was appropriate. Therefore, Barron ordered Gordon to clear the gun deck. Unfortunately, it took 30 minutes to prepare the "Chesapeake" for battle, and the British officer returned to the ship only five minutes later. Barron was hailed. Trying to obtain more time for his crew, Barron replied that he did not understand. The "Leopard" then fired two shots across the "Chesapeake's" bow, followed by whole broadside at nearly point blank range. The "Leopard then poured two more broadsides into the "Chesapeake," while it was still unready to respond. Commodore Barron then ordered the flag to be struck. Several British officers then came aboard and seized the three Americans deserters from the Melampus. They also found a true British deserter, named Jenkin Ratford, who was serving under an assumed name. Ratford was later hung.

The attack on the "Chesapeake" stirred America into a war fervor. If anyone but Jefferson had been President, this incident would probably have been enough to begin a war.

Kentucky and Virginia Resolutions - History

United States History
Question of the Day
Answer & Explanation

Kentucky & Virginia Resolutions

The Alien & Sediton Acts led to an
angry response from Democrat-Republicans
(Image Source: Library of Congress)

The Federalist-sponsored Alien & Sedition Acts led to Thomas Jefferson and James Madison drafting the Kentucky and Virginia Resolutions, both of which asserted that the power to determine the authority of an act of Congress rested in

(A) the states
(B) Congress
(C) the Supreme Court
(D) town meetings
(E) the President

Nullification, the concept that states had the right to disobey laws of Congress they felt unconstitutional, was first articulated in the Kentucky and Virginia Resolutions as a response to the Alien and Sedition Acts. Jefferson and Madison established a theory of the relationship of states to the federal government that became the foundation for the states' rights movement leading to the secession of Southern states in 1860.


A set of proposals formulated bythomas jeffersonand approved by the state legislature of Kentucky during 1798 and 1799 in opposition to the enactment of thealien and sedition acts(1 Stat. 566, 570, 577, 596) by Congress.

The Kentucky Resolutions attacked the validity of the Alien and Sedition Acts, the enactment of which were a reaction to the turbulent political climate of France during the late 1700s following the French Revolution. The acts imposed strict residency requirements in order to attain U.S. citizenship, empowered the president to deport or incarcerate aliens who were considered "dangerous," and permitted the criminal prosecution of persons who made critical or seditious speeches or writings against the government. The resolutions advocated a strict constructionist view of the federal government which treated the Constitution as an agreement reached among the states as to the particular powers to be exercised by the central government. The federal government could not act in any way unless specifically authorized to do so in the Constitution. The enactment of the Alien and Sedition Acts was considered to be beyond the powers of Congress and, therefore, the acts were void. The resolutions represented the exercise of the right of the state of Kentucky to declare the acts void through nullification (the declaration that such laws were not legally enforceable).

A comparable series of proposals, the Virginia Resolutions, drawn by james madison, and approved by the Virginia legislature in 1798, treated the Alien and Sedition Acts in a similar fashion.

Both the Kentucky and Virginia Resolutions did not meet with any real success when presented to other states for adoption. They were, however, significant in American legal history because they embodied the clash between two competing principles of government—states' rights versus federalism.

The Resolutions

Thomas Jefferson and James Madison secretly collaborated in writing different resolutions of protest. [1] These were given to allies and passed by the state legislatures of Virginia and Kentucky, but other states refused to pass similar resolutions. Indeed several states denounced the resolutions as unconstitutional. Both resolutions not only condemned the Alien and Sedition Acts as unconstitutional They went to claim that individual states could nullify federal laws deemed to be unconstitutional. Madison's Virginia Resolutions, which pronounced the compact theory, were relatively milder in terms than Jefferson's Kentucky Resolutions, which explicitly stated states' rights to nullification.

The Alien and Sedition Acts either expired or were repealed from 1800 to 1802, after Jefferson was elected to the presidency.

Ray City History Blog

In 1834, William A. Knight, Levi J. Knight, Hamilton W. Sharpe, John Blackshear, John McLean, John E. Tucker, William Smith led the effort to form a State Rights Association at Franklinville, GA, then seat of Lowndes County. Lowndes, at that time included most of present day Berrien County, and the community settled by Wiregrass pioneer Levi J. Knight which would become known as Ray City, GA. The following year, the citizens of Lowndes again met to toast States Rights at Franklinville on Independence Day(1835) In 1836, they would designate their new county seat as Troupville, in honor of “the great apostle of state rights,” George M. Troup.

The State Rights Party of Georgia had been launched in 1833 by prominent leaders of the Troup party, including John M. Berrien, George R. Gilmer, William H. Crawford, William C. Dawson, and Augustin S. Clayton. The State Rights activists were committed to the notion that individual states could exercise nullification of federal laws which they found objectionable, although this doctrine was condemned by the Legislature of Georgia and other state governments. Furthermore, according to the State Rights supporters, individual states where bound by the Constitution only to the extent that they found agreeable states could secede from the Union at will. These ideas emerged in response the Alien and Sedition Acts – a sort of 17th century version of the Homeland Security Act – which the Federalists enacted as war with France loomed on the horizon.

According to the Library of Congress:

Signed into law by President John Adams in 1798, the Alien and Sedition Acts consisted of four laws passed by the Federalist-controlled Congress as America prepared for war with France. These acts increased the residency requirement for American citizenship from five to fourteen years, authorized the president to imprison or deport aliens considered “dangerous to the peace and safety of the United States” and restricted speech critical of the government. These laws were designed to silence and weaken the Democratic-Republican Party. Negative reaction to the Alien and Sedition Acts helped contribute to the Democratic-Republican victory in the 1800 elections. Congress repealed the Naturalization Act in 1802, while the other acts were allowed to expire.”

The infringements of the Alien and Sedition Acts had prompted Thomas Jefferson and James Madison to secretly author the Kentucky (1798) and Virginia (1799) Resolutions which first proposed the argument that state legislatures had the right to nullify Federal statutes. In these resolutions lay the seeds of disunion which culminated in the Civil War.

The 1834 convening of the State Rights activists in Lowndes County was full of rhetoric over the Virginia and Kentucky Resolutions, South Carolina’s attempts at nullification, Andrew Jackson’s Nullification Proclamation which disputed a states’ right to nullify federal law, and the subsequent Force Act, which authorized the use of military force against any state that resisted federal law.

Georgia Journal
September 3, 1834 — page 3

According to previous arrangement, the citizens of Lowndes county friendly to State Rights met in Franklinville on the 4th of July, for the purpose of forming a State Rights Association – when, on motion, Wm Smith was called to the Chair, and John McLean appointed Secretary. The object of the meeting was then explained by Hamilton W. Sharpe, Esq. A committee of five persons, to wit: H. W. Sharpe, John Blackshear, John McLean, John E. Tucker, and Levi J. Knight, was appointed to draft a preamble expressive of the political sentiments of the meeting, and a constitution for the government of the association.

The meeting then adjourned until Friday the 1st day of August.

WM SMITH, Chairman

John McLean, Secr’y

THE STATE RIGHTS PARTY OF LOWNDES COUNTY, met pursuant to adjournment, on the first day of August, when Wm A. Knight was appointed President, Matthew Albritton and John J. Underwood Vice President, and William Smith recording Secretary and Treasurer. A committee of three persons was appointed to wait on the President, notify him of his appointment, and conduct him to the chair, after which he addressed the meeting at considerable length.

The preamble and Constitution being called for, H. W. Sharpe, from the Committee, reported the following, which was unanimously adopted.

Your Committee, to whom was confided the trust of preparing a Preamble and Constitution to be submitted to this meeting, for the formation of a State Rights association in the county of Lowndes, beg leave to submit the following:

This meeting, which is called in conformity to the request of the State Rights meeting which was formed in Milledgeville on the 13th Nov. last, is deemed by your committee to be of the utmost importance, in producing unanimity of action in suppor of these great conservative principles of State Rights hitherto of such great importance in prostrating the approaching spirit of consolidation. The triumph of those principles so much to be desired, calls loudly for the formation of local and county associations, as the best means of disseminating those great political truths maintained by the illustrious Jefferson, affirmed by the Virginia and Kentucky resolutions, and sanctioned by the purest patriots of our country. The state of political parties in Georgia, and throughout the Union, calls loudly for this concert of action to preserve all that is dear to freemen.

