The Virginia and Kentucky Resolutions Reconsidered: "An Appeal to the Real Laws of Our Country"

Abstract

IN 1798, AFTER A DECADE OF POLITICAL DEFEATS, VIRGINIA REPUBLICANS faced gravest scenario contemplated in their ideology: federal government, no longer headed by a Virginian Cincinnatus who had proven himself willing to relinquish power, stood on a war footing. Despite what Republicans understood as nation's moral obligation, Federalists finally had taken sides in European wars in opposition to republican France. This decision had led them also to expand American army and augment American navy. In addition, as Republican thought predicted. Federalists had taken drastic measures aimed at tamping down domestic dissent. With passage of Alien and Sedition Acts, it seemed that Federalist majority in Congress might guarantee itself a permanent domination. The Sedition Act prohibited all criticism of the government of United States, or either house of Congress ... or (but did not specifically exempt from criticism vice president--who, of course, was Thomas Jefferson), while Alien Friends Act subjected friendly foreigners--including Representative Albert Gallatin, a leading Republican--to government's arbitrary control. President John Adams, Jefferson's onetime revolutionary colleague, seemed a happy convert to cause of monarchism. Jefferson, recognized leader of Republican opposition, decided to forgo candid expression of his sentiments even in letters to bosom friends lest Federalist postmasters, whom he suspected of rifling through his mail, expose him to prosecution. At end of their collective rope (or at least imagining a gallows in intermediate future) Republican high command lit upon a strategy: it would have Virginia General Assembly and legislature of a sympathetic state (Jefferson thought it should be North Carolina's, but influence of members of Nicholas family--which included prominent Kentucky and Virginia Republicans--in Kentucky meant that its legislature served purpose in end) adopt a statement of Republican constitutional principles. Americans at large would thus be offered an alternative political standard to which they could repair, and Federalist government would receive a tacit dare to initiate sedition prosecutions against an unsympathetic state legislature.(1) The Virginia and Kentucky Resolutions of 1798 should not be understood as invention of distraught minds faced with extraordinary circumstances. Although situation faced by Virginia Republican leaders at end of 1790s was urgent, twin enunciations of their constitutional position adopted by Virginia and Kentucky legislatures corresponded closely to explication of Constitution offered by Federalists in Richmond Ratification Convention of 1788. By time matters came to a head in 1798, Virginians had been insisting on holding Federalists to their vows of 1788 for a full decade. From almost minute they were promulgated, Virginia and Kentucky Resolutions of 1798 came to be seen as touchstone of Virginia's constitutionalism. When identities of their main authors, James Madison and Thomas Jefferson, became known more than a decade after fact, resolutions took on additional luster, and sectionalist and particularist southerners based their arguments on them up to 1861 and after.(2) The standard accounts of events of 1798 have Jefferson and Madison teaming to concoct a constitutional doctrine that might be useful in defense of civil liberties. According to these accounts, two eminent Virginians directed their salvo against what was seemingly an endless string of Federalist victories in federal politics--what Jefferson called the reign of witches--that finally drove many Republicans to desperation.(3) Examined solely from perspective of Virginia, however, that standard account is simply mistaken. …