Kentucky and Virginia Resolutions

Kentucky and Virginia Resolutions

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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
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

 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
States' rights
States' rights in U.S. politics refers to political powers reserved for the U.S. state governments rather than the federal government. It is often considered a loaded term because of its use in opposition to federally mandated racial desegregation...

 and strict constructionism
Strict constructionism
In the United States, Strict constructionism refers to a particular legal philosophy of judicial interpretation that limits or restricts judicial interpretation. The phrase is also commonly used more loosely as a generic term for conservatism among the judiciary.- Strict sense of the term :Strict...

 of the Constitution. The Kentucky and Virginia Resolutions of 1798 were written secretly by Vice President
Vice President of the United States
The Vice President of the United States is the holder of a public office created by the United States Constitution. The Vice President, together with the President of the United States, is indirectly elected by the people, through the Electoral College, to a four-year term...

 Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...

 and James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...

, respectively.

The principles stated in the resolutions became known as the "Principles of '98
Principles of '98
The Principles of '98 refer to the American political position that individual states could judge the constitutionality of central government laws and decrees, and could refuse to enforce laws deemed unconstitutional. This refusal to enforce unconstitutional laws is generally referred to as...

." 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
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

 by the states is the proper remedy. The Virginia Resolutions of 1798 refer to "interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

" 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. The theoretical damage of the resolutions was "deep and lasting, and was a recipe for disunion". 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". Their influence reverberated right up to the Civil War and beyond. In the years leading up to the Nullification Crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...

, the resolutions divided Jeffersonian democrats
Jeffersonian democracy
Jeffersonian Democracy, so named after its leading advocate Thomas Jefferson, is a term used to describe one of two dominant political outlooks and movements in the United States from the 1790s to the 1820s. The term was commonly used to refer to the Democratic-Republican Party which Jefferson...

, with states' rights proponents such as John C. Calhoun
John C. Calhoun
John Caldwell Calhoun was a leading politician and political theorist from South Carolina during the first half of the 19th century. Calhoun eloquently spoke out on every issue of his day, but often changed positions. Calhoun began his political career as a nationalist, modernizer, and proponent...

 supporting the Principles of '98
Principles of '98
The Principles of '98 refer to the American political position that individual states could judge the constitutionality of central government laws and decrees, and could refuse to enforce laws deemed unconstitutional. This refusal to enforce unconstitutional laws is generally referred to as...

 and President Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...

 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. Future president James Garfield
James Garfield
James Abram Garfield served as the 20th President of the United States, after completing nine consecutive terms in the U.S. House of Representatives. Garfield's accomplishments as President included a controversial resurgence of Presidential authority above Senatorial courtesy in executive...

, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".

Provisions of the Resolutions


The resolutions opposed the federal Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

, which extended the powers of the federal government. They argued that the Constitution
United States Constitution
The Constitution of the United States is the supreme law of the United States of America. It is the framework for the organization of the United States government and for the relationship of the federal government with the states, citizens, and all people within the United States.The first three...

 was a "compact
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...

" or agreement among the states. Therefore, the federal government had no right to exercise powers not specifically delegated to it. If the federal government assumed such powers, its acts could be declared unconstitutional by the states. So, states could decide the constitutionality of laws passed by Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....

. Kentucky's Resolution 1 stated:

That the several states composing the United States of America are not united on the principle of unlimited submission to their general government; but that, by compact, under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party, its co-States forming, as to itself, the other party; that this government, created by this compact, was not made the exclusive or final judge of the extent of the powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.


A key provision of the Kentucky Resolutions was Resolution 2, which denied Congress more than a few penal powers by arguing that Congress had no authority to punish crimes other than those specifically named in the Constitution. The Alien and Sedition Acts were asserted to be unconstitutional, and therefore void, because they dealt with crimes not mentioned in the Constitution:


That the Constitution of the United States, having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies, and felonies committed on the high seas, and offenses against the law of nations, and no other crimes, whatsoever; and it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, not prohibited by it to the States, are reserved to the States respectively, or to the people," therefore the act of Congress, passed on the 14th day of July, 1798, and intitled "An Act in addition to the act intitled An Act for the punishment of certain crimes against the United States," as also the act passed by them on the -- day of June, 1798, intitled "An Act to punish frauds committed on the bank of the United States," (and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution,) are altogether void, and of no force watsoever.


