The Kentucky and Virginia Resolutions of 1798
In post-revolution America, despite having just earned through bloodshed liberty from tyranny, we were faced with the specter of our newly formed government already running amok with unlimited power as evidenced by the passage of acts at the federal level that created new powers for the new government that was, Constitutionally, outside their purview. Despite, having just ratified the new Constitution and Bill of Rights (the first 10 amendments which further spelled out the limitations of the newly minted federal government in terms of the natural rights of its citizens and their free exercise thereof), we find a need for the Kentucky and Virginia resolutions of 1798 essentially nullifying several newly passed acts which expanded – unconstitutionally – federal authority and overreach. This is rather surprising as 8 short years earlier, in 1790, Rhode Island was the last colony to ratify the Constitution. It wasn’t like the document wasn’t fresh in the collective consciousness. In all fairness, these documents should not have been needed so soon, but goes to show you how power goes to the heads of even the best intentioned of men.
Moreover, the mentioned Resolutions, penned by Thomas Jefferson and James Madison, serve as more than acts of nullification of illicitly obtained federal power (which it quite succinctly and rightly does). It serves as an overview of these two men’s views on the courts and the determination of a Constitutional federal act. That is what I would like to discuss with you the most, but I feel that to do so we need to look at each of the charters separately section-by-section and then as a whole. I think only then can we get a feel for what Jefferson’s and Madison’s views were. Let us go alphabetically and start with the Kentucky Resolutions of 1798.
The Kentucky Resolution of 1798
1. Resolved, 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 a 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 part, its co-States forming, as to itself, the other party: that the 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.
It is quite clear what Jefferson – the author of the Kentucky Resolutions – thinks of the passage of any act expanding federal powers, especially the Alien and Sedition Acts to which this is a direct response toward. These undelegated powers do not belong at all to the federal government and the passage of the Alien and Sedition Acts was one of the first examples of usurpation of States Rights in these matters. This is also – to my knowledge – one of the first uses of nullification (being a power/right not assigned to the federal government it therefore is left to the several states and/or the people therein), however that isn’t germane to this discussion. He argues rightly that if left to itself – that is the Federal government – to decide what other rights it may or may not have is to itself invalidates the Constitution as having any authority over it, relegating it to so much wasted paper and time. He also argues that the States and the people, having been left the bulk of discretionary power in every matter not directly addressed in the Constitution as being the purview of the Federal government, are actually the sole arbiters of those powers. The final argument is a summation of this, “that the 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”. Jefferson strongly believed in a limited central government. After all, he and his buddies had fought a long and bloody war over these very things (namely a strong, centralized power that ruled without any consideration to limitation of power or liberty of those it ruled over).
2. Resolved, 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 intituled “An Act in addition to the act intituled 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, intituled “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; and that the power to create, define, and punish such other crimes is reserved, and, of right, appertains solely and exclusively to the respective States, each within its own territory.
Another addressing of the same issue. This time going so far as to list the limited crimes for which Congress has the authority to prosecute, and then a vehement rebuttal arguing that any acts that “define, punish crimes, other than so enumerated in the Constitution” are null and void. Once again, the Constitution, the individual states, and the people are the final word on what constitutes a constitutional act.
3. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitutions, that “the powers not delegated to the United States by the Constitution, our prohibited by it to the States, are reserved to the States respectively, or to the people”; and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed. And thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this State, by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference. And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press”: thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press: insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day of July, 1798, intituled “An Act in addition to the act intituled An Act for the punishment of certain crimes against the United States,” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.
Notice the constant, consistent, referral to the 10th Amendment? We’re not even dealing with a government that has gone through 5 election years for President. This is 1798, 8 years after Rhode Island become the final ratifier of the Constitution. Even the supreme court decision that made yelling “Fire!” in a crowded theater illegal (and therefore abridges the first amendment by putting a limit on speech) is, in Jefferson’s words, “void, and of no force.” He even covers that situation, “insomuch, that whatever violated either, throws down the sanctuary which covers the others, arid that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.” It is clear and unequivocal that he believed there be no need to limit – and indeed saw such dangers in such limitations – any form of speech, no matter how ignorant or distasteful it may be. That such may be considered okay – by and large – by today’s standards only shines our own ignorance down upon us as to the dangers of the expansion of federal powers.
4. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. 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, nor prohibited by it to the States, are reserved to the States respectively, or to the people,” the act of the Congress of the United States, passed on the — day of July, 1798, intituled “An Act concerning aliens,” which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.
Hopefully by now you can see a clear, consistent argument against the unlawful expansion of powers and what the proper response of a free people should be. You should also by now know how Jefferson would react in today’s situation. He’d flip his lid and probably die from a massive coronary.
5. Resolved. That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution, has declared that “the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808” that this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens: that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory: that to remove them when migrated, is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.
Nugatory is a new word for me at least. It is defined as meaning “of no value or importance” and “useless; futile”. The Federal government has no power to enact laws that expand its powers beyond those limited to it. None. And because it has no such powers to do so, any laws passed are, well, void. They are without teeth. They aren’t even paper tigers. All this is to reiterate what we should – by now – know of Jefferson’s thoughts on the expansion of powers – whether it is by court case or act of Congress – if it violates the Constitution in anyway, it is in whole null and void and the passage of or rulings in effect toward said expansion is in effect, nugatory.
6. Resolved, That the imprisonment of a person under the protection of the laws of this commonwealth, on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act intituled “An Act concerning aliens” is contrary to the Constitution, one amendment to which has provided that “no person shalt be deprived of liberty without due progress of law”; and that another having provided that “in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense;” the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without heating witnesses in his favor, without defense, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force: that transferring the power of judging any person, who is under the protection of the laws from the courts, to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that “the judicial power of the United States shall be vested in courts, the judges of which shall hold their offices during good behavior”; and that the said act is void for that reason also. And it is further to be noted, that this transfer of judiciary power is to that magistrate of the general government who already possesses all the Executive, and a negative on all Legislative powers.
This section here, in addition to refuting the government once again on the illegal expansion of powers, also yields up an interesting nugget. The extension of Constitutional rights to “alien persons.” This is really interesting, given that this is such a contentious issue today. For Jefferson it was a cut and dry issue. Anyone entering into the United States, by means approved of by the individual state to which he or she entered, has the full protection of the U.S. Constitution while they reside within its borders. Of course this has disastrous consequences in today’s social welfare society (which is another set of nugatory powers).
7. Resolved, That the construction applied by the General Government (as is evidenced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power “to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defense and general welfare of the United States,” and “to make all laws which shall be necessary and proper for carrying into execution, the powers vested by the Constitution in the government of the United States, or in any department or officer thereof,” goes to the destruction of all limits prescribed to their powers by the Constitution: that words meant by the instrument to be subsidiary only to the execution of limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part to be so taken as to destroy the whole residue of that instrument: that the proceedings of the General Government under color of these articles, will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
Herein lies the rub for the social welfare and statist proponents amongst us. Yes, the federal government has a limited means and purposes for levying taxes. No, paying for food stamps, WIC vouchers, and medical procedures is not one of them. Nor are lifetime pensions, infinite healthcare, unlimited secret service protection and a host of other things politicians have granted themselves at our expense. Any such attempt to levy or use taxes beyond the enumerated things “will be a fit and necessary subject of revisal and correction, at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.” While an important issue, the retraction of the previous laws is of greater paramount for Jefferson as they show the greater threats to liberty.
