Reading the Kentucky Resolution: Who Determines the Constitutionality of Laws?

0:03 Hello. Welcome back to Close Reads, a show where we take a deep dive into primary sources from American history. I’m Kirk Kiggins, and today we’re going to be taking a look at two interesting documents the Virginia and Kentucky resolutions from 1798. So we’re going to be looking at these two documents, the Kentucky and Virginia resolutions from 1798. But while we’re looking at them, I want to focus on this big question because I think it’s at the heart

0:26 of the debate and why these two pieces of legislation were passed, and that is who determines the constitutionality of laws? So let’s dive into a little bit of historical context. We can see why we’re getting at that question. So, starting, we’ll go way back to 1796, and there’s a presidential election that year, and it’s in fact, the first contested presidential election.

0:47 And by that I mean it’s the first time that George Washington is not just already assumed to be the next President of the United States. He has decided he is going to retire. He steps away from the presidency. And so we have an election between two different individuals, or at least two prominent individuals are at the front of each ballot, and that is Thomas Jefferson and John Adams.

1:09 This election is very contentious, and in the end, it turns out that John Adams wins the most electoral votes. He becomes president. Thomas Jefferson, his opponent, becomes vice president. So why is that important? Well, these two men have different ideas when it comes to how the government ought to operate, different priorities for what they think the government ought to be focusing on.

1:29 And this leads to a lot of tension within the administration. Fast forward a couple of years. We now find ourselves in what’s called the Quasi War with France. It’s Quasi War because it’s not really happening. It hasn’t been declared. But there are tensions where the French are seizing American shipping and causing disruptions, but there’s not actually outright warfare taking place.

1:50 It hasn’t been declared by Congress. But within this framework, Congress, the federal Congress passes. We’re called collectively the Alien and Sedition Acts. And these acts do things like limit strictly the freedom of speech. They say things like you can’t criticize with the government’s operating. They also extended the time that it would take to become a citizen.

2:10 And both of these things were strongly objected to by Jefferson, who, again, is the Vice President. So John Adams signs and authorizes these to move forward. Thomas Jefferson is there, and he’s very upset about this. Why does that matter? Well, once those laws are passed, the states of Kentucky and Virginia in 1798 both pass resolutions, and those are what we’re going to talk about today.

2:32 These resolutions essentially state that they object to this law, and they see it as being unconstitutional. And outside of the purview of what the federal government ought to be doing, they do so in slightly different ways. And that’s where it gets interesting. So today we’re going to look specifically at the Kentucky resolution. The first one was passed in 1798, and it has been determined that it was

2:53 actually Thomas Jefferson who supplied the first version of that draft. It was subsequently kind of tweaked by James Breckenridge, but it was ultimately written by and the ideas that were in it were Jefferson. Now, it’s important to keep in mind with James Breckenridge there and with Congress passing it, this isn’t about Jefferson himself, but it is about this conception, this idea of how these different individuals who all agreed to pass this

3:16 resolution were thinking about the way that the Constitution operated. So that’s what we’re going to look closely at today. In our next video, we’re going to take a look at the Virginia Resolution, which was also opposed past in opposition to the Alien and Sedition Act, and that was authored by James Madison. But we’ll save that for next time. Now, before we dive into the document, if you want to learn more about the Quasi War with France, take a look at this narrative essay.

3:38 They’ll tell you all about the Quasi War and also something called the XYZ Affair that facilitates some of the tensions with France. And if you want to learn more about what was in the Alien Sedition Act and why they were so controversial, take a look at this resource. It’ll be another essay that will take you through what was in the Alien Sedition Acts and how they were debated, discussed, and talked about during the period. Now let’s take a look at the Kentucky resolution.

3:59 All right. So the Kentucky resolution, it was passed by the General Assembly of the Commonwealth of Kentucky on November 10, 1798. And it opens with this first section. And it’s really important because this first section really summarizes the argument that’s contained within this that gets at this big question that we’re asking, which is, how do you determine the constitutionality of the laws? Now, it’s important to keep in mind this

4:19 is early in the Republic’s history, so we’re still grappling with what does it mean to operate as a constitutional republic? There’s lots of questions around this during this period. You’re seeing a lot of the growth of political parties. You’re seeing a lot of the growth of tensions. We just talked about the election of 1796. And so this question of how you determine constitutionality is really important.

4:40 And as American history goes along, this question comes up again and again and again. What happens when you, as a state or you as an individual disagree with whatever has been passed by Congress? What do you do? Do you just go along with it? What do you think? It’s so fundamentally problematic that it’s going against the Constitution? Well, obviously, in our system, we tend to look to the Supreme Court now

5:03 to determine the constitutionality of laws from a legal perspective. But that hasn’t always been solidly the case. There’s been questions that have been raised in different parts as to whether or not different individuals in different departments of the government can also declare something unconstitutional. So for example, a member of Congress who sees something get passed to what extent can they declare that something is unconstitutional?

