Virginia and Kentucky Resolves
The resolves expressed the Republicans’ theory of the limited nature of the grant of power to the federal government under the U.S. Constitution. This theory was buttressed by the tenth amendment, which stipulates that “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.” Because the Constitution did not give Congress the express power to provide for the expulsion of aliens who had committed no crimes and whose countries were not at war with the United States, the Republicans reasoned that the provisions of the Alien and Sedition Acts that provided for such deportation proceedings were unconstitutional. Likewise, Congress had not been given the express power to impose punishments for seditious libel, leading Republicans to conclude that these provisions were unconstitutional.
Jefferson and Madison asserted in the resolves that state legislatures had the right to determine whether the federal government was complying with the mandate of the Constitution. Under their compact theory of the Constitution, they argued that the grant of power to the federal government was in the nature of an authorization to act as an agent for the individual state legislatures. The resolves maintained that the individual state legislatures retained the ultimate sovereignty of the people. Therefore, state legislatures, as equal parties to the Constitution, had the right to determine whether the federal government was complying with the original agency directives, and they had the right to declare noncompliance. Jefferson and Madison also argued that the states had the right to be released from the compact (the Constitution) if compliance was not forthcoming, thereby suggesting that secession from the Union was legitimate.
Jefferson, in the second of the Kentucky Resolves, contended that the “sovereign and independent states” had the right to “interpose” themselves between their citizens and improper national legislative actions and to “nullify” acts of Congress they deemed unconstitutional. The Federalists strenuously objected to this theory, fearing that the federal government would be seriously weakened. The Federalists argued that only the federal courts could rule on the constitutionality of the Alien and Sedition Acts, which they said represented valid exercises of implied powers in time of national crisis. The acts, they argued, were authorized by Article I, Section 8, Clause 18, of the Constitution, which directs Congress “to make all Laws which shall be necessary and proper for carrying into Execution” the powers vested by the Constitution in the government of the United States. Because the federal government was vested with the power of conducting the national defense, the Federalists asserted, exercises of reasonable security measures, such as the Alien and Sedition Acts, were permissible.
No other state legislatures passed resolves in support of those of Virginia and Kentucky, including the legislatures of Republican-controlled states, in large part because of opposition to France, based on the xyz affair in which the French refused to recognize U.S. diplomats and demanded bribes before any such recognition would be forthcoming. In this political climate, state legislatures supported the Alien and Sedition Acts.
The acts expired or were repealed between 1800 and 1802, after Jefferson became president. Nevertheless, the theories of limited federal government and nullification remained popular during the early nineteenth century. New England states asserted nullification during the war of 1812, and South Carolina asserted it in opposition to federal tariff legislation in 1832. South Carolina statesman and political theorist JOHN C. CALHOUN further developed Jefferson’s theory, giving the states the right to dissolve their contractual relationship with the federal government rather than submit to policies they saw as destructive to their local self-interests. These ideas ultimately became the legal justification for the secession of Southern states from the Union in 1861.