8th. Resolved, That a committee of conference and correspondence be appointed, who shall have in charge to communicate the preceding resolutions to the Legislatures of the several States: to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly, to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; and that therefore this commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them: that nevertheless, this commonwealth, from motives of regard and respect for its co States, has wished to communicate with them on the subject: that with them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge in the last resort of the powers exercised under it, Congress being not a party, but merely the creature of the compact,
I want to break in here because it is greatly important to note that the Congress is not a party of the Constitution, only the several states and those within it, but a creation of the Constitution and is thereby limited by the Constitution and – if need be – by the states as the final arbiters of whether or not a power is rightful for the government to have. It is also clearly stated that “a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis [case for the alliance]) to nullify of their own authority all assumptions of power by others within their limits.” The right of nullification as not only a rightful remedy, but a natural right of the States. There can no longer be any question as to Jefferson’s thought’s on such expansions of federal power at its own whim. It is also worth noting that these resolutions were come to, written, agreed upon, and to be delivered with the understanding that Kentucky sought peaceful resolution of the matter but was ready to do what was needed if it came to that.
and subject as to its assumptions of power to the final judgment of those by whom, and for whose use itself and its powers were all created and modified: that if the acts before specified should stand, these conclusions would flow from them; that the general government may place any act they think proper on the list of crimes and punish it themselves whether enumerated or not enumerated by the constitution as cognizable by them: that they may transfer its cognizance to the President, or any other person, who may himself be the accuser, counsel, judge and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no ramparts now remains against the passions and the powers of a majority in Congress to protect from a like exportation, or other more grievous punishment, the minority of the same body, the legislatures, judges, governors and counsellors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States and people, or who for other causes, good or bad, may be obnoxious to the views, or marked by the suspicions of the President, or be thought dangerous to his or their election, or other interests, public or personal; that the friendless alien has indeed been selected as the safest subject of a first experiment; but the citizen will soon follow, or rather, has already followed, for already has a sedition act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, necessarily drive these States into revolution and blood and will furnish new calumnies against republican government, and new pretexts for those who wish it to be believed that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is everywhere the parent of despotism — free government is
Excuse me from interrupting Jefferson’s magnificent soliloquy, this describes the current state of affairs in this country to a “T” without a doubt. The fears expressed here have become the normal for today and anyone who expresses even reasoned resentment against the current way of doing things is thought of as dangerous, unstable, and unsound not just in the court of popular opinion but in the halls of government, too.
founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which, and no further, our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the government it created, and whether we should be wise in destroying those limits, Let him say what the government is, if it be not a tyranny, which the men of our choice have con erred on our President, and the President of our choice has assented to, and accepted over the friendly stranger to whom the mild spirit of our country and its law have pledged hospitality and protection: that the men of our choice have more respected the bare suspicion of the President, than the solid right of innocence, the claims of justification, the sacred force of truth, and the forms and substance of law and justice. In questions of powers, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning aliens and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the federal compact. And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited government, weather general or particular. And that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own. That they will concur with this commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration that that compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: that they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States (not merely as the cases made federal, casus fœderis but), in all cases whatsoever, by laws made, not with their consent, but by others against their consent: that this would be to surrender the form of government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shalt be exercised within their respective territories.
The results of unchecked federal power now lie before us in this day. Many cheer it on as they believe it to be for the benefit of the masses, but those with eyes opened see it continuously only be for the benefit of an ever expanding government. Jefferson saw back then what unchecked powers given to the federal government (either by court ruling or law passed) would result in, and we stand today in the result of that ever increasing amounts of unchecked power. It is Jefferson himself whom has called for revolution, if need be, if such a thing to occur and here we stand today, idle by the way side, watching a voracious federal government continue to toy with our natural rights. Eroding them – for the common good, of course – ever so slowly. Jefferson would die fighting rather than see it come to this. And of course, we the people, have been complicit in allowing this to happen. Not one of us is innocent of this.
9th. Resolved, That the said committee be authorized to communicate by writing or personal conference, at any times or places whatever, with any person or persons who may be appointed by any one or more co-States to correspond or confer with them; and that they lay their proceedings before the next session of Assembly.
Masterful writing, and a clear lesson on Jefferson’s views on what constitutes an unconstitutional law. To summarize, the federal Congress is not in any way involved in determining what is or is not a lawful execution of the powers they are given. In fact, they are not even party to the agreement that gives them such powers. As such they have no ability to grant itself any power which it is not explicitly stated to be granted in the Constitution. When it does grant itself such powers, it is a rightful remedy – and more importantly a natural right – that the States engage in the act of nullifying any and all acts in cases where the Congress has sought to wrongfully expand its powers. There is no question that Jefferson not only believed the states had the ability to do so, but that it should be done as needed.
The Virginia Resolutions of 1798
These were written by James Madison at the same time as the Kentucky Resolutions, and was done in collaboration with Thomas Jefferson. This was, I believe, a peaceful attempt at correcting early errors in law-making in our early government. We shall discuss what Madison’s views were on what constitutes an unconstitutional law.
RESOLVED, That the General Assembly of Virginia, doth unequivocably express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.
This short, but strongly worded, opening statement sets the tone for the rest of this resolution, namely that it’s the U.S. and Virginia state Constitution which is being defended and will be ‘unequivocably’ defended “against every aggression either foreign or domestic.” Say that today and people accuse you of being a nut job.
That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it’s existence and the public happiness.
Madison definitely did not want anyone to think he was fomenting plans of war or succession. He too believed this could be remedied peacefully and sets out nearly at once to make that clear.
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 the compact; as no further valid that 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.
Madison, then, agrees with Jefferson in the matter of the expansion of federal powers: it is unconstitutional and that the states, being parties to the compact (agreement), are the final arbiters in such matters.
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
Madison here is decrying improper interpretation of general phrases as a means with which to enlarge the powers of the federal government. In this statement he quite possibly is referring to the SCOTUS using such fast and loose definitions in its rulings. For those of us born in the last 30-50 years, it is quite clear how such rulings have been used to create special privileges or define things as being protected, authorized, or granted to the Federal government by the Constitution when in reality no special protections, authorizations, or granting’s are actually allowed either by the courts or the Congress of the United States.
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the “Alien and Sedition Acts” passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thereto; a power, which more than any other, ought to produce universal alarm, because it is levelled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.
Not only does Madison find these acts to be abusive of the Constitution, as these acts pretty much eliminated the courts and the Congress itself, he goes on to point out why it is wrong for these acts to stand.
That this state having by its Convention, which ratified the federal Constitution, expressly declared, that among other essential rights, “the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States,” and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.
Not only did these acts unequivocally and unconstitutionally delegate powers to the federal government that it did not have the power to delegate itself, it did so at the expense of the 1st Amendment. I cannot help but read this with the outrage that the authors of these resolutions must have felt at the passage of such an act. It comes through loud and clear, as does the message that it will not be tolerated.
That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
A clear call to action for the other States to do as it has done in these resolutions as a means of maintaining the proper balance of power established by the Constitution. Neither Jefferson or Madison sought to see their respective resolutions in nullifying this law stand alone, but in unity of the union which they had worked so hard to establish and in so doing strengthen the whole by preserving the compact.
That the Governor be desired, to transmit a copy of the foregoing Resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.
Agreed to by the Senate, December 24, 1798.
Quite clearly both Thomas Jefferson and James Madison not only believed the federal government was finitely limited in its powers by a strict interpretation of the Constitution – regardless if that interpretation came from the courts or the Congress – but that they also viewed each state as individually and collectively having the final say so in what was and was not a constitutional act as passed by the Congress, not the courts. In fact, Jefferson clearly stated in the Kentucky Resolutions that the federal government had no powers in prosecuting crime except “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.” No other crimes, whatsoever. There was no question for either man, nor the men who passed the respective charters in the respective states, on this subject. There was no question that the Alien and Sedition Acts, themselves an ugly law to begin with, being totally unconstitutional in their intended scope and in the creation of new powers for the President.