Both Jefferson and Madison were keenly aware that a direct assault upon the Alien and Sedition Acts would likely bring on them the same charges of seditious libel as had been leveled against Congressman Cabell of Albemarle. Wholly aside such risk, the personal views of both men were already well established. Madison had resisted from the floor of the House everything from the bank bill forward, as had Jefferson in various capacities from within the Washington administration and later on from Monticello. In fact Jefferson had been supporting challenges to seditious libel through various jury petitions in Virginia.
What became apparent first to Jefferson and then to Madison was the need for a fundamental statement by the peoples of the states or their representatives. Such an act would stand the best chance of awakening Americans to the dangers of the particular constitutional constructions being proffered by the Federalists as well as to the specific abuses in the offending acts. Consequently, both men worked in secret to coordinate the involvement of certain state legislatures in late 1798.
In pursuing this course of action, both men were relying directly on the idea of the hue and cry, the idea noted in Hamilton’s 84th essay. Both produced draft resolutions, Jefferson for Kentucky and Madison for Virginia, that made good on the claim that the states would be “so many sentinels over the persons employed in every department of the national administration.” To that end, both resolutions, as passed by their respective legislatures, Kentucky on November 10 and Virginia on December 21, were purely declaratory in nature.
It is true that in the first case, Kentucky’s language was stronger. The Alien and Sedition Acts were declared to be “void and of no effect,” “void and of no force,” and “utterly void and of no force,” but no interdiction was declared. The state was not going to obstruct federal agents. It was not going to arrest or in any way intercept national authorities. Indeed, it merely instructed its “senators and representatives in Congress” to “procure, at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.”
Jefferson’s original draft announced that “a nullification of the act is the rightful remedy,” but even here, he merely noted that Kentucky was “from motives of regard and respect for its co-States,” communicating with them on the subject in hopes of coordinating a response. The final version approved by the legislature, preserved this communicatory function, but worked through the offices of the governor, rather than a committee of correspondence, which was Jefferson’s original idea. From this, it was hoped, the states would “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.”
Virginia’s version was not far off the mark in tone, but where Kentucky used “void and of no force,”Virginia declared that “the aforesaid acts are unconstitutional.” Publius had already observed that unconstitutional was synonymous with void and of no force. The real difference between the two statements is not found here.
With Virginia’s Resolve, no appeal is made to instruct Congressional representatives, but simply a request that each state take “the necessary and proper measure…for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively or to the people.” Usually counted as far more measured in response, here Madison leaves open the possibility of direct interference through coordinated state actions. Even more peculiar is his use of the phrase found specifically in the Constitution, “necessary and proper.”
In the fourth article of the Virginia Resolve, Madison expounded on his particular grievance against the Bank of the United States: the abuse of the necessary and proper clause. He does not specifically quote the words, but his reference would have been unmistakable to anyone at the time. Thus he lamented the spirit which seeks “to enlarge its powers by forced constructions,” revealing “a design to expound certain general phrases…so as to destroy the meaning and effect of the particular enumerations….” Why use the necessary and proper clause to concludeVirginia’s resolution?
Without using words like “void” or “of no force,” words that one might expect to signal the announcement of a more radical intercession, the Virginia resolve, in point of fact is ominously more radical for what it did not explicitly say. Madison’s choice of words conveyed a sense of urgency that hint at more extreme action: “the States, who are the parties thereto, have the right, and are 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.”
“Arresting evil” and “maintaining rights” are words that do not wait. But aside from communicating the illegality of the offending acts to her sister states,Virginia’s resolve falls silent as to any specific measure or response. Madison simply ended with a call for the “necessary and proper measure.” A startling use of words indeed! It was a slap in the face of Federalists, casting back at them the very clause which they had rendered ambiguous by their own “forced” constructions of the Constitution!
Thus among the earliest acts of interposition was the “hue and cry.”
In his January 1799 statement to explain Virginia’s 1798 resolution, Madison directly noted the duty of “the state legislature to watchfulness.” It was the act of Hamilton’s sentinels fulfilling the role that Publius had set out for them, and it was done in defense of constitutional limits, “to preserve unimpaired the line of partition.” Interestingly, he specifically cited Virginia’s statement of ratification to support this understanding, and then went on to contend for the need of interposition on the part of the states, quite explicitly revising his thoughts since the 39th essay.
Rather than resting all authority for resolving disputes on the national court, Madison drew from his understanding of the people of the states the idea of the Constitution as a national compact, arguing now that the Supreme Court possessed final authority only over the operations of the general government, “but not in relation to the rights of the parties of the constitutional compact, from which the judicial as well as the other departments [executive and legislative] hold their delegated trust.” If the judiciary “may exercise or sanction dangerous powers,” then the states as parties to the compact “must themselves decide in the last resort, such question as may be of sufficient magnitude to require their interposition.”
In its follow-up statement of 1799,Kentucky moved the issue a bit further down the road, observing that a “nullification” would be the “rightful remedy,” but ended only with “its solemn PROTEST.”
In these various statements, the resolves of Virginia and Kentucky made good on the intentions of the state ratifying conventions and set a firmer precedent for future action, though at the time, many of the states responded negatively to their presentations. New York, for example, had fallen into the hands of the Federalists shortly after the ratification of the Constitution and in the wake of anti-French sentiment. But the populations were still very much closely divided, and in the election of 1800, Jefferson and the Republicans were largely victorious outside of the New England states. The influence of the resolves in this outcome is a matter of some debate, but they likely helped to embolden the republican press which had its influence on the elections. In that respect, they were not in vain.
More importantly, the arguments which the resolutions kept alive, had their influence in later very critical debates picked up, not so much by the Jeffersonians or their heirs, but by the New England Federalists, who soon began to resent the actions of the republicans in the nation’s Capital, especially as they related to growing tensions with England and the interference with trade…
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