5:25 Do they have an obligation to do so? What can they do? And sort of the conclusion that’s been come to is that within their sphere or some argue that within their sphere they can do what they can to sort of undermine that unconstitutional thing. It’s the same thing that Jefferson is getting at in this draft. Or I should say that the Commonwealth of Kentucky is arguing in passing this resolution.

5:46 It’s the idea that if Kentucky disagrees with what this document is doing, what recourse do they have to call this thing, this law, unconstitutional? So here’s their argument. What they say is that the several states compose the United States are not united on the principle of unlimited submission to the general government, but that by compact under the style

6:09 and title of a Constitution for the United States. So what are we saying? So by compact is really important because what they’re saying what is being argued here is that the states are not really unified under the Union in the sense that they lose all of their authority of being independent states. They are in fact still independent and have agreed to participate in this national government.

6:34 It goes on to say that the Constitution and the general government for special purposes delegated to that government in certain definite powers, reserving each state to itself the residuary mass of right to their own self government. So again, what is being argued here is that instead of looking at the Union as a sort of a single entity under

6:56 which there’s administrative divisions of states, what they’re proposing by saying again this idea of compact is that the states themselves retain certain powers and that part of that is going to play out here in a second. We’ll look at the next session. All right. So they’re arguing that it’s a compact of states, not just this one single solidified Union.

7:19 And they go on to say, and this is still in section one whatsoever the general government assumes undelegated powers, its acts are unauthoritative void and of no force. So this void and of no force is really important that to this compact each state is seated as a state and as an integral party.

7:39 That this government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself since that would have made its discretion and not the Constitution the measure of its powers. All right, so that’s complicated. What are we saying? What they’re arguing is the idea that the states reserve some power to determine whether or not what has been passed by the federal government is within

8:02 the scope of what the federal government is allowed to pass. So that means the Constitution, as you all know, is a list of delegated powers. If you want to learn more about the Constitution, I do do another video where I explain the Constitution really briefly, just like I’m doing today. So take a look at that if you have any questions. But the idea is that there’s these individually delegated powers to the Constitution.

8:24 So the natural government only has those powers and no others. And if the Constitution violates those powers, who is to determine whether or not they have done so? Is it just the Constitution. Is the federal government itself that’s supposed to be bound by that. You can see how that can be a challenge. So what they’re arguing here is that no, the states have an obligation to call out when that has been violated and then act in accordance with that.

8:50 So they conclude here by saying exactly that. But that is, as in all other cases of compact among powers have no common judge each party. Each party, meaning the states, has an equal right to judge for itself as well as of infractions, as modes of measures of redress. So they can judge whether or not it’s constitutional and then they can determine what mode and measure.

9:13 So in other words, they can determine what to do about the fact that this unconstitutional thing has happened. Now I say all this and you might start thinking, wow, they’re really talking about something called states rights here. And that’s what they are doing. And this is really challenging to the system and understanding of the national government. This becomes a much bigger deal as you move forward into the 1800s.

9:36 As you start thinking about conversations around sucession and the Civil War. This is the framework around which some of those arguments begin to be based. And that’s a challenge because we’ll talk in the Virginia Resolutions. Madison was one of the primary authors of the Constitution and here it seems they’re trying to find a complicated way to say well, we do have the stronger national government but it’s not so national so to lose these states.

9:59 So I see all these arguments only because that’s how they are being articulated. But there’s a lot of questions and challenges around this construction because ultimately it does call into question whether or not you can have this solid national government. How does the national government, in other words, compel states who disagree with its legislation to follow along with what has been passed? That’s a big tension that plays out throughout American history and we’ll

10:20 probably talk more about that in other videos. But for now, just understanding this argument that’s what’s being put forward is really important. So now they’ve laid out their argument in section one. Let’s take a look at how they deploy in section Two. So to summarize, in that first section they argued that the Union is a compact of States, meaning those states are still retaining their own individual rights

10:43 and authority to challenge national government. And that when they are acting in that capacity of judge, they can determine whether or not these different laws are constitutional or if they are null and void. So now they take and deploy that argument. So they say these are all the things the Constitution specifically says it can do. And then it notes that there’s an amendment that says the power is not

11:04 delegated to the United States by the Constitution or prohibited by it. The States are reserved to the States respectively or to the people. So it’s saying the Constitution doesn’t say that they can punish anything other than specific things. Everything else should be reserved to the States. And therefore this act that was passed on the 14th day of July in 1798, that has these titles punishment of Certain Crimes against

11:29 the United States and this other act by the bank are unconstitutional. So they’re saying hey, we’re Compact of States because with this compact we need to be able to judge whether or not the national government is acting within its confines of the Constitution. Here we’ve determined that it is not. And so now how are we going to address this? And they essentially say that because this

11:50 is a fact, that these laws in the State of Kentucky are altogether void and of no force because the power to create, defined and punish such crimes is reserved and of right appertains solely and exclusively to the respective States within its own territory. So it’s saying you don’t have the authority to do this.

