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Simon Munyan

Professor Carmine Sarracino

English 240

4 December 2016

From Resolution to Dissolution

Introduction

From the founding of the United States, a divide has existed in political philosophy. The

Framers vehemently disagreed on many issues, especially states’ rights. The role of a federal

government was controversial and unclear. This disagreement has prevailed throughout

American history and is the topic of much debate today. The divide was first clearly emerged in

the Kentucky and Virginia Resolutions, two complaints directed at the Alien and Sedition Acts.

Whatever their authors’ intentions, they formed the foundation of the states’ rights argument.

While key to maintaining federalism, the Resolutions were largely misinterpreted, resulting in

divide and conflict, which contributed to fracturing the Union, and lingered on in the Civil

Rights Movement.

The Alien and Sedition Acts

The Resolutions were originally authored as a response to the passing of the Alien and

Sedition Acts in Congress. Both Jefferson and Madison were alarmed by the expansion of

powers of the federal government and of the president. There were three acts in all: two

regarding aliens and one regarding libel and sedition. The first act, entitled “An Act Concerning

Aliens”, states that:

It shall be lawful for the President of the United States at any time during the continuance

of this act, to order all such aliens as he shall judge dangerous to the peace and safety of
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the United States, or shall have reasonable grounds to suspect are concerned in any

treasonable or secret machinations against the government thereof, to depart out of the

territory of the United States…("Transcript of Alien and Sedition Acts (1798)")

In short, this first act gave power to the president to deport aliens who he deems

dangerous. Not only that, but it allowed the president to grant licenses to aliens, allowing them to

remain in the United States. Aliens who had been designated as “dangerous” and had not left the

country could be imprisoned by the federal government up to three years. Under this act, the

states no longer had jurisdiction over aliens in their territory. Rather, the president both judged

them and executed punishment for their infractions as determined by him.

Similar to the first, An Act Respecting Alien Enemies gave powers to the president

regarding aliens of enemy nations. In summary, it states:

All natives, citizens, denizens, or subjects of the hostile nation or government, being

males of the age of fourteen years and upwards, shall be within the United States, and not

actually naturalized, shall be liable to be apprehended, restrained, secured and removed,

as alien enemies. ("Transcript of Alien and Sedition Acts (1798)")

While the first act expanded the powers of the president and consolidated the judicial and

executive jurisdiction in the president, this second act maintains that the courts and states are

permitted to judge and execute the law. Seen in Section 2 of An Act Respecting Alien Enemies:

It shall be the duties of the several courts of the United States, and of each state, having

criminal jurisdiction, and of the several judges and justices of the courts of the United

States, and they shall be, and are hereby respectively authorized upon complaint, against

any alien or alien enemies...and contrary to the tenor or intent of such proclamation, or
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other regulations which the President of the United States shall and may establish in the

premises… ("Transcript of Alien and Sedition Acts (1798)")

In this passage, it is defined that the states have authority to carry out the law. The text

also specifies that jurisdiction is placed in the judges and the courts of these states, not the

executive head. Seemingly, from this passage alone, this act does not increase the powers of the

president. However, in the preceding section, it is states that “the President of the United States

shall be, and he is hereby authorized, in any event, as aforesaid, by his proclamation thereof, or

other public act, to direct the conduct to be observed, on the part of the United States, towards

the aliens who shall become liable, as aforesaid” ("Transcript of Alien and Sedition Acts

(1798)"). While the states were permitted by this act to execute the law cited, their power was

superseded by that of the president, and if a state did not wish to deport an alien enemy, the

president could thus overrule it. This act, like the former, gave the president both judicial and

executive powers regarding alien enemies.

The last and final act, titled An Act in Addition to the Act Entitled “An Act for the

Punishment of Certain Crimes Against the United States”, details law regarding sedition and

libel. The legislation to which it adds, the Crimes Act of 1790, enumerates crimes which the

federal government can prosecute, such as treason, counterfeiting, and piracy. The addition

expands this list to include sedition and libel within the jurisdiction of the federal government.

