Nullification, Secession, Webster's Argument, and the Kentucky and Virginia Resolutions / Considered in Reference to the Constitution and Historically

by Caleb William Loring

“These resolutions were met by several of the State Legislatures to whom they had been communicated by counter resolutions protesting against them with much warmth, chiefly on the ground that the act of a State Legislature declaring a law of the United States unconstitutional was in itself an unconstitutional assumption of authority, and an unreasonable interference with the exclusive jurisdiction of the Supreme Court of the United States; accompanied in some instances, with severe denunciation against their disorganizing tendency.”

Some of the States argued the question of the constitutionality and expediency of the Alien and Sedition Laws, and one State approved of the able advocacy and demonstration of their validity and expediency by the minority of the General Assembly of Virginia.

Of the States, whose resolutions are in Elliot’s Debates, two only, New York and New Hampshire, mention the name of Kentucky. Apparently the extreme viciousness of her doctrine escaped notice. In fact the nullification doctrine, the right of each State to resist the execution of United States laws, though asserted at the time by Kentucky, was unnoticed or forgotten until brought to life again by South Carolina thirty years afterwards. The right of secession was not suggested in the resolutions of either Virginia or Kentucky.

Nor did it appear that any one of the Senators or the Representatives of Kentucky ventured to lay before their respective Congressional Houses the nullifying resolutions of that State, notwithstanding the injunction contained in them to that effect.[75]

Kentucky’s Legislature answered the resolutions of the other States regretting the unfounded and uncandid suggestions in them derogatory to her, and then declared an attachment to the Union. The Legislature none the less resolved, that the several States that formed the Constitution were sovereign and independent, having the unquestionable right to judge of infractions, and that in such a case nullification was the rightful remedy. The ending is not however that they nullify, but “this Commonwealth does now enter against them” (the Alien and Sedition Laws) “its solemn PROTEST.”[76] The protest in capital letters: and that is all the State did.

We come again to the Virginia resolutions. When that State, in answer to her resolutions, received the indignant remonstrances of her sister States, she felt obliged to defend her position. That defence was made at great length in her General Assembly held the next year, 1799, by Madison, the author of the resolutions and the chairman of the committee to whom the communications of the other States had been referred. The report which was adopted by the assembly, coming from Madison, the principal constructor of the Constitution, should give no countenance to nullification and secession. Upon examination it will be found that there is none.

It begins with the very conciliatory and dignified statement that, though there might be painful remarks on the spirit and manner of the proceedings of the States who disapprove of the resolutions of Virginia, it is more consistent with the dignity and duty of the General Assembly to hasten an oblivion of every circumstance diminishing the mutual respect, confidence, and affection of the members of the Union.

The explanatory report takes up, first, the resolution to maintain and defend the Constitution of the United States and the warm attachment of Virginia to the Union, and justly says no one can object to this.

The report next notices the assertion that the powers of the Federal Government, as resulting from the compact to which the States are parties, are limited by the plain sense and intention of the instrument constituting that compact. This is merely, the powers of the United States come from and are limited by the Constitution.

The report goes on and says the compact is the Constitution, to which the States are parties. Then is defined what is meant by States. States sometimes mean territories occupied by the political societies within them, sometimes those societies organized into governments, and, “lastly it means the people composing those political societies in their highest sovereign capacity.” It says all will concur in the last-mentioned, “because in that sense the Constitution was submitted to the States, in that sense the States ratified it,” and in that sense they are parties to the compact from which the powers of the Federal Government result. Now, not forgetting it is the States, the people, that are parties, is not this a declaration, an explicit one, that the people of the several States made the Constitution, and not one independent sovereign State with other independent sovereign States?