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Volume 16, Number 8
Live Free or Separate
by William J. Watkins, Jr.
November and December mark the bicentennial of the Kentucky and Virginia Resolves. Penned by Jefferson and Madison, the Resolves are peerless for their brief but masterful explication of the Constitution. Though there will be no parades or celebrations of the Resolves 200th birthday, the subjects--formerly citizens--of our great welfare-warfare state need to reacquaint themselves with the Resolves principles. Like no other document, the Kentucky and Virginia Resolves mark the path to a return to constitutional government.
The impetus behind the Resolves was the passage of the Alien and Sedition Acts. The Acts were the response of the Federalist-dominated Congress and President John Adams to the French Revolution. American relations with France had deteriorated over several years. The Neutrality Act of 1794 and Jays Treaty of 1795 angered the French because the measures effectively repudiated treaty obligations the United States owed to France. Consequently, the French minister was withdrawn from Philadelphia and the French began to arbitrarily seize American shipping on the high seas.
Within a year after the ratification of Jays Treaty, which Madison described as "an insidious instrument," the French had seized or captured over 300 American vessels. The French actions were acts of war and an unofficial naval war raged between the two nations. Canards abounded about a possible French invasion and the possibility that Vice President Jefferson and other Republicans would link up with French armies and overthrow the government.
Matters worsened with the XYZ Affair, in which American emissaries were denied access to the French Directory government and insulted by agents of Talleyrand. X,Y, and Z demanded a bribe, a loan for France, and an apology for anti-French statements made by President Adams as a prerequisite for negotiations. Once Americans learned of the treatment of the emissaries, "Millions for defense, not one cent for tribute" became the national cry.
Against such a backdrop the Federalists passed the Alien and Sedition Acts. As is often the case with real and contrived emergencies, the national government used the crisis to increase its powers. The Sedition Act, a flagrant violation of the First Amendment, was the worst of the lot and essentially made criticism of the U.S. government a crime. Those convicted of sedition faced fines up to $2000 and a possible two-year prison sentence.
Jefferson saw that the true aim of the Sedition Act was not to protect the country from supposed agents of Jacobinism, but "the suppression of the Whig presses." And indeed the Federalists brought suit against the most influential Republican newspapers in Philadelphia, Boston, New York, and Richmond. The authorities even fined one harmless village drunk for stating his hopes that the wad from a cannon saluting the President would "hit Adams in the arse."
As war fever gripped Philadelphia, Jefferson retreated to Monticello to orchestrate the response. To Jefferson, the Acts were "merely an experiment on the American mind, to see how far it will bear an avowed violation of the Constitution." Thus, the Resolves were not merely protests against despotic legislation, but protests against an interpretation of the Constitution that would lead to a centralized government like the one the colonists had just seceded from.
The Kentucky Resolve averred that the states were not "united on the principles of unlimited submission to their General Government" insofar as they had only delegated definite powers. Thus, "whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force."
The Resolve explicitly denied that the national government, through the Supreme Court or otherwise, was the judge of its own powers. If it could judge its own powers, this would be akin to an agent, rather than the principal, determining the breadth of the agents authority. Thus, the parties to the compact--the people of the several states--must have the final word on the constitutionality of national actions.
Similar to the Kentucky Resolve, Madison in the Virginia Resolve emphasized that the national governments powers were "limited by the plain sense and intention of the instrument constituting the compact." And that in case of "deliberate, palpable, and dangerous exercise of other powers," the states were duty bound "to interpose for arresting the progress of the evil." Madison did not see interposition as a remedy for any disagreement with the central government --only for dangerous violations of the Constitution.
Fortunately, tensions were diffused as President Adams wisely sought peace with France. However, the general outrage at the partisanship and extra-constitutional government of the Federalists led to the so-called Revolution of 1800, which brought to power the Jeffersonian Republicans and their beliefs in a strict construction of the Constitution, states rights, and freedom from taxes and debt. Jefferson was elected president after 36 votes in the House of Representatives and the unconstitutional Sedition Act, after 25 arrests and 14 indictments, expired on midnight just before he took office.
Historians who have not ignored the Resolves have vilified them as contrary to the command of the Constitution; the logic of the Resolves, they say, points directly toward secession. But those who heap abuse on the Resolves disregard the principles behind the federal union. The Americans who seceded from Great Britain valued the right of a people to govern themselves.
For example, when Virginia ratified the Constitution it made clear that if the national government attempted to aggrandize itself, the delegated powers could be "resumed." Rhode Island also unequivocally stated that "the powers of government may be resumed by the people whensoever it shall become necessary to their happiness."
Clearly, the only way the delegated powers can be resumed is through secession. Thus, rather than purveying an alien doctrine, the Resolves simply affirmed what most took for granted-viz, the right of the people of a state to withdraw from the union.
Though much has changed since Jefferson and Madison wrote the Kentucky and Virginia Resolves, the nature of power remains the same: power can only be checked by power. Under the Constitution the states were to be the guarantor of a limited national government. Unfortunately, since at least Appomattox the national government has roamed about uncontrolled and thus the people have lost much liberty.
Freedom, however, can be regained. No new theories or plans are needed. Jefferson and Madison have done the work for us. If we will follow the word and spirit of the Kentucky and Virginia Resolves, a return to a limited and constitutional government is possible. Hence, the bicentennial of the Resolves is well worth celebrating.
William J. Watkins, Jr., is a student at the University of South Carolina Law School and a member of the South Carolina Law Review.
FURTHER READING: James Jackson Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia (Chicago: Henry Regnery Company, 1957); Albert Jay Nock, Mr. Jefferson (Delavan, Wisc.: Hallberg Publishing, 1983); James Morton Smith, Freedoms Letters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956).