The Viginia and Kentucky Resolutions of 1898-9

Thomas Jefferson, opponent of slavery and defender of freedom of speech and the press

In the course of poking around some old journals, I came across this article, "Contemporary Opinion of the Virginia and Kentucky Resolutions" by Frank Maloy Anderson in The American Historical Review December 1899. (Yes, that's 1899.)

The Virginia and Kentucky Resolutions were promoted by Thomas Jefferson and James Madison as part of their opposition to the Alien and Sedition Acts passed during the John Adams administration in 1798. They elaborated the doctrine, in the context a threat rather than a concrete attempt to implement the threatened solution, that when confronted by a un-Constitutional law, an individual state could "interpose" its authority to block enforcement on the law in that state.

The events from that time (1798) through the Civil War settled definitively as a matter of law that such a power does not exist under the Constitution. But understanding the context of the time requires us to remember that judicial review that would allow the federal courts to overrule laws as unconstitutional was not a principle specified in the Constitution itself. And so the question of the right way and the proper authorities to challenge an act of Congress as violating the Constitution was genuinely an open question, really until the time of the Civil War.

Some of the actions Abraham Lincoln took against Northern Copperheads (Confederate sympathizers) were first-time events for which there were no clearly established precedents one way or another in American law at that time.

The Virginia and Kentucky resolutions became key exhibits for the advocates of secession over the slavery issue and later for the Lost Cause historians who sought to justify Confederate secession. The argument was that here were two of the Founding Fathers advocating state interposition and nullification of federal laws, illustrating that such a power was inherent in the Constitutional federal system.

John Calhoun and his disciples had nothing in common with Thomas Jefferson's hatred of the institution of slavery. But they used an argument that did share some common ground with the position of the Resolutions.

That argument had to do with the notion of the United States as a compact of states, each of which could dissolve their portion of the compact by their own choice. (One of the grammatical consequences of the Civil War was that before then, "United States" was treated as a plural phrase, as it still is in other languages. But after the war, it became a singular phrase in American English, i.e., "the United States is", not "the United States are".)

The alternative view of America as a unified nation in itself was articulated strongly by Calhoun's greatest nemesis on the issue, President Andrew Jackson, Old Hickory himself.

Anderson's historical account from 1899 looks at the available records of the formal debates over the Resolutions at the time. Several Northern states, where Adams' Federalist Party were strongest, made critical replies or other formal responses to the Resolutions. While other Southern states where Jefferson's Democratic-Republican Party (then referred to as the Republican Party) was gaining strength did not pass resolutions in support, but neither did they oppose the Resolutions. Anderson writes:

The entire reasoning of both the Virginia and the Kentucky Resolutions of 1798 was grounded upon the assertion, plainly expressed in each set of resolutions, that the Union was the result of a compact to which the states were parties. This fundamental doctrine received no attention in any of the replies or the discussions over them, so far as the latter have been preserved, except in the reply of Vermont to Kentucky. It is probable that this assertion of Virginia and Kentucky was more generally accepted in 1799 than it was later; and it is certain that neither the Republican who asserted it nor the Federalist who denied it had any adequate conception of the results to which a logical development of the doctrine would lead. (my emphasis)

That last sentence is a reminder that historical comparisons have to be careful not to read back into the situation in 1798 the mindset and controversies which occurred over nullification in the three decades leading up to the Civil War.

The opposing view, the one which became the definitive understanding of the American nation, was expressed by the Vermont legislature in responding to the Kentucky Resolution and the assertion that the Union was a compact of states:

This cannot be true. The old confederation, it is true, was formed by the state Legislatures, but the present Constitution of the United States was derived from an higher authority. The people of the United States formed the federal constitution, and not the states, or their Legislatures. And although each state is authorized to propose amendments, yet there is a wide difference between proposing amendments to the constitution, and assuming, or inviting, a power to dictate and control the General Government. (my emphasis)

It is important to remember that the Resolutions' assertions of states rights was in protest of severe federal laws that clearly did violate freedom of speech and the press. They were outright repressive laws, that let the federal government throw someone in jail just for criticizing the current administration.

Anderson gives us a glimpse of the alarm of the Jeffersonians in describing a state prosecution in Massachusetts against a Republican, Abijah Adams:

It is plain, then, that both the Federalists and the Republicans of Massachusetts took the same general attitude toward the protest and remedy of the Virginia and Kentucky Resolutions as did the members of their respective parties in the Middle States. The Federalists manifested an utterly imperious and intolerant demeanor towards their Republican opponents. The imprisonment of Adams indicates that the Federalists were ready upon the slightest provocation to treat opposition to the policy of the administration, whether federal or state, as a crime. That case certainly does much to explain why Jefferson and other Republican leaders could fear that republican institutions were about to be overthrown.

The legal issue shouldn't lead us to confuse the political contexts and goals of the Jeffersonian threat of nullification version the Calhounian reality: Jefferson and Madison asserted the theoretical right in defense of freedom of speech and the press, while Calhoun and the secessionists asserted it in defense of slavery.

Anderson makes a further point that is relevant to the question of how people at that time, the Founders generation viewed the assertions of the Resolutions. He refers specifically to the election of 1800, which he asserts cannot be taken to be an endorsement of the notions of interposition and nullification:

How far were the Virginia and Kentucky Resolutions influential in determining the presidential election of 1800? It has been often asserted that the principles of these resolutions were accepted by the American people in that election. Unless one can show by documentary evidence, as I have tried to do for the discussions of 1799, that these resolutions were discussed in the campaign of 1800 and their principles clearly made an issue, this amounts to nothing more than assertion. I have not been able to find any such documentary evidence. Invective against the Alien and Sedition Laws can be found in great plenty, but of direct allusions to the Virginia and Kentucky Resolutions or to their constitutional doctrines, I can find outside of Virginia only the very little that has been indicated in the two preceding paragraphs. From this evidence I am forced to conclude that the verdict of 1800, while a conclusive endorsement of the protest of the Virginia and Kentucky Resolutions, was not, so far as can be shown, an endorsement of either the remedy hinted at or the principles upon which it was founded. In a word, the remedy and its principles were not an issue in that campaign. (my emphasis)

Tags: frank maloy anderson, viginia and kentucky resolutions