1798-1799
Primarily crafted by Thomas Jefferson in protest to the Alien and Sedition Acts, the Kentucky Resolutions declared that states had the authority to nullify federal legislation that they believed to be unconstitutional.
Between June 18 and July 25, 1798, the fifth United States Congress enacted four bills collectively known as the Alien and Sedition Acts. Introduced and supported by members of the Federalist Party, the legislation was designed to stifle criticism of President John Adams' foreign policy related to France and Great Britain. The Alien Acts authorized the president to deport immigrants that he believed to be dangerous, and they empowered the government to imprison and deport, without cause, any male immigrants from countries at war with the United States.
The Sedition Act made it illegal for any persons (citizens or aliens) to "combine or conspire together, with intent to oppose any measure or measures of the government of the United States" or for anyone to "write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States . . . ."
Members of the Democratic-Republican Party, led by Thomas Jefferson and James Madison, viewed these acts to be in violation of the United States Constitution. At that time, the doctrine of judicial review had yet to be established, thus the fledgling nation had no established protocol for challenging the constitutionality of legislation enacted by Congress.
Jefferson, who was Vice President of the United States at the time, responded to the controversial laws by anonymously authoring one, and possibly two, rejoinders that were collectively known as the Kentucky Resolutions or the Kentucky Resolves. The legislature of the Commonwealth of Kentucky adopted the two documents on November 16, 1798 and December 3, 1799 and encouraged other states to join in the protest against the Alien and Sedition Acts.
Jefferson's personal correspondence indicates that he penned an undated initial draft of the first Kentucky Resolution sometime before October 4, 1898. In the introductory paragraph of that draft, Jefferson argued that "the several states composing the US. of America are not united on the principle of unlimited submission to their general government." Instead, Jefferson asserted that the states "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." Based upon the his strict interpretation of the Constitution, which specifically enumerated the powers of the federal government, Jefferson concluded "that whensoever the General government assumes undelegated powers, it’s acts are unauthoritative, void, & of no force." He went on to add that each state "has an equal right to judge for itself . . . as of the mode & measure of redress."
Jefferson created a second draft, also undated, before October 4, 1898. In that version, Jefferson once again asserted that individual state governments held the authority to nullify federal legislation that they believed were unconstitutional. His correspondence also suggests that he may have intended for the first resolutions to be introduced in Virginia or North Carolina. When the scheduled convening of the legislatures in those states precluded an early introduction of the resolves, Jefferson learned that Kentucky presented another possibility.
On October 4, 1798, Wilson Cary Nicholas, Jefferson's friend in the Virginia House of Delegates, informed Jefferson that Representative John Breckinridge could serve as a conduit for introducing the resolutions in the Kentucky legislature. Sometime in August, Nicholas furnished Breckinridge with a copy of Jefferson's work, which Breckinridge copied and perhaps edited.
Breckinridge proposed the Kentucky Resolutions to the state legislature on November 8, 1898, and the commonwealth's representatives approved them on November 10. The state senate unanimously endorsed the resolves on November 13, and Kentucky Governor James Garrard signed them on November 16, 1798.
Meanwhile, Virginia's state government passed a similar but less strident set of resolutions. Penned by James Madison, the Virginia Resolutions held that state governments could collectively interpose themselves between their citizens and the federal government for the protection of the people, when the federal government acted in an unconstitutional manner.
Both sets of resolutions were printed and forwarded to Congress and each of the other states.
As expected, they received little support from the Federalists who still controlled the national government. More discouraging to the Democratic-Republicans was the reaction of the other states. In February 1799, Delaware's legislature was the first to reply, stating that it considered "the Resolutions from the State of Kentucky [Virginia], as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendencies, and therefore not a fit subject for the further consideration of the General Assembly." February and March brought similar negative reactions from Rhode Island, Massachusetts, and New York. In May, Connecticut and New Hampshire expressed their disapproval. Vermont did likewise in October.Maryland, Pennsylvania, and New Jersey did not send replies, but they did pass declarations against the resolutions. Thus, ten of the other fourteen states expressed their disapproval, and surprisingly, no southern state supported or even took a position on the resolutions.
When the Kentucky Legislature reconvened in November 1799, its representatives felt compelled to address the lack of support the other states had demonstrated for the 1798 resolutions. Thus, on December 3, 1799, the legislature approved a second set of resolutions. The Kentucky Resolutions of 1799 countered any suspicions of treasonous intent by stating that Kentucky "does now unequivocally declare its attachment to the Union."
Still, the legislature reaffirmed its commitment to the doctrine of nullification, with a subtle, yet significant distinction. The Resolutions of 1798 implied that "each state to itself" held the authority to declare federal acts "void, and of no force" and to "take measures of its own for providing that . . . acts . . . of the General Government not plainly and intentionally authorized by the Constitution, shall (not) be exercised within their respective territories." The Resolutions of 1799, cast nullification, as a collective prerogative of the states. The second document declared that "that the several states who formed (the Constitution) . . . have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy."
The Resolutions of 1799 concluded by declaring that the Kentucky was entering a "SOLEMN PROTEST" against the Alien and Sedition Acts, yet despite the commonwealth's endorsement of nullification, it would "bow to the laws of the Union" while continuing to "to oppose" those acts in a "constitutional manner."
Although the Kentucky Resolutions sewed the seed of nullification, their immediate impact on the nation's history was minimal. During the general election of 1800, Jefferson and the Democratic-Republicans made the unpopular Alien and Sedition Acts a major campaign issue and emerged victorious. Once in power, they allowed the acts to expire. Nonetheless, the Kentucky Resolutions did have a major impact on American history three decades later when John C. Calhoun and other South Carolina leaders brought the nation to the brink of civil war during the Nullification Crisis of 1833, when they resurrected the doctrine of nullification in protest of the Tariffs of 1828 and 1832.
