By: Mike Maharrey
Would the proposed Constitution create the limited federal government promised?
That was the central question facing the ratifying conventions as America considered adopting the new Constitution. Those in favor of ratification swore it would. But many remained skeptical, arguing that the new general government would undoubtedly try to expand its power and that the Constitution would not sufficiently restrain it.
It only took a decade for the federal government to prove the anti-federalists right.
During the summer of 1798, Congress passed, and President John Adams signed into law, four acts together known as the Alien and Sedition Acts. With winds of war blowing across the Atlantic, the Federalist Party majority wrote the laws to prevent “seditious” acts from weakening the U.S. government. Federalists utilized fear of the French to stir up support for these draconian laws, expanding federal power, concentrating authority in the executive branch and severely restricting freedom of speech.
Two of the Alien Acts gave the president the power to declare foreign U.S. residents an enemy, lock them up and deport them. These acts vested judicial authority in the executive branch and obliterated due process. The Sedition Act essentially outlawed criticizing the federal government – a clear violation of the First Amendment.
Recognizing the grave danger these acts posed to the basic constitutional structure, Thomas Jefferson and James Madison drafted resolutions that were passed by the Kentucky and Virginia legislatures on Nov. 10 and Dec. 21, 1798, respectively. The “Principles of ’98” formalized the principles of nullification as the rightful remedy when the federal government oversteps its authority.
The Alien and Sedition Acts outraged many in Kentucky. Several counties in the Commonwealth adopted resolutions condemning the acts, including Fayette, Clark, Bourbon, Madison and Woodford. A Madison County Kentucky militia regiment issued an ominous resolution of its own, stating, “The Alien and Sedition Bills are an infringement of the Constitution and of natural rights, and that we cannot approve or submit to them.” Several thousand people gathered at an outdoor meeting protesting the acts in Lexington on August 13.
The push to nullify the Alien and Sedition Acts was not simply the act of opportunistic politicians. It rose out of the passionate demands of the citizenry in Kentucky, as well as Virginia.
Jefferson penned the original draft of the Kentucky Resolutions within a month of Congress passing the Sedition Act.
“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.”
After outlining each constitutional violation and overreach of federal power, Jefferson called for action – nullify now!
“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.” [Emphasis added]
Jefferson sent former Virginia ratifying convention delegate Wilson Cary Nicholas a draft of the resolution, likely hoping the state legislator could get them introduced in Virginia. In October, 1798, Wilson indicated that state representative John Breckinridge was willing to introduce the resolutions in Kentucky. Breckinridge suffered from tuberculosis and made a recuperative trip to Sweet Springs, Va. late in August of that year. Nicholas likely gave the Kentucky lawmaker a copy of Jefferson’s draft during that trip.
On Nov. 7, 1798, Gov. James Garrard addressed the Kentucky state legislature, noting the vehement opposition to the Alien and Sedition Acts. He said Kentucky was, “if not in a state of insurrection, yet utterly disaffected to the federal government.” And noted that the state “being deeply interested in the conduct of the national government, must have a right to applaud or to censure that government, when applause or censure becomes its due,” urging the legislature to reaffirm its support of the U.S. Constitution while, “entering your protest against all unconstitutional laws and impolitic proceedings.”
That same day, Breckinridge announced to the House he intended to submit resolutions addressing Garrard’s message. The following day, the Fayette County lawmaker followed through, introducing an amended version of Jefferson’s draft. Most notably, Breckinridge omitted the word nullification from the actual version considered by the Kentucky legislature, seeking to moderate the tone of the resolution. Removal of the nullification reference apparently didn’t bother Jefferson, and in fact, did little to change the fundamental thrust of the resolution. By declaring the Alien and Sedition Acts unconstitutional, null and void, the Kentucky legislature voted on a nullification resolution, even with the actual word omitted.
The resolution passed the House on Nov. 10 with only three dissenting votes. The Senate unanimously concurred three days later, and Gov. Garrard signed the resolution on Nov. 16.
Kentucky followed up with a second resolution affirming its position in 1799, notably including the word “nullification,” omitted in the final version of the Kentucky Resolutions of 1798 passed by the state legislature.
“The several states who formed that instrument (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.”
Jefferson’s principles have endured for over 220 years despite relentless attacks and demagoguery. Americans have appealed to the ideas brilliantly articulated in the Kentucky Resolutions to protect free speech, to promote economic justice, to stop military conscription and to protect the rights of blacks during the fugitive slave era.
Jefferson’s words leave no doubt – nullification was the rightful remedy, and it remains so today.
Author’s Note: Much of this article was excerpted from “Our Last Hope: Rediscovering the Lost Path to Liberty.” Pick up a copy at the Tenth Amendment Center store HERE.