The first section, which regards sedition, states “that if any persons unlawfully combine or

conspire together, with intent to oppose any measure or measures of the government of the

United States, which are or shall be directed by proper authority...he or they shall be deemed

guilty of a high misdemeanor” ("Transcript of Alien and Sedition Acts (1798)"). Under this act,

individuals may not assemble with intent to subvert law or impede another individual from
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taking political office. Notably, the effect of such conspiracy as outlined in the passage matters

not, but rather the intent in itself is illegal.

Lastly, and perhaps most controversial, is the section concerning libel, synonymously

known as published defamation. The act asserts:

That if any person shall write, print, utter, or publish, or shall cause or procure to be

written, printed, uttered, or published...any false, scandalous and malicious writing or

writings against the government of the United States...then such person, being thereof

convicted before any court of the United States having jurisdiction thereof, shall be

punished by a fine not exceeding two thousand dollars, and by imprisonment not

exceeding two years. ("Transcript of Alien and Sedition Acts (1798)")

Similarly to how the section on sedition places limits on freedom of assembly in the First

Amendment, so too does this passage limit the freedom of the press, as seen in the same

Amendment.

These three acts, when given historical context, are more understandable. At the time of

writing and passage of these acts, both houses of the United States Congress were controlled by

the Federalist Party. Their platform supported a strong, central government over the states.

Furthermore, the relationship between America and other nations, namely Britain, was tenuous.

In light of America being a young nation, it seems reasonable for Congress to pass acts

concerned with national security. The alien acts ensured that non-citizens residing within the

United States were peaceful and not of enemy nations. Furthermore, the section regarding libel

includes in its enumeration of crimes a clause stating that “to aid, or encourage or abet any

hostile designs of any foreign nation against United States, shall be punished” ("Transcript of

Alien and Sedition Acts (1798)"). Not only was the nation concerned with conflict from within,
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but also from without. It makes clear sense, considering all of this, that America was defensive to

external threats in an effort to avoid conflict. The impact it had on states’ rights, however, would

lead to a very different, internal struggle.

Kentucky Resolution

The Kentucky resolution was the first of two primary responses to the Alien and Sedition

Acts. Penned anonymously by Thomas Jefferson and adopted by the Kentucky General

Assembly in 1798, this resolution criticized the Acts for their expansion of federal power and

infringement on states’ rights. The document opens by defining the relationship between states

and the federal government. It states:

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

compact under the style and title of the Constitution for the United States and of the

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… ("The Papers of Thomas

Jefferson")

There is a crucially important word used in this passage: “compact”. The underlying

argument for states’ rights used by both Jefferson and Madison in their respective Resolutions,

compact theory, states, to put in Jefferson’s words, “that to this compact each state acceded as a

state, and is an integral party, its co-states forming as to itself, the other party” ("The Papers of

Thomas Jefferson"). In plainer terms, the states entered into an agreement by which they all

united to form the federal government, and subsequently, the states have the final word in

determining if government acts unconstitutionally. The idea that states referee the federal
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government is iterated by Jefferson. “The Government created by this compact was not made the

exclusive or final judge of the extent of the powers delegated to itself...each party has an equal

right to judge for itself, as well of infractions as of the mode and measure of redress” ("The

Papers of Thomas Jefferson"). According to Jefferson, not only are states authorized in judging

the actions of the Government, but they are also given the right to make their own decision on

how they may treat such actions.

The Kentucky Resolution contains numerous quotations from the Constitution. Jefferson

repeatedly cites the Tenth Amendment, stating “‘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 Papers of Thomas Jefferson"). This follows the policy

known as strict constructionism, a literal interpretation of the Constitution. This argument was

further used by Jefferson to prohibit the federal government from adding to the list of crimes for

which it could prosecute, namely dangerous or enemy aliens, sedition, and libel. Jefferson argued

that these laws violated freedoms of assembly, the press, and speech. Two phrases which are also

repeated numerous times are “void” and “of no force”. The language is immensely significant, as

it was later construed to nullify federal law. Jefferson used it when speaking of unconstitutional

acts by the federal government, citing the alien and sedition acts as “void” and “of no force”.

His specific use of this language in stating “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

unite with this Commonwealth in requesting their repeal at the next session of Congress” ("The

Papers of Thomas Jefferson"). This passage, perhaps one of the most critical, details how states

should go about protesting unconstitutional laws. While many would use these resolutions to
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nullify federal law, Jefferson makes it clear that states must unite and formally protest, but not

ignore federal law.

