Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy

William J. Watkins (2004)

Republicans fought creation of a national bank. Hamilton's bank was to Jefferson and other Republicans but a conspiracy to "delug[e] the States with paper money instead of gold and silver." Republicans understood that a paper money system vests the government with much power, whereas with a pure specie standard control rests in the free market. Without the ability to create paper money out of thin air, which leads to inflation, government must tax or borrow to fund its projects. This keeps the government honest and, more importantly, defends the value of the laborer's wages. (8)

As an astute politician, Hamilton knew where his financial plan and theories of constitutional interpretation would lead. The delegates in Philadelphia had prevented him from copying the British model of government under which Parliament may, to quote Dicey, "make or unmake any law whatever." Hamilton had suggested the abolition of the state governments and the creation of a national government with the "power to pass all laws whatever." Thwarted in his frontal asault, Hamilton simply infiltrated the new government and undertook to remove as many constitutional limitations as possible. Today, one is hard pressed to distinguish the authority of the American Congress and that of the British Parliament. (9)

So disgusted was the House of Representatives with Washington that a vote to adjourn for a short time to wish the President a happy birthday was defeated 50-38. (19)

Madison, writing to Jefferson, observed that "it is a universal truth that the loss of liberty at home is to be charged to the provisions against danger, real or pretended, from abroad." . . . In 1798 Federalists in control of the government appreciated the French threat to the United States exemplified by the war at sea; however, the Federalists cooked up the drama of an invasion and Republican treachery in order to solidify their hold on the government. The Alien and Sedition Acts were passed that summer, and criticism of the national government became a crime. As is so often the case with war measures, the national government's threat to domestic liberty in 1798 far exceeded the machinations of foreign foes. (25)

The determination of who was a threatening alien was left to the president; the bill did not provide for trial by jury. The bill also created a national registration system for aliens. Aliens residing in the United States were required to obtain a permit, and aliens without permits could be imprisoned or fined. Similar to the original version of the Alien Enemies Act, the bill targeted citizens harboring aliens. Before permitting an alien to cross the threshold of his home, the citizen was to give written notice to a federal judge. Citizens who had not given the requisite notice could be fined. Polish writer Julien Niemcewicz, having firsthand knowledge of tyranny under the Russian Czar, described the Senate's bill as "conceived in a truly Turkish spirit, show[ing] to what point the administration attempts to adopt and imitate the arbitrary means of despots." (31-2)

In the waning months of 1798, the legislatures of Kentucky and Virginia voiced their objections to the Federalists' Alien and Sedition Acts. . . . Unbeknownst to their contemporaries, the drafts of the Kentucky and Virginia Resolutions were prepared by Thomas Jefferson and James Madison, respectively. The involvement of a sitting vice president and the Father of the Constitution indicates the severity of the situation. The Republican Party was replete with philosophers, jurists, and essayists—most of whom were familiar with the core concepts of the Constitution. Rather than deferring to others, Jefferson and Madison took it upon themselves to contest Federalist dogma. In but a few hundred words, the Kentucky and Virginia Resolves explained the fundamental principles of the Constitution and challenged the rationale of the Alien and Sedition Acts. Though written over two centuries ago, the Resolves' insights into the American experiment with self-government remain instructive as we continue to debate the proper roles of the state and national governments. (55)

We will most likely never know exactly what happened in the summer of 1798. Rightly fearing incarceration would result if they were connected to the Kentucky and Virginia Resolutions, Jefferson and Madison left few written records during these tense times. (56)

In the spring of 1797 the grand jury formally accused Samuel Jordan Cabell, who was the congressional representative from Jefferson's district, of seditious libel under the common law. The first of its kind, the indictment was a precursor to the assault mounted a year later against Benjamin Bache. Cabell had sent a letter to his constituents denouncing the Adams administration and was subsequently indicted for "endeavoring at a time of real public danger, to disseminate unfounded calumnies against the happy government of the United States, and thereby separate the people therefrom; and to increase or produce a foreign influence, ruinous to the peace, happiness, and independence of the United States." (57)

On August 23, 1799, Jefferson wrote to Madison and emphasized "[t]hat the principles already advanced by Virginia and Kentucky are not to be yielded in silence." Jefferson hoped both states would take some form of concerted action. . . . Jefferson suggested a protest and "reservation of the rights resulting to us from these palpable violations of the constitutional compact." . . . If the co-states refused to "rally with us around the true principles of our federal compact," Jefferson believed that Kentucky and Virginia should secede from the union. (76)

