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

by Caleb William Loring

The Sedition act was also claimed to be beyond the power of Congress for many reasons, and emphatically because it punished by fine and imprisonment false, scandalous, and malicious writings against the government; thus abridging the liberty of the press, the provision in the amendments of the constitution for which Virginia had been so strenuous.

In conclusion and in relation to these resolves the report says, nor can declarations either denying or affirming the constitutionality of measures of the government be deemed, in any point of view as assumption of the office of the judge. They “are expressions of opinion unaccompanied with any other effect than that they may produce an opinion by exciting reflection.” They “may lead to a change in the legislative expressions of the general will—possibly to a change in the opinion of the judiciary.”[77]

“And there can be no impropriety in communicating such a declaration to other States,” “and inviting their concurrence in a like declaration.” Then it speaks of the legitimate rights of States to originate amendments to the Constitution; that it was not improper or objectionable in Virginia to ask the States to take “the necessary and proper measures” to maintain the rights reserved to the States or people; and that if the other States had concurred, “it can be scarcely doubted these simple measures would have been as sufficient as they are unexceptionable.” This is a statement that the resolutions were a mere matter of opinion and that the laws complained of were unconstitutional, and if the other States had been of the same opinion, the States might have constitutionally remedied the evil.

Again is a repetition of the warm affection of the people of the State to the Union, and the explanation calls to remembrance the part the State had borne in the establishment of the “National Constitution,” and subsequently of maintaining its authority without a single exception of internal resistance or commotion, and a declaration that the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism, “that the resolutions themselves are the strongest evidence of attachment both to the Constitution and the Union.” “And as the result of the whole,” they adhere to their resolutions and “renew their protest against Alien and Sedition acts as palpable and alarming infractions of the Constitution.” Madison in a letter to Edward Everett informs us the words, “not law but utterly null, void, and of no force or effect,” which followed the word “unconstitutional” in the resolutions as to the Alien and Sedition laws, were struck out by consent, and also that, “the tenor of the debate discloses no reference whatever to a constitutional right in an individual State to arrest by force the operation of a law of the United States.”[78]

These resolutions and the explanation—Virginians always put them together—were nominally the political creed of the republican party that so long ruled the United States. They were a denunciation—perhaps a partisan one—of alleged unconstitutional laws made by the federal party in the administrations of Washington and Adams, and expressed a belief, which few to-day will say was warranted, that there was a design in them to transform the government into an absolute or at best a mixed monarchy.

The methods to arrest the evils of these alleged unconstitutional assumptions of undelegated powers were stated to be authorized by the Constitution itself. And by the concurrence with Virginia of the other States to whom the resolutions were submitted, they, the States, might remedy the alleged evils by their representatives in Congress or by the choice of Senators of different opinions; there were to be, the Virginia explanation said, no less than two Congresses before the laws expired by their limitation; or if necessary, the explanation further said, the States by a convention could alter the Constitution.

The resolutions are those of strict constructionists of the powers granted by the Constitution; they in no way assert the nullification doctrines of Kentucky, which some thirty years afterwards were revived and developed to their logical result of secession by Calhoun and South Carolina.

The prosecutions under the Sedition law, the arresting and carrying through the country and the fining and imprisoning as criminals, for the expression of opinions, of men whom the Republicans held as eminent and respectable, such as Thomas Cooper, Jefferson’s dear friend, had very great influence in the defeat of the federal party under the elder Adams and of the triumph of Jefferson and the Republicans.

The resolutions of Virginia alarmed Washington as exhibiting a discontent with the Union. He wrote to Patrick Henry, one of the Virginians Henry Adams names, to induce him to interpose his great influence in the matter.[79] Henry, whose impassioned eloquence had done so much to bring Virginia into the war of the revolution, who ably and persistently opposed in the Virginia convention the acceptance of the Constitution from fear that the great powers given to the United States would be fatal to liberty, had become one of its strongest supporters. He shared Washington’s anxiety. Though he had often been Governor of the State, and had declined offers of the most important national offices under Washington, he offered himself as a candidate for election to the House of Burgesses, to do what he could to put an end to this discontent and what he considered the rash measures of the State. In his speech before his constituents, he declared that Virginia had quitted the sphere in which she had been placed by the Constitution in daring to pronounce upon the validity of federal laws, and asked, “whether the county of Charlotte would have any authority to dispute an obedience to the laws of Virginia, and he pronounced Virginia to be to the Union what the county of Charlotte was to her.”[80] Nor did he believe that resistance would be peaceful; for he warned the people that the opposition of Virginia to the acts of the General Government must beget their enforcement, and that war would ensue with Washington and a veteran army as opponents. It was the period of our hostility with France, and Washington had been made commander-in-chief. Henry was chosen to the House of Burgesses by a large majority, but died before the session began in which Virginia’s conciliatory explanation of her resolves and her loyalty and attachment to the Union and the supremacy of those laws in all delegated powers was made.

The other two distinguished Virginians whom Mr. Adams mentions, are John Taylor of Caroline and John Randolph of Roanoke. Taylor, a great friend of Jefferson’s, in 1823 published a book called New Views of the Constitution of the United States. Of so little importance, so little known, were the Kentucky resolutions then that he does not cite them, as far as we can find from our examination, which we do not claim to be thorough. In the preface he speaks of his “survey as not devoid of novelty.” He controverts at great length the opinions of Hamilton and Madison, as given in the Federalist and a pamphlet published in South Carolina with similar views, called National and State Rights Considered by One of the People. His views of the Constitution are, as he says, new. He advances the doctrine that in a conflict between the laws and measures of the State and General Government neither shall prevail, but substantially the State should, unless three fourths of the States by an amendment of the Constitution should decide otherwise.