There seems to be a spirit abroad in the land, which is likely to fatal to constitutional liberty, and subversive of the Republican doctrines of 󈨦 and 󈨧 and in their place is sought to be established antagonist doctrines, calculated to change our political institutions, & destroy our civil rights. If these doctrines should prevail, then farewell to freedom and State Sovereignty. Then will the altar of our political faith be destroyed, and its glories extinguished.

Our opponents, to wit, the self-styled Union party of Georgia, would dissemblingly profess to accord with the views of the illustrious Jefferson, and hypocritically pretend to adopt, as the rule of their faith, the Virginia and Kentucky resolutions of 󈨦 and 󈨧. They must have forgotten that those far-famed resolutions declare: “That there being no common judge, each party has a right to judge for itself, as well as of infractions as the mode and measure of redress.” Now this is the doctrine which we profess to believe this then would have been the State Rights doctrine of the Union party, if they had gone no farther but in a subsequent Resolution, they declare that in case Congress should pass an unconstitutional law, no State has a right to judge any thing about it. How this last sentiment can be made to agree with the Virginia and Kentucky Resolutions, we leave our opponents to determine.

It is plainly deducible from the whole tenor of their proceedings, that the ultra-Federal doctrines of the Proclamation of the fatal 10th Dec. 1832, are approved and cherished. The tyrannical and despotic provisions of the Force Bill are sanctioned, its authors and supporters applauded, and the sovereignty of their own State denied. Then if these doctrines should eventually prove successful, it must result in the final overthrow of constitutional liberty, and the establishment of a consolidated despotism on the ruins of State Sovereignty.

While our opponents are thus actively and zealously engaged in disseminating and circulating these dangerous doctrines, they spare no pains in casting odium and reproach on those of us who are friends to State Rights and State Sovereignty. The terms “rebel, ”disunionist, ”traitor’ and other opprobrious epithets, are frequently applied to those who would exert their influence to arrest the Federal Government in its march towards absolute power and despotism. We, as a portion of the State Rights party of Georgia, would cast back these epithets, and say, let posterity judge who are the friends of the Union and liberty, when the transactions of the present day shall become matters of history.

We will now give our opinion of some of the leading political subjects, which seem to be the divisional line between the two parties now in Georgia.

We believe the doctrines of the Proclamation of the 10th Dec. 1832 to be radically wrong, and will have a tendency to destroy the original principles of our government, for it re-asserts the doctrines of the Federalist of former days “That the States of this Confederacy never had a separate existence that a State has no right to decide upon the constitutionality of any act of Congress, nor to arrest its progress in its own limits.

It denies the right of secession, even under the most oppressive laws, maintaining that the states have not retained their entire sovereignty, and that the allegiance of our citizens is due to the United States in the first instance, and threatening the employment of the sword and bayonet to coerce a State into submission.

The passage of the Act called the Force Bill to be a high-handed measure, unauthorized by the Constitution. The President, overlooking his former principles, demands of a submissive Congress, their sanction of these extraordinary powers and doctrines, and the means of carrying them into effect.

On no former occasion has the hand of power been exerted over the Constitution of a free country with more daring assumption.

In has, under the pretence of collecting the Revenue, at one fell swoop abolished the State governments, conferred upon the President unlimited powers, and placed at his disposal the Army, Navy, and Militia of the United States, not only to be used at his own caprice, but also authorizes him to confer this power on a deputy Marshall, or whoever he may think proper. It also give him the power to make a Custom house on a ship of war, and place it at the entrance of any harbor he amy think proper, there to exact at the mouth of a cannon, in the name of duites, the honest earnings of the laboring man, and bestow the money as a bounty upon the lordly manufacturer. The provisions of this act are a disgrace to our Statute Book, and a monumnet of the servile spirit of the 22d Congress, and should be torn from our public archives and consigned to the flames that consumed the records of the Yazoo speculation.

Your Committee, however, can but hope, that there is yet a redeeming spirit among the people of this Government, to check the rapid strides of absolute power which is threatening our institutions with a change from a Republic to a Despotism.

In order that the doctrine of State Rights and State Remedies may be promoted, we, its friends and advocates of the county of Lowndes, think it the utmost importance to organize an Association to act in concert with the Central Committee and all Associations of a similar kind.

Therefore, be it resolved, That it is expedient to form a State Rights Association based upon the doctrines of the Virginia and Kentucky Resolutions of 󈨦 and 󈨧, as put foth and contended for by Mr. Jefferson adn other republicans of that day.

In compliance with the duty imposed on your Committee, they would respectfully submit the following


Art. 1. This Association shall be known as the State Rights Association of the county of Lowndes, and have for its object the dissemination of sound political doctrine, based upon the Republican doctrine of 󈨦 and 󈨧, as put forthe by Mr. Jefferson and other patriots.

Art. 2. The offices of this Association shall be a President, two Vice Presidents, and a Secretary, who shall also act as Treasurer.

Art. 3. The President shall perform the duties which appertain to such an office in all Associations of a similar kind, and shall call meetings of the Association and appoint Committees and in his absence, one of the Vice Presidents shall preside.

Art. 4. The Secretary shall keep a correct account of the proceedings of the Association.

Art. 5. Any person may become a member of this Association by signing the Constitution.

Art. 6. This Constitution may be altered or amended by two thirds of the Association, at any annual meeting.

Art. 7. The officers of this Association shall be elected on the 4th of July in each and every year, unless it fall on the sabbath, the the Saturday preceding.

On motion of H. W. Sharpe, Esq. it was

Resolved, That the State Rights papers in Milledgeville be respectfully requested to publish the preceedings of this meeting.

Resolved, That the Editors of the Southern Recorder be directed to print one hundred copies of the Preamble and Constitution adopted by this Association for distributing among the people of this county, and forward their account for payment to the Recording Secretary.

The Association adjourned to meet at Franklinville, on Friday before the first Monday in October next.



From Georgia Journal, Sep. 3, 1834 — page 3

Georgia Journal, Sep. 3, 1834 — page 3

1834 William A. Knight elected president of Lowndes County State Rights Association at Franklinville, GA. Members include Levi J. Knight, Hamilton Sharpe, William Smith, Matthew Albritton, John J. Underwood, John McLean, John E. Tucker, John Blackshear

1834 William A. Knight elected president of Lowndes County State Rights Association at Franklinville, GA. Members include Levi J. Knight, Hamilton Sharpe, William Smith, Matthew Albritton, John J. Underwood, John McLean, John E. Tucker, John Blackshear

Kentucky and Virginia Resolutions - History

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 andstrict 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". [ 1 ] 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". [ 1 ] Their influence reverberated right up to the Civil War and beyond. [ 2 ] In the years leading up to theNullification 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. [ 3 ]

Written anonymously by Jefferson and sponsored by his friend John Breckinridge , the Kentucky resolutions were passed by that state’s legislature on November 16, 1798. Jefferson’s principal arguments were that the national government was a compact between the states, that any exercise of undelegated authority on its part was invalid, and that the states had the right to decide when their powers had been infringed and to determine the mode of redress. The Kentucky resolutions thus declared the Alien and Sedition Acts to be “void and of no force.”

The resolutions crafted by Madison, while the same in substance as Jefferson’s, were more restrained. Passed by the Virginia legislature on December 24, 1798, they affirmed state authority to determine the validity of federal legislation and declared the acts unconstitutional.

The Virginia and Kentucky Resolutions were primarily protests against the limitations on civil liberties contained in the Alien and Sedition Acts rather than expressions of full-blown constitutional theory. Later references to the resolutions as authority for the theories of nullification and secession were inconsistent with the limited goals sought by Jefferson and Madison in drafting their protests.

The causes that led to the Kentucky and Virginia resolutions died away, and the Alien and Sedition Acts were repealed, but the arguments that Jefferson put forward at the time would be recalled later as the nation debated what course to follow on the issue of slavery. When in 1832, Madison found that his words in the Virginia resolution were being used to support the nullification position taken by South Carolina , he denied that it had ever been his or Jefferson's intent to see actual nullification take place, and had they thought that this distortion of their meaning might happen, they would have used different language .

In 1798, the United States Congress passed four laws, collectively known as the Alien and Sedition Acts. These acts placed new restrictions on aliens living in the U.S., and they made it illegal to make false or libelous statements about the federal government or the President.

Members of the Democratic-Republican Party believed that the Alien and Sedition Acts were aimed at silencing them and their supporters.

The Kentucky state legislature passed a resolution challenging the Alien and Sedition Acts on November 16, 1798. They passed another on December 3, 1799. The two acts are known as the Kentucky Resolutions.

Thomas Jefferson secretly authored the Kentucky Resolutions.

The Virginia state legislature passed a resolution challenging the Alien and Sedition Acts on December, 24 1798.

James Madison secretly authored the Virginia Resolution.

Jefferson and Madison collaborated in writing the resolutions.

Jefferson and Madison challenged the Alien and Sedition Acts on the grounds that they went beyond the powers specifically granted to the federal government in the U.S. Constitution. Such an extension of federal power was an encroachment on states' rights.

Jefferson and Madison argued that the United States was formed as a compact between the states, and that the Constitution established the rules of that compact. If the federal government, afterward, passed legislation that went beyond the powers specifically delegated to it in the Constitution, then the legislation was null and void. The idea that states could declare federal legislation null and void is known as the doctrine of nullification.

Virginia and Kentucky called upon the other states to support the concept of nullification by enacting legislation condemning the Alien and Sedition Acts, but none of the other states complied.

Although no other states supported the Virginia and Kentucky Resolutions at the time, some states did invoke the ideas of Jefferson and Madison later on, defending their positions regarding the Embargo Act of 1807, the War of 1812, federal tariffs, and, most notably, the issue of slavery.

The Virginia and Kentucky Resolutions of 1798

Was there a constitutional remedy—a solution short of secession or violent revolution—to oppose such laws as the Alien and Sedition Acts? Figures like Massachusetts senator Daniel Webster and Supreme Court justice Joseph Story (and later Abraham Lincoln) didn’t think so. Since they subscribed to a nationalist theory of the Union—whose core belief was that the Constitution was not a compact among sovereign states but had been adopted by the American people in the aggregate—this appeared to them as an unlawful revolt by an arbitrary portion of the people rather than as an exercise of authority by a sovereign body.

Webster lent weight to his argument in his famous 1833 speech “The Constitution Not a Compact Between Sovereign States.” He pointed to the words of the Constitution: Did it not say We, the People, and not We, the States, do ordain
and establish this Constitution? But Webster’s exegesis of the Constitution’s preamble is faulty. In fact, the Constitution as originally drafted did say “We, the States.” This wording was removed for practical reasons by the committee on style. Since no one could know in advance which states would ratify the Constitution and which would not, it made little sense to list all the states by name before each had made its decision. The substitute phrase “We, the People of the united States” referred not to a single American people taken in the aggregate, but to the people of Massachusetts, the people of Virginia, the people of Georgia—in other words, the people of the several states.

The fact that this textual change was unanimously accepted proves it could not have been intended to alter the nature of the Union. Had the new text really meant what Webster later claimed it did, vocal and lengthy debate would have ensued. It certainly would not have been unanimously approved.

History of the Resolutions [ edit ]

There were two sets of Kentucky Resolutions. The Kentucky state legislature passed the first resolution on November 16, 1798 and the second on December 3, 1799. Jefferson wrote the 1798 Resolutions. The author of the 1799 Resolutions is not known with certainty. [4]

James Madison wrote the Virginia Resolution. The Virginia state legislature passed it on December 24, 1798.

The Kentucky Resolutions of 1798 stated that acts of the national government beyond the scope of its constitutional powers are “unauthoritative, void, and of no force”. While Jefferson’s draft of the 1798 Resolutions had claimed that each state has a right of “nullification” of unconstitutional laws, [5] that language did not appear in the final form of those Resolutions. Rather than purporting to nullify the Alien and Sedition Acts, the 1798 Resolutions called on the other states to join Kentucky “in declaring these acts void and of no force” and “in requesting their repeal at the next session of Congress”. Jefferson at one point drafted a threat for Kentucky to secede, but dropped it from the text.

