Throughout the 19th century, states’ rights activists and politicians often justified their arguments based on the ideas presented in the Virginia and Kentucky Resolutions.
The Virginia and Kentucky Resolutions were a series of noteworthy resolutions passed by the two state legislatures in 1798-1799 that aimed to organize Democratic-Republican opposition to Federalist policies and principles.
Founding Fathers Thomas Jefferson and James Madison secretly wrote the resolutions and convinced the Virginia and Kentucky legislatures to adopt the principles.
Although the resolutions helped the two men with their short-term goals, in the long-term the arguments of the Virginia and Kentucky Resolutions greatly contributed to disunion and the eventual Civil War. Just what were some of the arguments presented?
4 Arguments of the Virginia and Kentucky Resolutions
The Virginia and Kentucky Resolutions argued four main points: the Alien and Sedition Acts were unconstitutional, states determined the constitutionality of federal laws, nullification as a remedy to unconstitutional federal laws, and the compact theory that the Constitution is a compact among the states.
Although the resolutions failed in their original goal to repeal the significant Alien and Sedition Acts, their principles attracted many followers and helped organize Democratic-Republicans to victory in the crucial election of 1800.
Alien and Sedition Acts were Unconstitutional
The first argument of the Virginia and Kentucky Resolutions was that the Alien and Sedition Acts were unconstitutional.
In mid-1798 the Adams administration and the Federalist-dominated Congress passed the Alien and Sedition Acts in response to the breakout of the Quasi-War with France and scandalous XYZ Affair.
Given French transgressions over the preceding decade, Federalists enjoyed widespread popularity. In general, Federalists backed closer relations with Great Britain, while their opponents, Democratic-Republicans, backed closer relations with France. President Adams even went so far as to assert:
“All America appears to declare, with one heart and one voice… determination to vindicate… the honor of our nation.”1
Unfortunately, the Federalists may have believed they enjoyed more support than in reality. The public quickly turned on the Federalists following the unjust Alien and Sedition Acts that attacked civil liberties of Americans and foreigners living in the United States.
Opposition and protests to the laws sprung up around the nation with many local communities refusing to enforce the laws. The most well-known opposition came in the form of the Virginia and Kentucky Resolutions.1
Prominent Democratic-Republicans like Thomas Jefferson and James Madison feared that Federalists were using the Alien and Sedition Acts to silence the minority and ensure a permanent Federalist government.2
Believing the Adams administration exceeded federal authority, Jefferson and Madison secretly wrote the Virginia and Kentucky Resolutions and influenced the two state legislatures to pass the declarations. These resolutions clearly stated the Democratic-Republican belief that the Alien and Sedition Acts were unconstitutional.
The unconstitutionality of the laws was not based on the violations of personal liberties, but rather that such laws could not be passed at the federal level as they were reserved for the states.
In essence, the Virginia and Kentucky Resolutions were documents primarily reflecting an extreme states’ rights interpretation of the Constitution.3
States Determine Constitutionality of Federal Laws
The second and perhaps primary argument of the Virginia and Kentucky Resolutions was that states have the ability to determine the constitutionality of federal laws.
In the modern day it is well-known that the federal judiciary and the Supreme Court hold the power to determine constitutionality under a process called judicial review. Judicial review was not established until 1803 in the Marbury v. Madison decision.
Therefore, during the 1790s, it was still unclear just who was the final arbiter of the Constitution’s intent.
The Jeffersonian Democrats opted for a more narrow interpretation of the Constitution, arguing that any power not specifically defined for the federal government was left to the states (via the Tenth Amendment).
Federalists meanwhile argued for a broad interpretation, primarily around the Necessary and Proper clause that was later defined in the significant McCulloch v. Maryland case in 1819.
The Democratic-Republican belief that states’ rights reigned supreme was not a new concept. Jefferson’s followers fiercely opposed nearly all actions related to the expansion of federal powers.
Early in George Washington’s presidency southern states in particular greatly disagreed with Alexander Hamilton’s financial plan for the federal government to assume states’ debts. The opposition largely centered on the grounds that the Constitution did not expressly grant such powers to the federal government.2
In effect, the Virginia and Kentucky Resolutions appealed to the “real laws” of the nation. In the eyes of the Republicans the Federalists were leading the nation astray by grossly expanding federal powers at the expense of the states.
The only effective way to combat such tyranny was for the states to have the ability to determine the constitutionality of federal law. Their proposed remedy for such a scenario would have dire consequences in the future.
Established Concept of Nullification
The most divisive of the arguments proposed in the Virginia and Kentucky Resolutions was the concept of nullification.
Jefferson believed that the best course of action when dealing with an unconstitutional federal law was for states to declare it null and void, or nullify it. Madison in the Virginia Resolutions proposed a less extreme solution where states could “interpose” against federal laws to maintain their rights and liberties within their boundaries.4
From the Virginia Resolutions in 1798:
“...the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them.”
