Kentucky and Virginia Resolutions - History of The Resolutions

History of The Resolutions

There were two sets of Kentucky Resolutions (plural). 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.

James Madison wrote the Virginia Resolution (singular). 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, 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, 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.

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.

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, 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.

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.