The Kentucky Resolutions of 1799 were written to respond to the states who had rejected the 1798 Resolutions. The 1799 Resolutions used the term “nullification“, which had been deleted from Jefferson’s draft of the 1798 Resolutions, resolving: “That the several states who formed [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.” The 1799 Resolutions did not assert that Kentucky would unilaterally refuse to enforce the Alien and Sedition Acts. Rather, the 1799 Resolutions to declared that Kentucky “will bow to the laws of the Union” but would continue “to oppose in a constitutional manner” the Alien and Sedition Acts. The 1799 Resolutions concluded by stating the Kentucky was entering its “solemn protest” against those Acts.

The Virginia Resolution did not refer to “nullification”, but instead used the idea of “interposition” by the states. The Resolution stated that when the national government acts beyond the scope of the Constitution, the states “have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them”. The Virginia Resolution did not indicate what form this “interposition” might take or what effect it would have. The Virginia Resolutions appealed to the other states for agreement and cooperation.

Numerous scholars (including Koch and Ammon) have noted that Madison had the words “void, and of no force or effect” excised from the Virginia Resolutions before adoption. Madison later explained that he did this because an individual state does not have the right to declare a federal law null and void. Rather, Madison explained that “interposition” involved a collective action of the states, not a refusal by an individual state to enforce federal law, and that the deletion of the words “void, and of no force or effect” was intended to make clear that no individual state could nullify federal law. [6]

The Kentucky Resolutions of 1799, while claiming the right of nullification, did not assert that individual states could exercise that right. Rather, nullification was described as an action to be taken by “the several states” who formed the Constitution. The Kentucky Resolutions thus ended up proposing joint action, as did the Virginia Resolution. [7]

The Resolutions joined the foundational beliefs of Jefferson’s party and were used as party documents in the 1800 election. As they had been shepherded to passage in the Virginia House of Delegates by John Taylor of Caroline, [8] they became part of the heritage of the “Old Republicans“. Taylor rejoiced in what the House of Delegates had made of Madison’s draft: it had read the claim that the Alien and Sedition Acts were unconstitutional as meaning that they had “no force or effect” in Virginia – that is, that they were void. Future Virginia Governor and U.S. Secretary of War James Barbour concluded that “unconstitutional” included “void, and of no force or effect”, and that Madison’s textual change did not affect the meaning. Madison himself strongly denied this reading of the Resolution. [9]

The long-term importance of the Resolutions lies not in their attack on the Alien and Sedition Acts, but rather in their strong statements of states’ rights theory, which led to the rather different concepts of nullification and interposition.

Responses of other states [ edit ]

The resolutions were submitted to the other states for approval, but with no success. Seven states formally responded to Kentucky and Virginia by rejecting the Resolutions [10] and three other states passed resolutions expressing disapproval, [11] with the other four states taking no action. No other state affirmed the resolutions. At least six states responded to the Resolutions by taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures. For example, Vermont’s resolution stated: “It belongs not to state legislatures to decide on the constitutionality of laws made by the general government this power being exclusively vested in the judiciary courts of the Union.” [12] In New Hampshire, newspapers treated them as military threats and replied with foreshadowings of civil war. “We think it highly probable that Virginia and Kentucky will be sadly disappointed in their infernal plan of exciting insurrections and tumults,” proclaimed one. The state legislature’s unanimous reply was blunt:

Resolved, That the legislature of New Hampshire unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this state, against every aggression, either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.

That the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government that the duty of such decision is properly and exclusively confided to the judicial department. [13]

Alexander Hamilton, then building up the army, suggested sending it into Virginia, on some “obvious pretext”. Measures would be taken, Hamilton hinted to an ally in Congress, “to act upon the laws and put Virginia to the Test of resistance”. [14]

The Report of 1800 [ edit ]

On January 1800, the Virginia General Assembly passed the Report of 1800, a document written by Madison to respond to criticism of the Virginia Resolution by other states. The Report of 1800 reviewed and affirmed each part of the Virginia Resolution, affirming that the states have the right to declare that a federal action is unconstitutional. The Report went on to assert that a declaration of unconstitutionality by a state would be an expression of opinion, without legal effect. The purpose of such a declaration, said Madison, was to mobilize public opinion and to elicit cooperation from other states. Madison indicated that the power to make binding constitutional determinations remained in the federal courts:

It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution. … [T]he declarations of [the citizens or the state legislature], whether affirming or denying the constitutionality of measures of the Federal Government … are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will possibly to a change in the opinion of the judiciary the latter enforces the general will, whilst that will and that opinion continue unchanged. [15]

Madison then argued that a state, after declaring a federal law unconstitutional, could take action by communicating with other states, attempting to enlist their support, petitioning Congress to repeal the law in question, introducing amendments to the Constitution in Congress, or calling a constitutional convention.

