For God, Family and Republic

Well, I am revisiting an old topic which I wrote about in July. But December 24th, marks 207th anniversary of the Virginia Resolves against the Alien and Sedition Acts. This is a part of the vibrant states' rights tradition, and asserts the right of the delegating authority to judge infractions of the central authority in a federal polity. In age of constitutional usurpation of the Tenth Amendment and the Bill of Rights by such nebulous instruments as the Patriot, the reassertion of the doctrine of interposition is vitally requisite. It is only way of restoring the constitutional republic of our forefathers. "Free government is founded in jealousy," avowed Thomas Jefferson, "and not in confidence. It is jealousy and not confidence which prescribes limited constitutions, to bind down those whom we are obliged to trust with power..."

As a sidenote, this past December, Palgrave MacMillan's publicist sent me a review copy of William Watkins, Jr. 2004 book Reclaiming the American Revolution, which I highly recommend. I will be reviewing it in the future.

The Kentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were an exercise of state interposition in protesting unconstitutional acts of Congress. “The Resolutions articulate the basics of our government in an eloquent, yet logical, manner; they are second only to the Constitution in their import and merit inclusion in the Pantheon of American charters.” The resolves were written by Thomas Jefferson and James Madison respectively, though their authorship was not publicized until years later. In passing the Alien and Sedition Acts, the Congress had eggregiously infringed upon the powers of the States and the rights of the People who were the sovereigns. The resolves protested these unconstitutional usurpations, and asserted the right of the States to interpose their authority as the guardians of their reserved rights.

The Sedition Act ostensibly outlawed seditious criticism of the federal government, which came amidst immense tensions with revolutionary France. The actions of person(s) with “intent to oppose any measure or measures of the government of the United States” were thus criminalized. Nevertheless, the First Amendment prohibited the Congress from abridging the freedom of press. The Sedition Act essentially represented the heavy hand of Congress in supressing the Republican-dominanted press from criticism of Federalist officials in office. The Sedition Act also provided jail and penalties for anyone that

shall write, print, utter or publish ... false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress... or the President... with intent to defame... or to bring them... into contempt or disrepute; or to excite against them... the hatred of the good people of the United States....

One of the men indicted was Benjamin Franklin’s grandson, the melodramatic and lurid editor of the Philadelphia Aurora who was charged with seditious libel against President Adams. While some Republicans contended for an absolute freedom of press, others were adamant that any laws against libel and sedition, and the enforcement of such laws, were entirely the perogative of the states.

The Alien Act authorized the capture, detention and deportation of resident aliens—deemed enemies by the President. Jefferson believed the Alien Act was targeted at Albert Gallatin (who later become his Secetary of Treasury.) Gallatin was a Republican partisan in Pennsylvania and a recent émigré of Geneva. It allowed for no hearing or due process for resident aliens to contest their arrest. It was seen as an eggregious violation of the Bill of Rights and civil liberties, and purely politically-motivated as aliens were often Democrat-Republicans. The Alien Act was deemed an usurpation of state powers and the rights of resident aliens.

The Congress possessed no general legislative power, and was confined to the exercise of enumerated objects of power under the Constitution. The Republicans contended that it lacked authority to enact the Alien and Sedition Acts, which alarmed Jefferson, Madison and many Republicans. In his draft resolutions, after asserting that the Constitution was a compact, Jefferson declared that the national authority was confined to “certain definite powers,” thus concuring with Madison in Federalist #14, who declared, “it is to be remembered that the general government is not to be charged with the whole power of making and administering laws. Its jurisdiction is limited to certain enumerated objects, which concern all the members of the republic, but which are not to be attained by the separate provisions of any.” In Federalist #45, Madison furthur surmised that the federal government's “jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects.” Both Acts were viewed by Madison and Jefferson, and others, as a palpable usurpation of the powers of the several States and the rights of the citizens thereof.

There is ample evidence of the the legitimacy of the States guarding their reserved rights, on the basis of the debates in the State ratifying conventions. Likewise, Publius’ special pleading for adoption of the Constitution in the Federalist concedes interposition as well. In Federalist #28, Alexander Hamilton affirmed this “axiom” of the power of States to guard their reserved powers, and the liberties of their people, in declaring:

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.

In Federalist #33, Hamilton advised that acts of the general government “which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will [not] become the supreme law of the Land.” Jefferson agreed. The Kentucky Resolutions declared that the Alien and Sedition Acts were “…altogether void, and of no force…”

Constitutional scholar William J. Watkins, in Reclaiming the American Revolution: The Virginia and Kentucky Resolutions and Their Legacy observes:

At the core, the Resolutions are intrepid statements in favor of self-government and limited central authority. A product of political and constitutional battlegrounds of the 1790s, the Resolutions serve to link the federal union created by the Constitution with aspirations of the patriots of the American Revolution. Indeed, the tocuh of the author of the Declaration of Independence is unmistakable when one reads the Kentucky Resolutions of 1798.

The Resolves were not wholesale innovations of Jefferson and Madison, but stood in a broader colonial and revolutionary tradition of interposition. Prior to independence from Great Britain, John Adams had penned a resolution against the Stamp Act passed by the British Parliament. Similarly, some colonial magistrates interposed their authority against the Crown and Parliament on behalf of subjects in the face of usurpations against the Anglo-American constitution.

The resolves marked the first stage of interposition which was simply protest. “The Kentucky and Virginia Resolutions of 1798 were not pronouncements of sovereign power,” observes John Remington Graham, “but the warnings of legislative bodies that, unless the situation were corrected, it might be necessary to summon sovereign to deal with the constitutional crisis within the Union.” The resolves asserted the right of the States to interpose on behalf of its citizens, while judging and arresting infractions against the compact by its agent, the general government. The Virginia Resolutions proclaimed:

…[I]n case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, 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.

Committees of correspondance were setup to convey the resolves to the other States in the Union and to the federal authorities. It was thought by Madison that a constitutional convention would be convened if the abuses were not abated, and the concurring voice of the States would remedy the usurpation. In his private correspondance, he reminded Jefferson that the state legislature “is [not] the legitimate organ especially as a Convention was the organ by which the compact was made.” Madison tended to speak in generalities in the Virginia Resolutions in order to guard against “the charge of Usurpation in the very act of protesting agst the usurpations of Congress.” Madison's hope was amidst continual state protest, if the usurpations were not arrested by the central authority than a call for a constitutional convention would be summoned.

On November 22, 1799, the Kentucky legislature passed a second set of resolutions which concluded that the States “being sovereign and independent, have an unquestionable right to judge” infractions of the Constitution, and that “a nullification by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy.”

The resolves were the definitive statement affirming the compact nature of the Union. In the years ahead, the so called Principles of 1798 embodied in the resolves gave states’ rights republicans a point-of-reference in the pitched battles with the consolidation camp. Senators Robert Hayne and John Calhoun would invoke the Resolves in their debates on the nature of the Union around the time of the nullification crisis emanating from the Tariff of Abominations.