Virginia Resolution

James Madison anonymously wrote a similar resolution for the Virginia General

Assembly only a month later, in which he makes similar arguments to the Kentucky Resolution,

but with distinct differences in language and sentiment. While Jefferson’s resolution speaks more

of the federal government being subject to the states, Madison writes about protecting the Union

from violations upon it and the Constitution. He begins by declaring that “it is the duty to watch

over and oppose every infraction of those principles which constitute the only basis of that

Union” (Virginia Resolutions of 1798). This is not an argument for states’ rights as much as it is

a pledge to preserve the Constitution and maintain unity.

Similar to the Kentucky Resolution, Madison also mentions the compact formed by the

states, and that “the states who are parties thereto, have the right, and are in duty bound, to

interpose for arresting the progress of evil, and for maintaining their respective limits, the

authorities, rights, and liberties appertaining to them” (Virginia Resolutions of 1798). A key

difference, however, is the use of the word “interpose”. Whereas Jefferson uses “void” and “of

no force”, Madison suggests that states should interpose in unconstitutional actions by the federal

government. Rather than states nullifying laws of the federal government, Madison rather asserts

that states should cooperate and intervene between the states and the federal government to

prohibit unconstitutional acts. In doing so, states may not merely ignore the federal government,

sparking conflict between the two parties. Rather, it insinuates that states and the government

should both come to mutual understanding in regard to unlawful acts and take proper action to

remove them. Madison affirms this in recommending that “the necessary and proper measures
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will be taken by each, for cooperating with this state, in maintaining the Authorities, Rights, and

Liberties, referred to the States respectively, or to the people” (Virginia Resolutions of 1798). In

the case of both Resolutions, it is specified that states must come together to oppose the federal

government in such issues, and not individually act.

Nullification Crisis and Support for Nullification

The Nullification Crisis was one of the first events in American history to revive the

debate between states’ rights and federalism. Several attempts were made from the late 18th to

early 19th century to pass tariff bills in order to protect northern industry from foreign

competition (Houston 4). South Carolina had frequently voiced its opinion against high tariffs,

with well known advocates such as John C. Calhoun. During the economic slump following the

War of 1812, South Carolina particularly suffered. Blame was placed on the tariff policy

following the war, which, according to Houston in A Critical Study of Nullification in South

Carolina, was thought by South Carolinians as a protection and preference to Northern

manufacturing. By the time the Tariffs of 1828 and 1832 were passed, South Carolina had been

convinced that its interests were no longer of importance to the federal government (Houston 4).

The result was South Carolina passing an Ordinance of Nullification, which nullified the tariffs

passed in 1828 and 1832. According to Houston, “Calhoun and his school...cited the Virginia

and Kentucky Resolutions” and “[Governor Taylor’s] resolution...truly breathed the spirit of the

Virginia and Kentucky Resolutions” (Houston 77). The issue with Calhoun’s policy of

nullification was that it declared individual state sovereignty over the federal government. As has

been already discussed, Jefferson and Madison do not state this, but rather that the states as a

whole are sovereign over the federal government, since the states collectively form a compact

with the it. Houston supports this in writing “a careful reading of the Federalist, a rational
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comparison of its various parts, reveals as to essential matters a consistent body of principles in

support of the proposition that the States were not, when the Constitution was framed, and had

never been, separate and independent sovereigns” (Houston 18). The Nullification Crisis was a

clear example of a misinterpretation of the Resolutions, and unfortunately, contributed to the

divide between South Carolina and the federal government, a conflict which would morph into

that between North and South.