Madison purposely left the definition of “interpose” vague so as not to commit to the idea of nullification. However, the intent is clear in that nullification and interposition are essentially the same idea.4
The nullification doctrine immediately found fierce resistance, with opposition claiming such a theory was solely proposed for the “promotion of disunion and separation of the states.”5
Despite the inflammatory resolutions, little action occurred in the direct aftermath. No other states joined in declaring the right to nullify federal law.3
The nullification doctrine would have a lasting impact, and indeed greatly contributed towards disunion. As early as a decade later the New England states cited the theory of nullification when they opposed Jefferson’s Embargo Act of 1807.
Several years later and the New England states again cited the resolutions at the Hartford Convention of 1814 in their opposition to Madison’s wartime policies. The Nullification Crisis of 1832 was by far the most notable use of the nullification doctrine when South Carolina’s legislature declared the Tariff of 1828 null and void within its boundaries.
Only a strong response by President Andrew Jackson helped to hold the Union together during that tumultuous period.
Espoused the Compact Theory
A final argument of the Virginia and Kentucky Resolutions was for the “compact theory.” The compact theory espouses that the United States was formed by a compact among the states.
Therefore, it is the states, or a collection of them, that have the final say on federal authority. The compact theory is important in conjunction with the Virginia and Kentucky Resolutions, as the resolutions specifically appealed to the rest of the states to join in compact to formulate their own similar resolutions.4
Scholars today largely report that the resolutions drew widespread disapproval from the other states and suggest the ideas presented were not popular. However, new evidence suggests the ideas presented in the Virginia and Kentucky Resolutions were far more widespread than perceived.3
In reality, Georgia and Tennessee passed their own resolutions in response to the Virginia and Kentucky appeals. The GA and TN resolutions merely agreed that the Alien and Sedition laws were unconstitutional, but they stopped short of declaring agreement with the nullification doctrine.
In addition, two other states (South Carolina and New Jersey) were sympathetic to the principles, but opted not to formally respond. Another two states (North Carolina and Pennsylvania) found support in one legislative branch, but not the other, and thus did not issue their own resolutions.3
The remaining eight states outright rejected the resolutions and were primarily located in the north. The New England states in particular were a Federalist stronghold, which explains the firm opposition.
Perhaps unsurprisingly, the split for support/opposition was largely along sectional lines between the north and south. This divide would only grow larger over the subsequent decades.
The compact theory went on to play a major role in the dissolution of the Union preceding the Civil War.
To recap, the four primary arguments of the Virginia and Kentucky Resolutions were:
- Alien and Sedition Acts were unconstitutional
- States determine constitutionality of federal laws
- Established the nullification doctrine
- Espoused the compact theory
Although the resolutions did not accomplish their true aim in repealing the Alien and Sedition Acts, they left a huge impact on American society.
The resolutions helped Jefferson ascend to the presidency, giving the Democratic-Republicans a short-term, much-needed victory. Longer-term, they spelled disaster for the United States, contributing greatly to the Civil War.
The legacy of the Virginia and Kentucky Resolutions has even lasted through the modern era, with southern states espousing those principles when opposing the 1954 Supreme Court decision in Brown v. Board of Education.
Faced with the reality that his own ideas were contributing to the split of the Union, James Madison wrote in 1834:
“The advice nearest to my heart and deepest in my convictions is that the Union of the States be cherished and be perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise.”
To learn more about US history, check out this timeline of the history of the United States.
1) Bradburn, Douglas. “A Clamor in the Public Mind: Opposition to the Alien and Sedition Acts.” The William and Mary Quarterly, vol. 65, no. 3, 2008, pp. 565–600. JSTOR, http://www.jstor.org/stable/25096814.
2) K. R. Constantine Gutzman. “The Virginia and Kentucky Resolutions Reconsidered: ‘An Appeal to the Real Laws of Our Country.’” The Journal of Southern History, vol. 66, no. 3, 2000, pp. 473–96. JSTOR, https://doi.org/10.2307/2587865.
3) BIRD, WENDELL. “Reassessing Responses to the Virginia and Kentucky Resolutions: New Evidence from the Tennessee and Georgia Resolutions and from Other States.” Journal of the Early Republic, vol. 35, no. 4, 2015, pp. 519–51. JSTOR, http://www.jstor.org/stable/24768867.
4) Gutzman, Kevin R. “A Troublesome Legacy: James Madison and ‘The Principles of ’98.’” Journal of the Early Republic, vol. 15, no. 4, 1995, pp. 569–89. JSTOR, https://doi.org/10.2307/3124014.
5) Berns, Walter. “Freedom of the Press and the Alien and Sedition Laws: A Reappraisal.” The Supreme Court Review, vol. 1970, 1970, pp. 109–59. JSTOR, http://www.jstor.org/stable/3108724.