Nullification and the Kentucky Resolution of 1798

Because the United States was founded as a constitutional republic—one based on certain specific principles, not power or privilege—Americans of all eras frequently raise concerns about federal authority that bear resemblance to debates from earlier times in our history.

A good illustration of this “echo effect” in American politics is the renewed discussion about nullification, prompted by recent headline news: Kim Davis and her refusal to issue marriage licenses to gay couples; “sanctuary cities” where local officials decline to cooperate with the feds in turning over illegal aliens; and Oregon’s legalization of recreational marijuana last month in spite of the prohibitions of the federal Controlled Substances Act.

These episodes call to mind one of the most important cases of nullification in U.S. history: the Kentucky and Virginia Resolutions of 1798, the topic of my book Reclaiming the American Revolution, the first to have been written about this vital episode in more than a century.

In the summer of 1798, amidst fears that the United States would soon be at war with France, Congress enacted the Alien and Sedition Acts. The Acts prohibited criticism of the federal government and gave President John Adams the power to deport any alien he deemed suspicious. This legislation made a mockery of the First Amendment and deprived aliens of basic due process of law.

To combat these constitutional usurpations, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions. In these Resolutions, Jefferson and Madison accused Congress of exceeding its powers and declared the Alien and Sedition Acts null and void. Times were so tense that Jefferson and Madison hid the fact of their authorship because they feared prosecution under the Sedition Act.

Kentucky’s full legislature adopted their state’s Resolution—which called the Acts “unauthoritative, void, and of no force”—in November of 1798. A month later, Virginia followed by declaring its solemn duty to “interpose” to protect the people from the enforcement of the Acts.

At first the American people applauded the Alien and Sedition Acts, but in the elections of 1800 they threw out of office many lawmakers who had voted for them. Jefferson was elected to the presidency, and he suspended all prosecutions brought under these shameful measures. This so-called “Revolution of 1800” brought the crisis of the Alien and Sedition Acts to a close.

From Jefferson and Madison’s correspondence about the Resolutions, and other instances of nullification in early American history, we glean several important lessons. First, as Madison wrote in his Virginia Resolution, state interposition should be used only “in case of a deliberate, palpable, and dangerous” violation of the Constitution. It should not be unsheathed for mere policy disagreements or unwise laws.

Second, the idea of nullification rests on the sovereignty of the people of the several states and cannot rightly be implemented by a mere elected official or legislature. The people exercise their ultimate sovereignty in conventions that are specially elected for this purpose. The best example of this is the ratification of the U.S. Constitution. The Framers would not accept a decision on the Constitution from the state legislatures, but instead instructed the states to hold individual conventions for the express purpose of considering the Constitution and exercising sovereign power. South Carolina held such a special convention in 1832 when it nullified the Tariff of Abominations.

Third, nullification does not create two sets of laws: one for the Union and one for the state that declares a measure void via a convention. The offending law is suspended within the state, but only until, as per Article V of the Constitution, three quarters of the states summon a constitutional convention to determine whether or not to confer the contested power on the federal government. If a constitutional amendment is adopted conferring the power, the nullifying state must obey or abandon the Union.

Finally, nullification is not just a Southern, states’ rights doctrine. The principles of the Kentucky and Virginia Resolutions have been appealed to by states from all parts of the Union: Pennsylvania, Massachusetts,Ohio, Wisconsin, and others.

Measuring the acts of Kim Davis, sanctuary cities, and Oregon by these standards, we see that there has been no real nullification in the Jeffersonian and Madisonian sense. Individuals, officials, and states are protesting federal laws and policies, but there has been no nullification.

Protests, of course, can be healthy. They encourage the people to ponder and discuss liberty and the bounds set by the Constitution on the national government.

Sadly, few Americans know about the Kentucky and Virginia Resolutions and the heroic fight against the Alien and Sedition Acts. With the 217th anniversary of the Kentucky Resolution, we would be well advised to reflect on the controversy of 1798 and the lessons offered for today.