Nullification (U.S. Constitution) - The Kentucky and Virginia Resolutions

The Kentucky and Virginia Resolutions

The earliest assertion of the theories of nullification and interposition is found in the Kentucky and Virginia Resolutions of 1798, which were a protest against the Alien and Sedition Acts. In these resolutions, authors Thomas Jefferson and James Madison argued that "the states" have the right to interpret the Constitution and can declare federal laws unconstitutional when the federal government exceeds its delegated powers. These resolutions are considered the foundational documents of the theories of nullification and interposition.

The Kentucky Resolutions of 1798, written by Jefferson, asserted that the states formed the Constitution as a compact, delegating certain specified powers to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a "right to judge for itself" the extent of the federal government's powers. When the federal government acts beyond the scope of its delegated powers, a state may determine that the federal government's "acts are unauthoritative, void, and of no force." The Kentucky Resolutions of 1798 called on the other states to join Kentucky "in declaring these acts void and of no force" and "in requesting their repeal at the next session of Congress."

The Kentucky Resolutions of 1799 added the assertion that when a federal law is unconstitutional, the remedy is "nullification" of the law by "the several states." The Kentucky Resolutions of 1799 did not assert that Kentucky would unilaterally refuse to enforce, or prevent enforcement of, the Alien and Sedition Acts. Rather, these resolutions declared that Kentucky "will bow to the laws of the Union" but would continue "to oppose in a constitutional manner" the Alien and Sedition Acts. The resolutions stated that Kentucky was entering its "solemn protest" against those Acts. The author of the Kentucky Resolutions of 1799 is not known with certainty.

The Virginia Resolutions of 1798, written by Madison, did not mention nullification. Rather, they introduced the idea of "interposition." The Virginia Resolutions asserted that when the federal government engages in "a deliberate, palpable, and dangerous exercise" of powers not granted by the Constitution, "the states, who are parties thereto, have the right, and are in duty bound, to interpose, for arresting the progress of the evil, and for maintaining, within their respective limits, the authorities, rights and liberties, appertaining to them." The Virginia Resolutions did not explain what form this "interposition" might take. The Virginia Resolutions appealed to the other states for agreement and cooperation in opposing the Alien and Sedition Acts.

The Kentucky and Virginia Resolutions did not attempt to prohibit enforcement of the Alien and Sedition Acts within the borders of those states. Rather, these resolutions declared that the legislatures of these states viewed the Alien and Sedition Acts as unconstitutional, called for the repeal of these Acts, and requested the support and cooperation of the other states.

The Kentucky and Virginia Resolutions were not accepted by any of the other states. Rather, ten states rejected the Resolutions, with seven states formally transmitting their rejections to Kentucky and Virginia and three other states passing resolutions expressing disapproval. At least six states responded to the Resolutions by taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures. For example, Vermont's resolution stated: "That the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."

Virginia responded to the criticism of the other states by issuing the Report of 1800, written by Madison. The Report of 1800 affirmed and defended the Virginia Resolutions. The Report of 1800 also said that a declaration of unconstitutionality by the states would be only an expression of opinion designed to spur debate, rather than having the authoritative effect of a federal court decision. During the Nullification Crisis of the 1830s, Madison denounced as unconstitutional the concept of nullification of federal law by a state. Madison wrote, "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined."