The Kentucky and Virginia Resolves were issued in response to the Alien and Sedition Acts that, after continuous criticism by the Republicans during the Quasi-War with France, had been enacted by President John Adams and the Federalist majority in Congress. A fear that immigrants might spread the French Revolution to America inspired passage of the Alien Acts. The Sedition Act made criticism of government officials a crime. In the sedition trials, lawyers failed to persuade the Federalist federal judges, through judicial review, to strike down the Sedition Act as unconstitutional for violating the First Amendment. Federalists contended that the First Amendment was to be understood in a common law context wherein the right to freedom of the press would prevent prior constraint of publication by the government, such as censorship, but not subsequent constraint of publication, such as seditious libel. Furthermore, they defended the Sedition Act as an improvement on the common law by accepting truth as a defense, considering the defendant’s intent, and allowing juries to determine both law and fact.
Republicans, using state legislatures where they had strong majorities, passed the Virginia Resolves in 1798 written anonymously by James Madison and the Kentucky Resolves in 1798 and 1799 written anonymously by Thomas Jefferson. The Virginia legislature also followed with a report, mostly written by Madison, that explained the resolutions. The documents attested to a strong attachment to the Constitution and the union and asserted that states through conventions were parties of the compact that ratified the Constitution and that the people of the states granted specific enumerated powers to the federal government (U.S. Constitution, Article I, Section 8) and reserved other powers to the states (Tenth Amendment).
The compact theory was used later for South Carolina nullification and for secession. Although Jefferson used the words ‘‘void, and of no force’’ and ‘‘nullification’’ in his resolutions, asMadison explained, they were not calling for actual nullification. Indeed, the Virginia government allowed a federal sedition trial to take place in the state. Instead, they were asserting the doctrine of interposition, that states, being parties of the compact, had the right to give an opinion on the constitutionality of an act of the federal government. In this case, they declared unconstitutional the Alien Acts for violating separation of powers by mixing executive, judicial, and legislative functions, and the Sedition Act, for violating the First Amendment.
The Sedition Act, according to the Virginia Resolves, exercises ‘‘a power not delegated by the constitution, but on the contrary expressly and positively forbidden by [the First Amendment]. . .a power which more than any other ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.’’ In the Report, Madison added, the First Amendment should protect writers who intend to bring politicians into disrepute.
He wanted freedom of the press to be understood outside the context of the common law (which, being a law that covered the entire field of legislation, he considered to be unconstitutional at the federal level). By this interpretation, the First Amendment prohibited the federal government from engaging in either prior or subsequent constraint of publication.
Through the nineteenth century, the actions of Kentucky and Virginia took on mythical proportions as a grand states-rights stand for liberty against the abuse of power. At the time, however, given the popularity of the Federalists, the Kentucky and Virginia Resolves did not receive a consensus of support in America. Indeed, even in the Virginia legislature, a minority report written by John Marshall defended the Sedition Act as constitutional. Also, the Resolves did not initiate a movement to end seditious libel. This was not a story of Republican ‘‘good guys’’ versus Federalist ‘‘bad guys.’’ Although the Sedition Act was not renewed after the election of 1800, Republicans in power prosecuted Federalist editors for seditious libel at the state level and in a federal case that led to United States v. Hudson and Goodwin.
The Kentucky and Virginia Resolves are significant, first, for the defense of federalism and an important role for the states. Second, in the twentieth century, the Supreme Court moved beyond the common law meaning of freedom of the press and accepted Madison’s interpretation that the First Amendment applied to both prior and subsequent constraint of publication. This has become the Resolves’ main contribution to civil liberties.
F. THORNTON MILLER
References and Further Reading
Cases and Statutes Cited