12:10 We’re saying that this law is null and void, meaning or altogether void and have no force, meaning that the law does not apply within the Commonwealth of Kentucky based off this resolution. So that’s what they are arguing. So that’s interesting. Again coming together calling the question the sort of nature of union and how it is that we determine the constitutionality and then what it means if they do find something unconstitutional.

12:34 So throughout the document in the next section, two we saw but 3456 and seven, they go through different arguments again for where the government, they think the national government has exceeded its powers and gone beyond what it sees as its constitutional limits. It then concludes in this ninth section and it really lays out here now what they’re going to do.

12:54 So they’re claiming that it’s null and void. But what does that really mean? What does it actually mean that this law or not null and void excuse me, but void and of no force. But what is that really going to mean? Well, they kind of conclude it here and they make another sort of proclamation about what it means to have this compact of State. Questions of power then let no more be said of the confidence of men,

13:15 but bind him down from mischief by the chains of the Constitution. It’s pretty powerful. So in other words, the laws that are written in the Constitution should bind down this excess that this Commonwealth, meaning Kentucky does therefore calling its coast states for an expression of their sentiments of the acts concerning aliens and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are

13:38 or are not authorized by the federal government. So they’re calling on other states to say whether or not these Alien and Sedition Acts are valid, or whether or not they also think that they are unconstitutional. And they argue pretty strongly here that they’ll see the same way as we do. So anyone can look at this and say that they’re going to see it that way. Then it goes on to say that.

14:00 And this is where again, it gets interesting, that they’re not from our authority and that the co-states recurring to their natural rights and not made federal. So again, states exist apart from the federal government will conclude in declaring these void and of no force, that word, that verbiage again, and that they will unite with this Commonwealth in requesting their repeal at the next session of Congress.

14:22 So what do we do? We’re saying they’re void, they have no force here. What are we going to do? We’re going to go back to the national government and we’re going to make sure that they get repealed in the next session of Congress. So it’s interesting here, we’re going back to the national government, we’re saying that Congress needs to pass another law that gets rid of this law. Now. What’s interesting.

14:44 So that’s going through a constitutional system. Still recognizing the authority Constitution here. We’re not seeing that the states are going to leave or any kinds of conversation around secession. But if we’re going to go back to the proper channels and pass the repeal of it in the next session. Calling on other states to help get that appeal pass through. Keeping in mind it’s important that the Senate during this period is elected by state legislatures.

15:06 So is theoretically supposed to represent the interests of these states. So what happens next? So they did send us out to the states and despite what they claim here to be very strong arguments that no one can disagree with, most of the other states either were silent and didn’t respond to this resolution or outright rejected it and said, hey, we don’t want anything to do with this or we’re critical of it.

15:28 Meaning they didn’t think that this argument held water. They think that this argument is not going to be beneficial for the overall constitutional structure or they disagreed with their views on the Alien and Sedition acts themselves and saw them as being important for the nation to pass and have in place. So all that to say, this is a rich dialogue that’s taking place.

15:48 Sometimes when we look at these historical documents, we see them as being totally authoritative and the only views are being expressed at that time and they certainly were not. So immediately after this we get this resolution of 1799, which is interesting in that resolution adds this word nullification into the mix. Now, nullification becomes important

16:08 because to nullify law means that you don’t go through this proper constitutional process of saying well, Congress needs to repeal it. But instead it’s an argument that says the state itself can declare that a law is not void for the entire nation. So that states can get together and make an argument that what needs if this law is just not on the books.

16:29 So unconstitutional needs to be gotten rid of kind of along the lines of the way that the Supreme Court operates a little bit differently than that. But nevertheless the point of that nullification idea would be that the law is not valid any longer and is not enforced for anyone. So it’s interesting so that’s the Kentucky resolution talk about a compact of states.

16:50 The states have the authority to judge whether or not laws are constitutional. Getting back to our big question again of how do you determine this constitutionality? They saw that the Alien and Sedition Acts were unconstitutional and so they said that they would be void and of no force in the states that were on board with this resolution.

17:11 So in Kentucky specifically, and then they called for the next session of Congress to repeal these acts and get rid of them. So next time we’ll take up the Virginia resolutions that James Madison was a part of and we’ll take a look at what those had to say about these similar questions and how they approach this from a slightly different angle. So until the next video, I hope you’ll stay in touch. Please reach out to us on Facebook, Instagram, Twitter We’re always happy

17:35 to hear your ideas and any questions that you have, we’re always happy to answer them, but I hope this video is useful. And next time we’ll talk about the Virginia resolution. Thank you so much.