The Virginia Resolution of 1798 also relied on the compact theory
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...

 and asserted that the states have the right to determine whether actions of the federal government exceed constitutional limits. The Virginia Resolution introduced the idea that the states may "interpose" when the federal government acts unconstitutionally, in their opinion:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government as resulting from the compact to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact, as no further valid than they are authorized by the grants enumerated in that compact; and that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, 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.

History of the Resolutions


There were two sets of Kentucky Resolutions (plural). The Kentucky
Kentucky
The Commonwealth of Kentucky is a state located in the East Central United States of America. As classified by the United States Census Bureau, Kentucky is a Southern state, more specifically in the East South Central region. Kentucky is one of four U.S. states constituted as a commonwealth...

 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
Virginia
The Commonwealth of Virginia , is a U.S. state on the Atlantic Coast of the Southern United States. Virginia is nicknamed the "Old Dominion" and sometimes the "Mother of Presidents" after the eight U.S. presidents born there...

 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
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

" 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
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

," 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
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

" 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
John Taylor of Caroline
John Taylor usually called John Taylor of Caroline was a politician and writer. He served in the Virginia House of Delegates and in the United States Senate . He wrote several books on politics and agriculture...

, 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
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

 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
James Barbour
James Barbour was an American lawyer, amember and speaker of the Virginia House of Delegates, the 18th Governor of Virginia, the first Governor to reside in the current Virginia Governor's Mansion, a U.S. Senator from 1814–1825, and the United States Secretary of War from 1825-1828.Barbour was a...

 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
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...

, but rather in their strong statements of states' rights theory, which led to the rather different concepts of nullification
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

 and interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

.

Responses of other states


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 and three other states passed resolutions expressing disapproval, 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." In New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...

, 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:
Alexander Hamilton
Alexander Hamilton
Alexander Hamilton was a Founding Father, soldier, economist, political philosopher, one of America's first constitutional lawyers and the first United States Secretary of the Treasury...

, 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."

The Report of 1800


In January 1800, the Virginia General Assembly passed the Report of 1800
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...

, a document written by Madison to respond to criticism of the Virginia Resolution by other states. The Report of 1800
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...

 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:
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. Madison did not assert that the states could legally nullify an objectionable federal law or that they could declare it void and unenforceable. Madison later strongly denied that individual states have the right to nullify federal law.

Influence of the Resolutions


Although the New England
New England
New England is a region in the northeastern corner of the United States consisting of the six states of Maine, New Hampshire, Vermont, Massachusetts, Rhode Island, and Connecticut...

 states rejected the Kentucky and Virginia Resolutions in 1798-99, several years later, the state governments of Massachusetts
Massachusetts
The Commonwealth of Massachusetts is a state in the New England region of the northeastern United States of America. It is bordered by Rhode Island and Connecticut to the south, New York to the west, and Vermont and New Hampshire to the north; at its east lies the Atlantic Ocean. As of the 2010...

, Connecticut
Connecticut
Connecticut is a state in the New England region of the northeastern United States. It is bordered by Rhode Island to the east, Massachusetts to the north, and the state of New York to the west and the south .Connecticut is named for the Connecticut River, the major U.S. river that approximately...

, and Rhode Island
Rhode Island
The state of Rhode Island and Providence Plantations, more commonly referred to as Rhode Island , is a state in the New England region of the United States. It is the smallest U.S. state by area...

 threatened to ignore the Embargo Act of 1807
Embargo Act of 1807
The Embargo Act of 1807 and the subsequent Nonintercourse Acts were American laws restricting American ships from engaging in foreign trade between the years of 1807 and 1812. The Acts were diplomatic responses by presidents Thomas Jefferson and James Madison designed to protect American interests...

 based on the authority of states to stand up to laws deemed by those states to be unconstitutional. Rhode Island justified its position on the embargo act based on the explicit language of interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

. However, none of these states actually passed a resolution nullifying the Embargo Act. Instead, they challenged it in court, appealed to Congress for its repeal, and proposed several constitutional amendments.