However, in the same document Madison explicitly argued that the states retain the ultimate power to decide about the constitutionality of the federal laws, in “extreme cases” such as the Alien and Sedition Act. The Supreme Court can decide in the last resort only in those cases which pertain to the acts of other branches of the federal government, but cannot takeover the ultimate decision making power from the states which are the “sovereign parties” in the Constitutional compact. According to Madison states could override not only the Congressional acts, but also the decisions of the Supreme Court:

The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature. However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve. [16]

Madison later strongly denied that individual states have the right to nullify federal law. [17]

Kentucky and Virginia Resolutions - History

United States History Question of the Day
Answer and Explanation

John C. Calhoun, author of the 1828
"South Carolina Exposition and Protest"
(Source: Wikimedia Commons --public domain)

Both the "South Carolina Exposition and Protest" and the Kentucky and Virginia Resolutions were concerned with

States' rights is based on the concept of nullifcation, the idea that a state can choose to disobey a federal law it finds unconstitutional, which was first developed by Thomas Jefferson and James Madison during the crisis caused by the passage of the Federalist Party-sponsored Alien and Sedition Acts. John C. Calhoun built on this argument in his "South Carolina Exposition and Protest" in the struggle that developed between South Carolina and the federal government over tariffs and state vs. federal powers. When the southern states seceded to form the Confederacy in 1861, the sentiments of nullification and states' rights provided the ideological framework for the new government.

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The Virginia and Kentucky Resolutions

The response of Thomas Jefferson and James Madison to the passage of the Alien and Sedition Acts.

The Resolutions and the Authors

When the Alien and Sedition Acts were passed there were many who supported the actions of John Adams administration while others were profoundly opposed to the measures. Thomas Jefferson and James Madison were among those who found the acts egregious. They undertook to write responses for the states of Virginia and Kentucky. In Kentucky Thomas Jefferson’s resolve was sponsored by John Breckenridge, in Virginia Madison’s was sponsored by John Taylor. In both cases the authorship was secret to the public.

Madison and Jefferson were upset about the unconstitutional nature of the acts. The Bill of Rights was still in its infancy and yet the temptation to override the Constitution was too much for the Federalists it smacked of tyranny. The resolves outlined what appropriate action could be taken by the states when such events presented themselves. With the two states adopting the measures the content of the resolves became the source of much debate.

Compact Theory

Outlined in the resolutions was the Compact Theory of government. They claimed that each state gave its sovereignty to the United States while the government worked to serve the needs of the states. When the government ceased to function for the good of the state they could withdraw from the compact and choose another path. Controversial at the time it became explosive when coupled with the concept of nullification. After the passage of the 1798 Kentucky resolution there was much criticism of the concepts. In response Jefferson authored a second resolve in 1799.


The second act in Kentucky outlined the concept of nullification. If the individual state felt as though an act of Congress was unconstitutional they had the right, claimed Jefferson, to nullify the act. He wrote “that the several states who formed that instrument being sovereign and independent, have the unquestionable right to judge of the infraction.” At the time the courts had not yet been defined as the ultimate authority in the case of constitutional questions. This argument would resurface later when the southern states threatened and eventually seceded after the election of Lincoln in 1860.

Concerns and Conclusion

Adherence to the constitution was essential to the survival of the Union the two believed. By taking liberties the Adams and the other Federalists were dismantling what they had fought for. For Madison the potential for disaster was clear “if an indifference were now shown to the palpable violation of one of the rights thus declared and secured and to the establishment of a precedent which may be fatal to the other.”

In the end neither resolve was responsible for the direct repeal of the acts, but they did begin polarizing arguments that led to the Election of 1800. The Republican Jefferson would win that election and with his success came repeal or the scheduled expiration of the acts he found so dangerous.

Watch the video: US Regents Review: Video #16: States Rights The VA and KY Resolutions (January 2022).