Though an extreme step, the idea that a state might leave the union was not heterodox in the 1790s. For example, three states in their messages signifying ratification of the Constitution stated that powers could be resumed if the national government became oppressive. . . . Some resolves passed at the local level during the summer of 1798 also mentioned the possibility of resuming the delegated powers. For example, the freeholders of Prince Edward County, Virginia, observed that in cases of abused powers, the people had a duty "to resume the delegated power, to call their trustees to an account, to resist the usurpation, extirpate the tyranny, to restore their sullied majesty, and prostituted authority, to suspend, alter, or abrogate those laws, to punish their unfaithful and corrupt servants." (76-7)

As the author of the Declaration of Independence, Jefferson accepted the theory of secession long before the Sedition Act crisis. However, Jefferson believed that such a step should not be taken "for light and transient causes." In fact, during the previous summer when Jefferson learned that John Taylor was beginning to question the value of the union, he promptly took up his pen and counseled his friend against secession. Although Jefferson agreed with Taylor that "we are completely under the saddle of Massachusetts and Connecticut, and that they ride us very hard," he urged patience. Jefferson assured Taylor that Republicans would "see the reign of witches pass over, their spells dissolved, and the people recovering their true sight, restoring their government to its true principles." (77)

The hated Sedition Act expired at midnight on March 3, 1800—the moment before Jefferson assumed office. The new chief executive terminated all pending prosecutions and pardoned those person convicted under the unconstitutional Act. "[T]he Revolution of 1800," Jefferson would later write, "was as real a revolution in the principles of our government as that of 1776 was in its form; not effected indeed by the sword, as that, but by the rational and peaceable instrument of reform, the suffrage of the people."
Jefferson's comparison of the two revolutions was no mere rhetorical flourish. To Jefferson, both revolutions were built on similar principles. In the American Revolution, the people of the colonies fought for the right to govern themselves. They refused to accept that Parliament was sovereign in all matters. Jefferson in 1774 declared sundry acts of Parliament "void" and "inauthoratative." "Let no act be passed by any one legislature," Jefferson lectured George III, "which may infringe on the rights and liberties of another." In the Revolution of 1800, the people of the states fought for the right to govern themselves. They refused to accept a Federalist version of the Constitution that ignored the division of legislative sovereignty. As in 1774, Jefferson pronounced as void the acts of a national legislative body and warned of consolidation as Congress infringed on the authority of the state legislatures. (81)

[On the eve of the War of 1812] the Connecticut legislature adopted a special report on the matter. The legislature's report began by expressing a "deep interest in [the union's] preservation," but then turned to first principles. "But it must not be forgotten, that the state of Connecticut is a FREE SOVEREIGN and INDEPENDENT state; that the United States are a confederacy of states; that we are a confederated and not a consolidated republic." (90)

Daniel Webster of Massachusetts, however, sounded more like a Virginia states' rights advocate when he spoke against the draft. "Where is it written in the Constitution," asked Webster, "in what article or section is it contained, that you may take children from their parents, and parents from their children, and compel them to fight the battles of any war in which the folly or the wickedness of government may engage it?" (91)

Never one to shy away from controversy, Thomas Cooper inserted himself into the middle of the tariff debate in 1827. Speaking at an antitariff meeting in Columbia, South Carolina, Cooper fired a rhetorical shot that was heard throughout the union. Cooper denounced the tariff as "a system, whose effect will be to sacrifice the south to the north, by converting us into colonies and tributaries—to tax us for their own emolument—to claim the right of disposing of our honest earnings—to forbid us to buy from our most valuable customers—to irritate into retaliation our foreign purchasers, and thus confine our raw material to the home market—in short to impoverish the planter, and to stretch the purse of the manufacturer."
Because of this unjust system, Cooper concluded, "we shall e'er long be compelled to calculate the value of our union; and to enquire of what use to us is this most unequal alliance." According to Dumas Malone, the secession of the South "from an unprofitable Union certainly received its first extensive advertising as a result of this speech." (98-9)

Jefferson had died in 1826 and therefore was unable to challenge Madison's version of events. Early in the South Carolina controversy Madison had claimed the Jefferson had never used the term "nullification" in his draft of the Kentucky Resolutions. However, when a draft turned up in Jefferson's handwriting, Madison was forced to retreat on this point. Madison's Virginia Resolutions were more moderate than Jefferson's Kentucky Resolutions, but this cannot explain his wholesale abandonment of former positions. Perhaps the best conjecture is that Madison, realizing that his years were dwindling, wanted to be remembered as the Father of the Constitution, a creator of the union. Aware that Alexander Hamilton's dreams for America were reaching fruition, Madison jumped on the bandwagon to secure his share of the credit. (114)

The contours of the federal system, with its division of legislative sovereignty, are hardly visible as one surveys the modern governmental landscape. If Madison and Jefferson could return today, they would most likely conclude that we had abandoned the Principles of '98 for the British form of government. A look at the U.S. Code or a federal appropriations bill would convince them that Congress, like the British Parliament, has the authority to legislate on all subjects.
The consolidation feared by Anti-Federalists, the Jeffersonian Republicans, and the South Carolina nullifiers has come to pass. In answering the question of "what went wrong?" with the Framers' plan of government, one is tempted to begin with the War Between the States. . . . The state governments were intended to be a powerful check on the authority of the national government. In case of national encroachments, the Framers and ratifiers believed that the states would use all methods at their disposal, including the musket and sword, to return the national government to the bounds set by the Constitution. Lee's surrender to Grant dispelled this possibility. With the issue of secession settled by battle and the union held together by force, the states ceased to be a real barrier to the national government's expansion. (119)

At the time of ratification, the Framers expected the Senate to serve as guardian of the states' reserved powers. In the Philadelphia Convention, George Mason observed that the appointment of senators by state legislatures would provide the states with a "power of self defence." (120)

As Larry Kramer has observed, though the Senate seems like a perfect vehicle for protecting the states, the Framers failed to anticipate a major development in the electoral process: the rise of political parties. The idea of political parties was anathema to the Framers and they associated parties with unruly and dangerous factions. By faction the Framers meant a group formed to achieve a common goal that was "adverse to the rights of other citizens, or to the permanent and aggregate interests of the community." Factions were an evil to be avoided and the Framers never dreamd that "factions" would become central to the operation of our government.
In 1787, the Framers assumed that state officials would be jealous of their reserved powers just as federal officials would be jealous of their delegated powers. The Framers never contemplated that the competing sets of officials would combine to accomplish ultimate goals based on a common ideology or party affiliation. For the federal system to work, the two groups were supposed to clash and thus keep each other in check. Operation in concert was not in the equation.
Political parties turned the world of the Framers upside down as an interstate network developed whereby like-minded politicians pursued common agendas (121)

By 1912, the demand for the popular election of senators was so strong that Congress submitted the Seventeenth Amendment to the states for ratification. Within 11 months the requisite three-fourths of the state legislatures approved the amendment and officially disenfranchised themselves. Unfortunately, the debates surrounding the adoption of the Seventeenth Amendment evince little concern for the Senate's role as protector of the states' reserved powers. In the light of the outcome of the War Between the States and the growing role of political parties, the people were forgetting the importance of federalism in the American system of government. (122)

Not only were political parties instrumental in undermining the Senate's role, but they have also blurred distinctions between intrastate activities, meant to be regulated by local officials, and national concerns falling within Congress's delegated powers. Every problem is now seen as a national problem requiring a national solution. (123)

Considering that our puissant national government scarcely resembles the government of "few and defined" powers that Madison described in the Federalist, an appreciation of federalism is perhaps more vital today than ever before. . . . Congress either lacks the will to change its ways, or has been so thoroughly corrupted by the exercise of broad powers that it refuses to part with them. (137)

State legislators are more susceptible to monitoring and censure because they are closer to the people. State legislators normally maintain close ties with their communities and pursue their various occupations while in office. The Texas legislature, for example, meets only once every two years for a four-month session. Thus, the state legislators feel the effects of the laws they pass and are close at hand should their constituents choose to remonstrate. Conversely, members of the national legislature are separated from their constituents and give up their occupations when they enter office. They spend most of their time in Washington, do not feel the bite of unwholesome laws in their daily affairs, and are not close at hand to witness the agitation of their constituents. (141)

The Framers rightly feared the concentration of power would lead to arbitrary government. "The accumulation of all powers . . . in the same hands," wrote Madison, "may justly be pronounced the very definition of tyranny." (141)

Writing to Thomas Lomax during the crisis of the Alien and Sedition Acts, Jefferson optimistically observed that "[t]he spirit of 1776 is not dead. It has only been slumbering. The body of the American people is substantially republican. But their virtuous feelings have been played on by some fact with more fiction; they have been the dupes of artful maneuvers, and made for a moment to be willing instruments in forging chains for themselves." (157)

Before the Supreme Court decision in Oakland Cannabis, the people of Nevada via a ballot initiative instructed their legislature to legalize marijuana for medicinal use. Though aware of the Supreme Court's decision in Oakland Cannibis, the legislature passed such a law. In the preamble, the legislature declared that
"the State of Nevada as a sovereign state has the duty to carry out the will of the people of this state and to regulate the health, medical practices and well-being of those people in a manner that respects their personal decisions concerning the relief of suffering through medical use of marijuana."
In language reminiscent of the Kentucky and Virginia Resolutions, Nevada has issued a challenge to the national government. In effect, Nevada has interposed between its citizens and the federal government. Though the legislature should be applauded for this act, so long as a branch of the national government serves as the arbiter of state and federal power, Nevada's chances of success are not good. (161)