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1798 - Nullification

The Alien and Sedition Acts met with resistance. Jefferson and Madison sponsored the passage of the Kentucky and Virginia Resolutions by the legislatures of these two states in November and December 1798. Extreme declaration of states’ rights, the resolutions asserted that states could “interpose” their views on federal actions and “nullify” them. The doctrine of nullification would be used later for the Southern states’ resistance to protective tariffs, and, more ominously, slavery.

Madison’s Virginia Resolutions began by declaring that the Federal Government held power only through a compact of the states. It also explained its objections to the Alien and Sedition as a limitation on free speech beyond the express powers of the Federal Government.

"... this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them."

Jefferson believed that the Judicial Branch was not empowered to judge the constitutionality of the actions of the Executive or Legislative Branches. A key passage in the Kentucky Resolutions (passed in two parts in 1798 and 1799) centered on his belief that only the states could judge an “infraction” of the Federal Government. Nothing could stop the Federal Government from despotism if it were the only check on itself. “Nullification,” for a state to declare a Federal law null and void, was the only “rightful remedy.”

"... the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy... "

The principle of Nullification would later be adopted by other states. In 1832, the South Carolina Ordinance of Nullification declared federal import duties null and void. The principle of Nullification was important in the secession of the South.