The Principles of 1798

  • William J. WatkinsJr.

Abstract

In the waning months of 1798, the legislatures of Kentucky and Virginia voiced their objections to the Federalists’ Alien and Sedition Acts. Introduced by John Breckinridge, the Kentucky Resolutions were adopted by the state House of Representatives on November 10, 1798, and by the state Senate on November 13, 1798. One month later, John Taylor of Caroline offered similar resolutions in the Virginia legislature. The state House of Delegates approved the Virginia Resolutions on December 21, 1798, and the state Senate concurred three days later. Unbeknownst to contemporaries, the drafts of the Kentucky and Virginia Resolutions were prepared by Thomas Jefferson and James Madison, respectively. The involvement of a sitting vice president and the Father of the Constitution indicates the severity of the situation. The Republican Party was replete with philosophers, jurists, and essayists— most of whom were familiar with the core concepts of the Constitution. Rather than deferring to others, Jefferson and Madison took it upon themselves to contest Federalist dogma. In but a few hundred words, the Kentucky and Virginia Resolves explained the fundamental principles of the Constitution and challenged the rationale of the Alien and Sedition Acts. Though written over two centuries ago, the Resolves’ insights into the American experiment with self-government remain instructive as we continue to debate the proper roles of the state and national governments.

Keywords

Migration Posit Tate Arena Nited 

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Notes

  1. 2.
    See Adriene Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” 5 William and Mary Quarterly 145, 148–50 (1948);Google Scholar
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  3. 6.
    3 Elliots Debates p. 18. Though an opponent of ratification, Patrick Henry also recognized the role of the state governments. “If there be a real check intended to be left on Congress,” warned Henry, “it must be left in the state governments.” 3 Elliots Debates p. 174. See also Roger Sherman, Observations on the New Federal Constitution, in Colleen A. Sheehan and Gary L. McDowell, eds., Friends of the Constitution: Writings of the “Other” Federalists 1787–8 (Indianapolis, Ind.: Liberty Fund, 1998) p. 269 (observing that the state legislatures would “be a powerful and effective check to [the national government] interfering with [the states’] jurisdiction”).Google Scholar
  4. 10.
    “Resolutions Adopted in Prince Edward County, Virginia,” in the Kentucky Gazette, November 7, 1798. See also Resolutions of Clark County, Kentucky, in Ethelbert Dudley Warfield, The Kentucky Resolutions of 1798: An Historical Study (New York: G.P Putnam’s Sons, 1894) pp. 41–2. The resolves of these two counties are typical of those passed on the local level in Kentucky and Virginia.Google Scholar
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    Declaration and Resolves of the First Continental Congress, in David L. Brooks, ed., From Magna Carta to the Constitution: Documents in the Struggle for Liberty (San Francisco, Cal.: Fox & Wilkes, 1993) p. 53.Google Scholar
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    See Lance Banning, The Sacred Fire of Liberty: James Madison & the Founding of the Federal Republic (Ithaca, N.Y.: Cornell University Press, 1995) p. 443 n. 30. This difference between ultimate sovereignty and legislative sovereignty is ably expressed in the instruction given by the people of Mecklenburg, North Carolina, to their delegates to the provincial congress: 1 st. Political power is of two kinds, one principal and superior, and the other derived and inferior. 2nd. The principal supreme power is possessed by the people at large, the derived and inferior power by the servants which they employ. 3rd. Whatever persons are delegated, chosen, employed and intrusted by the people are their servants and can possess only derived inferior power. 4th. Whatever is constituted and ordained by the principal supreme power can not be altered, suspended or abrogated by an other power, but the same power that ordained may alter, suspend and abrogate its own ordinances. 5 th. The rules whereby the inferior power is to be exercised are to be constituted by the principal supreme power, and can be altered, suspended and abrogated by the same and no other. Instructions to the Delegates From Mecklenburg, North Carolina, to the Provincial Congress at Halifax, in 1Google Scholar
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    Even as the union became more consolidated, this division of sovereignty was readily apparent to a perspicacious visitor. Alexis de Tocqueville, touring the United States in the 1830s, observed of the Constitution “that the principal aim [of the Framers] was to divide the sovereign authority into two parts. In the one they placed the control of all general interests of the Union, in the other the control of the special interests of its component states.” 1 Alexis de Tocqueville, Democracy in America (New York: Vintage Classics, 1990) p. 146.Google Scholar
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    See, e.g., Brutus No. 1, in Ralph Ketcham, ed., The Anti-Federalist Papers and the Constitutional Convention Debates (New York: Penguin Books USA Inc., 1986) pp. 270–80.Google Scholar
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    Such a generous view of the national government’s powers was the hallmark of Hamilton’s constitutional philosophy. As Clinton Rossiter has observed: “T[he] rule of Hamiltonian constitutionalism can be reduced, not merely to one phrase, but to one word: liberality. To him the Constitution was more properly viewed as a grant of powers than as a catalogue of limitations. He searched in it almost always for encouragement rather than dissuasion, for ways to get things done rather than ways to keep things from being done.” Clinton Rossiter, Alexander Hamilton and the Constitution (New York: Harcourt, Brace & World, Inc., 1964) p. 189.Google Scholar