Several years later, Massachusetts and Connecticut asserted their right to test constitutionality when instructed to send their militias to defend the coast during the War of 1812
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...

. Connecticut and Massachusetts questioned another embargo passed in 1813. The supreme courts of both states objected, including this statement from the Massachusetts General Court:
Massachusetts and Connecticut, along with representatives of some other New England states, held a convention
Hartford Convention
The Hartford Convention was an event spanning from December 15, 1814–January 4, 1815 in the United States during the War of 1812 in which New England's opposition to the war reached the point where secession from the United States was discussed...

 in 1814 that issued a statement asserting the right of interposition. But the statement did not attempt to nullify federal law. Rather, it made an appeal to Congress to provide for the defense of New England and proposed several constitutional amendments.

The Nullification Crisis


During the "nullification crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...

" of 1828–1833, South Carolina
South Carolina
South Carolina is a state in the Deep South of the United States that borders Georgia to the south, North Carolina to the north, and the Atlantic Ocean to the east. Originally part of the Province of Carolina, the Province of South Carolina was one of the 13 colonies that declared independence...

 passed an Ordinance of Nullification purporting to nullify two federal tariff laws. South Carolina asserted that the Tariff of 1828
Tariff of 1828
The Tariff of 1828 was a protective tariff passed by the Congress of the United States on May 19, 1828, designed to protect industry in the northern United States...

 and the Tariff of 1832
Tariff of 1832
The Tariff of 1832 was a protectionist tariff in the United States. It was largely written by former President John Quincy Adams, who had been elected to the House of Representatives and been made chairman of the Committee on Manufactures, and reduced tariffs to remedy the conflict created by the...

 were beyond the authority of the Constitution, and therefore were "null, void, and no law, nor binding upon this State, its officers or citizens." Andrew Jackson
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...

 issued a proclamation against the doctrine of nullification, stating: "I consider . . . the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." He also denied the right to secede: "The Constitution . . . forms a government not a league. . . . To say that any State may at pleasure secede from the Union is to say that the United States is not a nation."

James Madison also opposed South Carolina's position on nullification. Madison argued that he had never intended his Virginia Resolution to suggest that each individual state had the power to nullify an act of Congress. Madison wrote: "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined." Madison explained that when the Virginia Legislature passed the Virginia Resolution, the "interposition" it contemplated was "a concurring and cooperating interposition of the States, not that of a single State. . . . [T]he Legislature expressly disclaimed the idea that a declaration of a State, that a law of the U. S. was unconstitutional, had the effect of annulling the law." Madison went on to argue that the purpose of the Virginia Resolution had been to elicit cooperation by the other states in seeking change through means provided in the Constitution, such as amendment.

The Compact Theory


The Supreme Court rejected the compact theory
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...

 in several nineteenth century cases, undermining the basis for the Kentucky and Virginia resolutions. In cases such as Martin v. Hunter's Lessee
Martin v. Hunter's Lessee
Martin v. Hunter's Lessee, , was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law.-Background:...

, 14 U.S. (1 Wheat.) 304 (1816), McCulloch v. Maryland
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in Maryland...

, 17 U.S. (4 Wheat.) 316 (1819), and Texas v. White
Texas v. White
Texas v. White, was a significant case argued before the United States Supreme Court in 1869. The case involved a claim by the Reconstruction government of Texas that United States bonds owned by Texas since 1850 had been illegally sold by the Confederate state legislature during the American...

, 74 U.S. (7 Wall.) 700 (1869), the Court asserted that the Constitution was established directly by the people, rather than being a compact among the states. Abraham Lincoln
Abraham Lincoln
Abraham Lincoln was the 16th President of the United States, serving from March 1861 until his assassination in April 1865. He successfully led his country through a great constitutional, military and moral crisis – the American Civil War – preserving the Union, while ending slavery, and...

 also rejected the compact theory
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...

 saying the Constitution was a binding contract among the states and no contract can be changed unilaterally by one party.

School desegregation


In 1954, the Supreme Court decided Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...

