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).