In 1798, Thomas Jefferson and James Madison penned the Kentucky and Virginia Resolutions, formally articulating the principles of nullification for the first time. But the resolutions weren't the end of the story. In fact, they were intended as a starting point.
During the summer of 1798, Congress passed four laws together known as the Alien and Sedition Acts. These laws violated several constitutional provisions and represented a gross federal usurpation of power.
The first three laws dealt with the treatment of resident aliens. The Alien Friends Act gave the president sweeping power to deport "dangerous" aliens, in effect elevating the president to the role of judge, jury and "executioner." The Alien Enemies Act allowed for the arrest, imprisonment and deportation of any male citizen of a nation at war with the U.S., even without any evidence that he was an actual threat. These laws unconstitutionally vested judicial powers in the executive branch and denied the accused due process.
The most insidious of the laws was the Sedition Act. It essentially criminalized criticism of the federal government, a blatant violation of the First Amendment.
Recognizing the Alien and Sedition Acts represented a serious threat to the constitutional system, and with few options for addressing the overreach due to Federalist Party control of the federal government, Jefferson and Madison turned to the states.
Jefferson drafted the Kentucky Resolutions and the Kentucky legislature passed a revised version on Nov. 10, 1798. Asserting that "the several States composing, the United States of America, are not united on the principle of unlimited submission to their general government," Jefferson proclaimed that nullification was the proper response to deal with unconstitutional acts.
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.
Just one week later, Jefferson sent a draft of the resolutions to Madison, along with a letter.
I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.
On Dec. 24, 1798, the Virginia Senate passed resolutions penned by Madison, further asserting not only the right, but the duty for states to step in and stop unconstitutional actions.
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.
Taken together, the Kentucky and Virginia Resolutions lay out the principles of nullification. But they did not actually nullify the Alien and Sedition Acts. These non-binding resolutions merely made the case and set the stage for further action.
Correspondence between Jefferson and Madison indicate they didn't plan to stop with the resolutions. They hoped to use them as a springboard for state action against the unconstitutional Alien and Sedition Acts.
Interestingly, we only know of a few letters between the two men during this time period. One would think they would have corresponded frequently to coordinate their strategy. But Madison and Jefferson both faced possible arrest for criticizing the Alien and Sedition Acts and the Federalist Party in power. The Sedition Act was enforced. Among the more than two-dozen people arrested was Democrat-Republican congressman Matthew Lyon of Vermont. He was convicted of violating the act while campaigning for reelection. He actually won his race while in jail. So, Madison and Jefferson had to proceed cautiously. It wasn't until long after the crisis passed that their authorship of the resolutions became public, and Madison indicated in a letter to Jefferson dated Nov. 22, 1799, that he didn't trust the mail.
Some late circumstances change considerably the aspect of our situation, and must affect the line of conduct to be observed. I regret it the more too, because from the commencement of the ensuing session, I shall trust the post offices with nothing confidential, persuaded that during the ensuing twelve-month they will lend their inquisitorial aid to furnish matter for new slanders. I shall send you as usual printed communications, without saying any thing confidential on them. You will of course understand the cause.
But we do have one letter from Jefferson to Madison dated August, 23, 1799, that gives us some insight into their strategy after the resolutions were passed.
The Kentucky and Virginia Resolutions weren't all that well received, particularly by states in the northeast. This is unsurprising because these states were controlled by the Federalist Party. Several, including Massachusetts, passed resolutions of their own condemning the rhetoric of Kentucky and Virginia.
Jefferson asserted that the opposition should not remain unanswered.
I will in the mean time give you my ideas to reflect on. that the principles already advanced by Virginia & Kentuckey are not to be yielded in silence, I presume we all agree.
He then went on to specify three steps.
1. answer the reasonings of such of the states as have ventured into the field of reason, & that of the Commee of Congress. here they have given us all the advantage we could wish. take some notice of those states who have either not answered at all, or answered without reasoning. 2. make a firm protestation against the principle & the precedent; and a reservation of the rights resulting to us from these palpable violations of the constitutional compact by the Federal government, and the approbation or acquiescence of the several co-states; so that we may hereafter do, what we might now rightfully do, whenever repetitions of these and other violations shall make it evident that the Federal government, disregarding the limitations of the federal compact, mean to exercise powers over us to which we have never assented. 3. express in affectionate & conciliatory language our warm attachment to union with our sister-states, and to the instrument & principles by which we are united; that we are willing to sacrifice to this every thing except those rights of self government the securing of which was the object of that compact; that not at all disposed to make every measure of error or wrong a cause of scission, we are willing to view with indulgence to wait with patience till those passions & delusions shall have passed over which the federal government have artfully & successfully excited to cover it's own abuses & to conceal it's designs; fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact…
First, Jefferson advises that they should answer the objections. It seems clear from his tone he feels confident their reasoning will win the day.
Second, he says they should make clear that they believe the federal government has overstepped its authority. He infers that by forcefully making their case, they will clear the path so "that we may hereafter do, what we might now rightfully do." Jefferson doesn't specify what these actions might entail, but based on the resolutions, it follows that they would involve actively blocking the unconstitutional acts.
Third, Jefferson advises taking a conciliatory tone, affirming their commitment to the union, their patience and their confidence that "the American people" will rally to their cause.
In fact, this was the ultimate outcome. The people swept the Federalist Party out of power in the 1800 elections, and Jefferson became president. That was effectively the end of the Alien and Sedition Acts.
But Jefferson made one more point in his letter to Madison, and it demonstrates just how far he was willing to go to fight federal usurpation. Jefferson suggested that secession was an option in the last resort.
Fully confident that the good sense of the American people and their attachment to those very rights which we are now vindicating will, before it shall be too late, rally with us round the true principles of our federal compact; but determined, were we to be disappointed in this, to sever ourselves from that union we so much value, rather than give up the rights of self government which we have reserved, & in which alone we see liberty, safety & happiness.
From this correspondence, it becomes clear that the Kentucky and Virginia Resolutions were intended to set the stage for aggressive action at the state level – up to and including leaving the union. The resolutions were obviously not just a call for the states to protest, or pursue change in the courts or vote the bums out. They were meant to open the door for aggressive state action to stop the exercise of undelegated power.
The Kentucky and Virginia Resolutions offer us a framework to deal with federal overreach. The states were always intended to check federal power. Madison even provided a practical blueprint in Federalist 46 before the Constitution was ratified. But the states must find the courage to act.
Jefferson and Madison risked possible imprisonment to fight for liberty. What will you risk?