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    Annals of Congress, 1st Congress, 3rd sess., p. 1946, February 3, 1791; see also H. Jefferson Powell, “The Original Understanding of Original Intent,” 98 Harvard Law Review 885, 887–8 (1985) (observing that “the original intent relevant to the constitutional discourse was not that of the Philadelphia framers, but rather that of the parties to the constitutional compact”). See Rakove, supra note 44, 339–65 (discussing Madison’s originalism).Google Scholar
  21. 61.
    TJ to Elbridge Gerry, January 26, 1799, WTJ 9:17. John Taylor expressed similar sentiments in the Virginia House of Delegates during the debate on the Virginia Resolutions, arguing that the state ratification debates “ought to be looked upon as a contemporaneous exposition of the … constitution.” Debates in the House of Delegates of Virginia, on Certain Resolutions Before the House (Richmond, Va.: Thomas Nicolson, 1798) p. 8. For the view that original intent should play no part in constitutional interpretation, see Laurence H. Tribe & Michael C. Dorf, On Reading the Constitution (Cambridge, Mass.: Harvard University Press, 1991) pp. 8–13.Google Scholar
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    David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, V.A.: University of Virginia Press, 1994) p. 203.Google Scholar
  23. 97.
    John Taylor to TJ, June 25, 1798, in 2 John P Branch Historical Papers 253, 276 (1908). Evidence of influence is apparent inasmuch as Jefferson made lengthy notes on the letter. See Robert E. Shalhope, John Taylor of Caroline: Pastoral Republican (Columbia, S.C.: University of South Carolina Press, 1980) p. 248 n. 116.Google Scholar
  24. 100.
    John Taylor, Construction Construed and Constitutions Vindicated (New York: De Capo Press, 1970) p. 131. As David Mayer has observed, Jefferson’s opinion of judicial review “changed most dramatically over time.” Mayer, supra note 70, p. 257. In June 1787, Jefferson responded to Madison’s ill-conceived proposal for vesting the national government with negative over all state laws by suggesting “an appeal from the state judicatures to a federal court in all cases” involving a national question. TJ to JM, June 20, 1787, PTJ 11:481. Though Jefferson recognized that a supreme court might encroach upon the jurisdiction of the state courts, he believed that Congress would “watch and restrain” the federal court. Ibid. The Philadelphia convention apparently opted for a federal court to decide controversies concerning the scope of state and national powers, see EederalistNo. 39, p. 194 (James Madison) (Bantam Books, ed., 1982), but over time Jefferson became one of the federal judiciary’s biggest critics. Jefferson believed a written Constitution provided certainty and security, see TJ to Wilson Cary Nicholas, September 7, 1803, VCCG p. 249, and saw liberal interpretation by the federal judiciary turning the document into “a mere thing of wax … which they may twist and shape into any form they please.” TJ to Spencer Roane, September 6, 1819, WTJ 12:237. Toward the end of his life, Jefferson believed the people gathered in convention, rather than the Supreme Court, to be the final arbiter of the Constitution. See TJ to William Johnson, June 12, 1823, WTJ 12:259.Google Scholar
  25. 104.
    Ibid., p. 534. See also St. George Tucker, Of the Several Forms of Government, in Clyde N. Wilson, ed., View of the Constitution of the United States (Indianapolis, Ind.: 1999) p. 32 (observing that if government “becomes corrupt, the people will probably find the necessity of a resumption of the sovereignty, in order to correct the abuses, and vices of the government”).Google Scholar
  26. 111.
    Though the American Revolution is not often described in terms of secession, it was a secession. Secession is generally defined as “[t]he act of withdrawing from membership in a group.” Blacks Law Dictionary 940 (6th ed. 1991). At its essence, “the American Revolution was a successful attempt by a part of the British Empire … to secede from that empire.” Allen Buchanan, Secession: The Morality of Political Divorce from Fort Sumter to Lithuania and Quebec (Boulder, Col.: Westview Press, 1991) p. 69.Google Scholar
  27. 122.
    John Mitchell Mason, The Voice of Warning to Christians on the Ensuing Election of a President, in Ellis Sandoz, ed., Political Sermons of the American Founding Era 1730–805 (Indianapolis, Ind.: Liberty Press, 1991) p. 1425.Google Scholar
  28. 124.
    TJ to Spencer Roane, September 6, 1819, WTJ 12:136. Some Republicans, however, thought the Revolution of 1800 to be but a change in men, and thus insufficient to remedy the flaws in the Constitution exposed by Federalist rule. See generally Norman K. Risjord, The Old Republicans: Southern Conservatism in the Age of Jefferson (New York: Columbia University Press, 1965). For an example of the amendments suggested, see Wilson Cary Nicholas to John Taylor, November 19, 1807, in David N. Mayer, ed., “Of Principles and Men: The Correspondence of John Taylor of Caroline with Wilson Cary Nicholas, 1806–1808,” 96 Virginia Magazine of History and Biography 370, 370–1 (1988).Google Scholar
  29. 125.
    TJ, A Summary View of the Rights of British America, in Lloyd S. Kramer, ed., Paine and Jefferson on Liberty (New York: The Continuum Publishing Company, 1988) pp. 9 and 11.Google Scholar

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© The Independent Institute 2004

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  • William J. WatkinsJr.

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