Reading the Virginia Resolution: How Can States Determine the Constitutionality of Laws?

0:00 Hello, and welcome back to the Bill of Rights Institute’s. Close Reads. My name is Kirk Higgins, and this is a series where we take a look at important primary sources from throughout American history and see if we can unpack and find out some interesting things both about our country and about our collective past. Today is part two of a series where we’re looking at the Kentucky and Virginia resolutions. In our last video, we took a close look at the Kentucky

0:22 resolution of 1798, or I should say resolutions, as there is two. And today we’re going to take a look at the Virginia resolution of 1798. So let’s dive in and take a look. So in our last video, when we were talking about the Kentucky Resolution, we kind of had this big question of mine, which is, who determines the constitutionality of laws?

0:44 We talked about the Kentucky resolution and that it put forth this idea that states have a role in determining whether or not a law is constitutional. So let’s revisit that historical context really quickly. We’re talking about the 1790s. So this is 1798 specifically. This is in the context of the Alien and Sedition Acts. So these are acts that were passed during the Quasi War with France.

1:06 And remember, keep in mind, if you want to learn more about the Quasi War and what that meant and what was going on with that, take a look at this resource. And if you want to take a deeper look into the Alien and Sedition Acts themselves, you can check out this resource from the Institute. But without diving too much into them. There were major concerns with these pieces of legislation that were passed because many felt that it was limiting

1:29 speech rights and limiting the ability for individuals to criticize the government and that people were being punished because of that. So many people in the United States. Had concerns about these acts and thought it was an overstepping of the government’s authority. And although there are paths for national security concerns, they thought that this went way too far and were limiting free speech. So Kentucky and Virginia both passed resolutions that were calling for these

1:53 two pieces of legislation, the Alien Sedition Acts, or. More formally, the Alien Enemies Act of. 1798 and the Sedition Act of 1798, that they were unconstitutional, or in other words, that they violated the rule of law that the government was overstepping its bounds. In our last video, we took a look at the Kentucky resolution, and I encourage you to go take a look because it was pretty forceful and got close to this idea of nullification,

2:15 or I think the actual words that were used, if you remember, were of no force, or more specifically, were void and of no force. That was the words that were used. In the Kentucky resolution. Well, today we’re going to look at. The Virginia resolution of 1798. So Thomas Jefferson member originally offered the Kentucky resolution. The Virginia Resolution was actually drafted by James Madison.

2:37 Now, this is interesting for a couple of reasons. First, because James Madison was a primary contributor to the new Constitution. Remember, after the Articles Confederation was seen to be defunct in 1787, many Framers got together, they met in Philadelphia, created a new national government that was stronger than the Constitution out of the Articles, and was meant to sort

2:57 of expand the power of the national government. And here now you have James Madison being concerned that that national government is getting too strong. So let’s take a look and see what he had to say. So it’s important to keep in mind that even as I’m talking about James Madison, james Madison merely authored this. And when we look at these kinds of texts or these pieces of legislation,

3:18 that it is the legislature of Virginia that is speaking these words. So it’s not specifically James Madison, even though some of these ideas may be his. There are important things you can do. To sort of think about how James Madison may have been thinking about these things. But the bigger point that we want to investigate here is the underlying principle. What is being argued? How are individuals thinking about this?

3:38 What is it that the State of Virginia, as embodied by the legislature, is saying? And here we look at sort of the top line resolved that the General Assembly of Virginia unequivocally expressed a firm resolution to maintain and defend the Constitution of the United States in the Constitution of this State against every aggression either for an or domestic.

3:58 So they’re saying we have an obligation as the State of Virginia to make sure that the Constitution is being upheld. So already in this first paragraph you’re saying that they’re calling themselves an obligation to defend the Constitution of the United States. So this document that’s setting up this national government, the State of Virginia sees itself in a position where it needs to maintain and defend that document.

4:20 It then goes on to say that this assembly most solemnly declares a warm attachment to the Union of the States. So here it’s separating, looking at the Constitution, United States, something needs to defend in this idea. The union needs to defend which pledges its powers. It is their duty to watch over and oppose every infraction of the principles which constitute the only basis of that Union because a faithful observance of them alone can secure its public happiness.

4:43 So again, already Virginia is looking at the Alien and Sedition Acts and in making their statement about those acts, it’s saying we have an obligation to defend the Constitution and we have an obligation to this Union of States. That they see this Union as being something that’s important that they want to maintain. So after setting up their purposes for doing this, they’re now going to go right into their argument for what they’re thinking about these aliens addition acts.

5:07 It says that this assembly is explicitly and preemptorily. So it’s saying specifically what it wants to do and doing it quickly, that it views the powers of the federal government as resulting from the compact. That word is going to be important. The compact to which the states are parties is limited by the plain sense

5:28 and intention of the instrument constituting that compact has no further valid than they are authorized by the grants enumerated in the compact. So what are they saying here? We’re compact a whole bunch of times. I think I counted three times. Essentially what is being argued in the Virginia Plan is that this idea that the states are a compact, meaning the states are individually

5:51 retaining their sovereignty as States even as they enter into this union of States. They’re not losing that prerogative. But it was the states themselves are the ones that were giving power to the national government for it to be established. Similar languages, including the Kentucky Resolution. But here it’s explicitly talking about what is often called compact theory.

6:12 And again, that’s the idea that these states are still entities that exist apart from the national government. And because they are these individual states, they need to be vigilant and maintain the Constitution so that the Union stays as they think that they authorized it to exist as. So they go on to say that explicitly. They say

6:34 that anything not granted by the said compact, the States who are parties there too have the right and the duty bound to interpose. So that would be the important to interpose for arresting the progress of the evil and for maintaining within their respective limits the authorities rights and liberties appertaining to them.

