The Kentucky and Virginia Resolutions, drafted by Thomas Jefferson and James Madison respectively, were the first official acts to assert a right in the state governments to declare federal laws unconstitutional. As a response to the Alien and Sedition Acts, they also served to intensify the political opposition between the Democratic-Republicans, who, led by Jefferson, were dissatisfied with the expansion of federal authority, and the Federalists, who controlled both Congress and the presidency. The first Kentucky Resolution was adopted by the Kentucky Legislature in November 1798, and the Virginia Resolution was adopted by the Virginia Legislature one month later.
Both resolutions declared that the federal government was authorized to exercise only the limited powers specified in the U.S. Constitution, and that acts of Congress that exceeded those powers were null and void. They also asserted the controversial position that each state individually retained the power to judge the constitutionality of federal acts and to take whatever measures it deemed proper in light of a violation of the Constitution. The Kentucky Resolution went further, hinting at rebellion as the possible consequence of continued usurpations of power by the federal government.
The resolutions proceeded to declare the Alien and Sedition Acts unconstitutional. The Alien Act, by enabling the president without judicial hearing to designate resident aliens for deportation, violated the constitutional separation of powers between the executive and judicial departments. The Sedition Act, which penalized criticism of the government and of public officials, not only was unauthorized by any of the grants of power contained in the Constitution, but also was contrary to the First Amendment protection of the freedom of speech. The resolutions also protested against the broad interpretation given by Federalists to the General Welfare Clause of the Constitution, which authorizes the federal government to make appropriations of money, and the Necessary and Proper Clause, which empowers Congress to pass all laws necessary and proper to carry its other constitutional powers into effect. They contended that the expansive interpretation of these clauses transformed the federal government, for all practical purposes, into a government of unlimited powers.
Although the Kentucky and Virginia Resolutions were transmitted to the legislatures of the other states, these declined to adopt the positions they contained. Their historical significance consists in their support for the cause of states’ rights and in the foundation they laid for the theory of nullification and ultimately for civil war.
Caleb William Loring, Nullification, Secession, Webster’s Argument, and the Kentucky and Virginia Resolutions, Considered in Reference to the Constitution and Historically (New York: G. P. Putnam’s Sons, 1893); Ethelbert Dudley Warfield, The Kentucky Resolutions (New York: Putnam, 1894); and William J. Watkins, Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and their Legacy (New York: Palgrave Macmillan, 2004).