Tenth Amendment Center: The Kentucky and Virginia Resolutions: Offering a Pathway to a More Free Society

From Tenth Amendment Center

...from Tenth Amendment Center

The Kentucky and Virginia Resolutions of 1798 offer us a pathway to a more free society.

Fearing espionage from foreign powers and criticism of its foreign policy from U.S. citizens, President John Adams and the Federalist Congress passed what came to be known as the Alien and Sedition Acts during its Quasi War with France in 1798.

The Alien Acts gave the federal government the authority to deport and imprison non-citizens in the United States that were viewed as dangerous to the republic. The Sedition Act outlawed any speech that criticized the actions of the President and Congress during wartime.

Ironically, this set of laws designed to crack down on dissent spurred the authoring of two of the most powerful criticisms of centralized governmental power in U.S. history–the Kentucky Resolutions and the Virginia Resolutions of 1798.These Resolutions were authored in secret by founding fathers James Madison and Thomas Jefferson and were passed in the states houses of Kentucky and Virginia as official condemnations of the Alien and Sedition Acts.

Although written several years after the Constitution and the Bill of Rights were ratified, these resolutions lay out the philosophical basis of the 10th Amendment and reveal exactly how the federal government derived its authority.

Both Madison and Jefferson base their resolutions what is now called the “compact theory” of the derivation of the federal government’s power. The essence of the compact theory is that states are not granted their rights magnanimously from a centralized authority, but rather the individual states were the original grantors of these powers while ceding certain others to the general government. Madison and Jefferson argued that if the constitutional framework were set up in the former structure, the federal government would be responsible for defining its own power. Therefore it was crucial that the states had a source of their own authority to preserve a balance between the opposing powers.

Most importantly, Jefferson noted in the Kentucky Resolutions that laws passed by the federal government that overstep its constitutional bounds are void. He wrote that nullification is the “rightful remedy” whenever powers are assumed by the federal government that have not been delegated. Jefferson’s justification for nullification as an avenue of defense against centralized overreach is that without it, there is no way to combat a majority in Congress.

In the Virginia Resolutions, Madison argues that states have the right and duty to interpose when the federal government oversteps its constitutional limits. Madison said that by implementing the Alien and Sedition Acts, the federal government had “expanded on certain general phrases” and the judiciary and legislative powers of the individual states had been subsumed by the central government. In Madison’s view, these acts set a dangerous precedent of federal overreach that would slowly transform the democratic republic constructed by the constitution into a mixed monarchy. The states were the last line of defense to check to the expansion of centralized power and had an “unquestionable right” to do so.

At the time of the passage of these resolutions, the reaction from American icons such as George Washington and James Garfield were largely negative.They believed the idea of a state’s right to nullify was the first seed sown in tearing the nation apart. Many people believed Washington and Garfield were at least somewhat vindicated during the South Carolina nullification crisis in the 1830s. However, now, considering the decisive trend of federal government expansion over the last 150 years, has the pendulum swung too far the other way?

The rise of the imperial presidency, the acceptance of judicial review as the highest authority on constitutionality, the passage of the 17th amendment allowing the popular vote of a state’s Senators, and the recent recognition of the term “state’s rights” as a racist dog whistle outside the realm of national debate has led to the autonomous authority of individual states to be chipped away bit by bit.

Perhaps today the lessons and defensive actions prescribed by the Kentucky and Virginia resolutions are more important than ever to heed to return to a more free society.

Andrew Tylock
December 30, 2017 at 01:40AM