6:54 Again, lots of complex language. But essentially what’s being said here is the States are formed into a compact. That compact is bound together by the Constitution. And that is their duty as those individual states making up this union to interpose or intervene or get involved with or somehow stop, arrest anything that they see as overstepping

7:18 the bounds originally outlined in the Constitution. So why is that important when they go on to say that with deep regret that they see these instances manifested by the federal government to enlarge powers by forced construction of the Constitutional Charter which defines them. So they are saying the government is overstepping its bounds.

7:38 It had these very limited powers, they were expanded, but not this far. And it’s now destroying the meaning and the effect of particular enumeration which necessarily explains and limits the general phrases. All of this is essentially saying the government is overstepping its bounds of these Alien and Sedition Acts and we need to do something or else it’s going

7:58 to develop, it’s going to transform the present republican system in the United States into an absolute or at best a mixed monarchy. So if we don’t do something now, it’s going to get out of control. It needs to be stopped. And so we, the legislature in Virginia are setting out to do something. So they go on in the Virginia Resolutions talk more explicitly about the Alien and Sedition Acts. I’ve skipped over that because again, it’s just a lot of detailing out.

8:21 But part of what they argue here, and these are the second to last paragraphs here they say that one of the things that explicitly they have a problem with is that this state, having by its convention ratified the Federal Constitution, expressly declared, among other central rights, that the liberty of conscience in the press cannot be cancelled a bridge or restrained or modified by the United States.

8:42 Here. They’re talking about the First Amendment. They’re essentially saying, look, this act violates the First Amendment because it violates the First Amendment. This thing, this piece of legislation, these pieces of legislation are unconstitutional and it’s up to us to do something to stop it or at the very least call it out. And so again here we also should also make

9:05 note that this state, by its convention which ratified the Constitution, this is the essence of compact theory. What is being argued here is the idea that because states got together in conventions or to ratify the Constitution, that those states are the thing that holds sovereignty or power, that delegated power to the national government.

9:27 They go on to say, well, what are we going to do? They go on to say that it’s up to everybody to call this out and to declare that the aforesaid acts are unconstitutional. Now, it’s important to keep in mind, if you watch the video on the Kentucky Resolution, and I mentioned this earlier in the video, what is not here is the phrase of void or

9:47 of no force, which came up over and over again in the Kentucky Resolutions. And in fact, the second Kentucky resolution that was passed after the 1798 resolution in 1799 said use this word nullification. What is being argued for in the Virginia resolution is not nullification. Or at least that’s how Madison wanted. To think about it. But it was instead the states calling the federal government to account.

10:12 Now, this idea of compact theory would come up a lot. It’d be very important moving throughout American history, particularly into the Jacksonian period and then up until sectional crisis that took place before the Civil War. It’s this idea that states retain some kind of sovereignty of themselves, even though that was the case that got

10:34 overruled many times by different Supreme Court cases. So you have the famous cases of Martin v. Hunter’s Lessee, you have McCulloch v. Maryland In 1819 and later you have Texas v. White in 1869 after the Civil War. All of them kind of put down this idea of the federal compact, but instead say that it’s actually

10:54 the people, we the people of the United States, it is the people who are the ones that give authority. The federal Constitution. This idea of compact theory of states calling out laws is unconstitutional, is nonviolent itself, right? It’s not something that takes place, but instead that constitutionality is determined within the federal Constitution and the ideas around nullification

11:17 and around this compact area are challenged by the Supreme Court cases. But it gets us back to our main question again. This is the question that Jefferson, that Madison, that the members of the legislature in Kentucky and Virginia are really thinking about who determines the constitutionality of laws?

11:37 Should it be the states? Do they have a role in doing that? Madison argues it through compact theory. Jefferson argues it somewhat similarly, but talks about going further than just merely saying that there’s a need. I think what Madison would call it is interposition. It’s not just interposing and saying, hey, that like calling the government to account. But it’s actually saying jefferson’s

11:58 Kentucky Resolution is actually saying, no, this is nullified. It’s not in force here. Is that the appropriate measure for the Constitution? Or is it something closer to the constitutionality as we look at it now, which is usually determined to the Supreme Court? Or are there other ways that we ought to be thinking about it? Do legislators, members of the House of Representatives and the Senate, who also take a note to uphold and defend

12:20 the Constitution, do they have some kind of idea where they need to be the ones determining whether or not a law is constitutional? So we come back to our central question, which the Kentucky and Virginia resolutions both were trying to approach, which is who determines the constitutionality of laws? The Kentucky resolution said the states have a role in nullifying federal laws.

12:41 The Virginia resolution says they have a duty to sort of interpose or call the government into account, but they weren’t able to nullify those laws. The Supreme Court has led to say that both of those are bogus because it comes down to we the people being the ones that are the ultimate ones. We individual citizens, not the states. The Union is a solid thing. It’s not a compact of states,

13:02 but it is a singular body with differentiated levels of government. And so constitutionality has to be determined within that system, but it’s not determined by the states. But it’s a big question. It’s one that we should always keep thinking about and considering particularly because we all sort of have a duty to look at and think about these laws. Whether or not we have the ability to formally declare something unconstitutional, asking whether or not it

13:26 is at least allows us to keep in mind government accountability, that we’re holding those in power to those things which are limiting them and hopefully preserving our rights and liberties along the way. So thank you all for joining. I hope it was useful to kind of dive into these Kentucky and Virginia. Resolutions a little bit. If you want to see us cover. Other topics, please feel free to reach

13:46 out to us on Facebook or Twitter or Instagram. We’re available on all the social medias. We’d love to hear from you. We’d love to engage with you. If you have any questions, please send them along. And until next time, when we explore another primary source document. Thanks so much.