, which ruled that segregated schools violate the Constitution. Many people in southern states strongly opposed the Brown decision. James J. Kilpatrick, an editor of the Richmond News Leader, wrote a series of editorials urging "massive resistance" to integration of the schools. Kilpatrick, relying on the Virginia Resolution, revived the idea of interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

 by the states as a constitutional basis for resisting federal government action. A number of southern states, including Arkansas, Louisiana, Virginia, and Florida, subsequently passed interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

 and nullification
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

 laws in an effort to prevent integration of their schools.

In the case of Cooper v. Aaron
Cooper v. Aaron
Cooper v. Aaron, 358 U.S. 1 , was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court's decisions, and could not choose to ignore them.-Background of the case:...

, 358 U.S. 1 (1958), the Supreme Court unanimously rejected Arkansas' effort to use nullification
Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional...

 and interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...

. The Supreme Court held that under the Supremacy Clause
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...

, federal law was controlling and the states did not have the power to evade the application of federal law. The Court specifically rejected the contention that Arkansas' legislature and governor had the power to nullify the Brown decision.

In a similar case arising from Louisiana's interposition act, Bush v. Orleans Parish School Board, 364 U.S. 500 (1960), the Supreme Court affirmed the decision of a federal district court that rejected interposition. The district court stated: "The conclusion is clear that interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, 'it amounted to no more than a protest, an escape valve through which the legislators blew of steam to relieve their tensions.' . . . However solemn or spirited, interposition resolutions have no legal efficacy." Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).

In 2009, Dan Itse
Dan Itse
Daniel C. Itse, known as Dan Itse , is a conservative Republican member of the New Hampshire House of Representatives. A native of San Francisco, California, Itse is a professional engineer who resides in Fremont, New Hampshire...

, a member of the New Hampshire House of Representatives
New Hampshire House of Representatives
The New Hampshire House of Representatives is the lower house in the New Hampshire General Court. The House of Representatives consists of 400 members coming from 103 districts across the state, created from divisions of the state's counties. On average, each legislator represents about 3,300...

 from Fremont
Fremont, New Hampshire
Fremont is a town in Rockingham County, New Hampshire, United States. The population was 4,283 at the 2010 census. Fremont is crossed by the Rockingham Recreation Trail and NH Route 107.-History:...

, New Hampshire
New Hampshire
New Hampshire is a state in the New England region of the northeastern United States of America. The state was named after the southern English county of Hampshire. It is bordered by Massachusetts to the south, Vermont to the west, Maine and the Atlantic Ocean to the east, and the Canadian...

, led a national movement to restore the powers of the states through the Kentucky and Virginia Resolutions.

Importance of the Resolutions


Merrill Peterson, Jefferson's otherwise very favorable biographer, emphasizes the negative long-term impact of the Resolutions, calling them "dangerous" and a product of "hysteria":
Jefferson's biographer Dumas Malone
Dumas Malone
Dumas Malone was an American historian, biographer, and editor noted for his six-volume biography on Thomas Jefferson, for which he received the 1975 Pulitzer Prize for history...

 argued that the Kentucky resolution might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold," the Alien and Sedition Acts would "necessarily drive these states into revolution and blood." Historian Ron Chernow says of this "he wasn't calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president." Jefferson "thus set forth a radical doctrine of states' rights that effectively undermined the constitution." Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. Historian Garry Wills
Garry Wills
Garry Wills is a Pulitzer Prize-winning and prolific author, journalist, and historian, specializing in American politics, American political history and ideology and the Roman Catholic Church. Classically trained at a Jesuit high school and two universities, he is proficient in Greek and Latin...

 argued "Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure" The theoretical damage of the Kentucky and Virginia resolutions was "deep and lasting, and was a recipe for disunion". 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". The influence of Jefferson's doctrine of states' rights reverberated right up to the Civil War and beyond. Future president James Garfield
James Garfield
James Abram Garfield served as the 20th President of the United States, after completing nine consecutive terms in the U.S. House of Representatives. Garfield's accomplishments as President included a controversial resurgence of Presidential authority above Senatorial courtesy in executive...

, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".

External links


  • Text of the Kentucky Resolutions of 1798
  • Text of Virginia Resolutions of 1798
    • Answers from Delaware, Rhode Island, Massachusetts, New York (also to Kentucky), Connecticut, New Hampshire (also to Kentucky), and Vermont.
  • Text of the Kentucky Resolutions of 1799