Fugitive Slave Act of 1850 and its Opposition

Attempts to nullify the Fugitive Slave Act in Northern states were supported with the

Resolutions and heightened the controversy between North and South. Part of the Compromise

of 1850, the Fugitive Slave Act required that escaped slaves, once captured, must be returned to

their owner. Furthermore, it made it illegal not to arrest runaway slaves and to help fugitive

slaves in providing food, shelter, or other aid. Controversy began on November 13, 1850, when

Vermont passed a bill known as the Habeas Corpus Law. The law “stipulated that the state’s

attorneys had a duty to ‘protect, defend, and procure to be discharged’ any person in Vermont

‘arrested or claimed as a fugitive slave’” (Vermont's 1850 Habeas Corpus Law 261). In

summary, the law made it a duty for officials to help fugitive slaves, entirely contrary to the

Fugitive Slave Act and essentially nullifying it. The sentiment seen in the Nullification Crisis

and, to some degree in the Resolutions, appeared in the Vermont legislature. Houston recalls the

legislature stating “‘that the people of Vermont do not approve of the recent act of Congress

relating to “persons escaping from service to their masters;” holding it to be opposed to the great

principles of liberty; and we will use all constitutional means to procure its repeal’” (Vermont's

1850 Habeas Corpus Law 266). Clearly, the Vermont legislature, inspired by “the Principles of

‘98” decreed by Jefferson and Madison, felt that they could overrule the federal government’s
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action, as they deemed it unconstitutional. This sparked such controversy, that President Millard

Fillmore threatened to send the army into Vermont. By this point, serious divide had formed

between proponents of states’ rights and of federalism, as well as between supporters and

opponents of slavery.

Opposition to School Integration as it Relates to the Resolutions

Opposition to the integration of schools, particularly in the South, cited the Virginia

Resolution in support of nullification of Supreme Court rulings. Considering Brown v. Board of

Education, which decided that school segregation was unconstitutional, figures such as James J.

Kilpatrick arose in opposition. Citing the Virginia Resolution, he inspired southern states to pass

interposition and nullification laws to prevent school integration (Bernstein). The case of Cooper

v. Aaron put down such an attempt in Arkansas and Bush v. Orleans Parish School Board denied

Louisiana’s attempt to pass an interposition act. While Kilpatrick’s attempt may have seemed

futile, he came closer in meeting the criteria Jefferson and Madison laid out for opposing federal

acts than many others before him. Several southern states had attempted to pass nullification

laws, and if they had formed a coalition, may have held more weight in the compact of states

which the Resolutions detailed. The primary flaws in their attempts were failing to unite under

the issue and attempting to contradict a Supreme Court ruling supported by the constitutional

14th Amendment.

Conclusion

Many claim that the Kentucky and Virginia Resolutions were dangerous, destructive, and

dividing. While they certainly may have had this effect, the result was not the fault of the

authors. Both Jefferson and Madison described their devotion and support of the United States

and recognized that the preservation of the Union was beneficial to the states. Under careful
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examination, applying context and common sense, a reasonable conclusion for the Resolutions

emerged. While the right is given to states to oppose unconstitutional acts by the federal

government, they do not have individual sovereignty. Only together as a compact, which the

authors describe, can states oppose the federal government’s overreach. Furthermore, only in

extreme cases, in order to prevent the tyranny that the framers were painfully warry of, should

such action be taken by the states. Overall, while unfortunate consequences came from the

Resolutions, they maintained the balance of powers between the state and federal governments, a

key to preserving personal freedoms we enjoy today.
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Works Cited

Bernstein, Adam. "James J. Kilpatrick, 89, Dies; Conservative Columnist Formerly on

'60 Minutes'" Washington Post. The Washington Post Company, 17 Aug. 2010. Web. 7

Dec. 2016.

Houston, David F. A Critical Study of Nullification in South Carolina. N.p.: Henry

Warren Torrey Fund, n.d. Google Play. Web. 7 Dec. 2016.

Houston, Horace K., Jr. Another Nullification Crisis: Vermont's 1850 Habeas Corpus

Law. 2nd ed. Vol. 77. N.p.: New England Quarterly, n.d. Print.

United States. Kentucky General Assembly. House of Representatives. The Papers of Thomas

Jefferson. By Thomas Jefferson. Princeton University, 2016. Web. 7 Dec. 2016.

United States. Virginia General Assembly. Virginia Resolutions of 1798. By James Madison.

Wikisource, 3 Feb. 2013. Web. 7 Dec. 2016.

United States. Cong. Senate. Transcript of Alien and Sedition Acts (1798). 5th Cong., 2nd

sess. S. Bill. The Avalon Project, n.d. Web. 7 Dec. 2016.