The Constitution for the United States, Its Sources and Its Application
Who is Running America?
CONCEIVED IN LIBERTY
THE KENTUCKY-VIRGINIA RESOLUTIONS
And Mr. Madison's Report of 1799
The Resolution Of The Kentucky Legislature on 19 November, 1798 declared:
"Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force; that to the contract (the Constitution) each State acceded as a State and is an integral party; that government created by this Contract 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 measures of its powers. But, that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well as of infraction as of the mode and measure of redress."
There are few documents of the early period of this Republic which possess a greater interest than the series of resolutions adopted in Virginia and Kentucky in 1798-99. They were the first official documents expressing the sentiment of the people regarding federal versus State jurisdiction. The resolutions of 1798, and the subsequent confirmation of their doctrines, survived many years and left no shadow of doubt upon them. The events leading to their penning hold as much interest.
IN the summer of 1798, a Federalist-dominated Congress of the United States passed three laws relating to aliens. These were harsh and tyrannical laws, politically motivated by a desire to control the flow of European immigrants who might be attracted to Jeffersonian standards. One of the statutes permitted the President, on his unchecked whim, to deport any alien he alone judged "dangerous to the peace or safety of the United States."
These were accompanied by an act still more oppressive, the Sedition Act of July 14, 1798. In the very teeth of the First Amendment's command that Congress pass no law abridging the freedom of the press, the Congress passed a law making it a criminal offense for any person to print "any false, scandalous and malicious writings against the government of the United States." The law prohibited any publication that might "excite the hatred of the good people of the United States" against Congress or the President. It was made unlawful for anyone even to urge opposition to any act of the President, or to urge the defeat of an act of Congress.
By contemporary standards, the Sedition Act especially must be viewed as an incredible offense against the Constitution. Yet Supreme Court justices of that day - Paterson, Chase and Bushrod Washington - repeatedly upheld the law, and saw that men were sentenced to prison for its violation. The light of individual freedom, raised at such sacrifice only a few years before, burned terribly dim. Neither the President, nor the Congress, nor the Supreme Court comprehended the evil here afoot.
In this crisis of constitutional government, Jefferson and Madison arranged for adoption of the famed Kentucky and Virginia Resolutions. Here, the General Assemblies of the two States enunciated in clear and vigorous language the right and duty of the States to intercede against a palpable and dangerous violation of the Constitution in order "to arrest the progress of the evil." The two resolutions were followed by Mr. Madison's Report of 1799, amplifying the position taken in Virginia a year earlier, and by a second resolution in Kentucky.
The student of constitutional government can find few starting points better suited for his inquiries than these profound statements on the meaning and structure of constitutional union.
The Virginia Commission on Constitutional Government, Richmond, Virginia, March, 1960
Within the national government itself, the principal struggle for power has always been between the executive and legislative departments.
The judiciary was hardly more than a spectator in this conflict. For the first 14 years of its existence, the Supreme Court failed to play the commanding role Hamilton had assigned it in The Federalist. There were no epoch-making decisions handed down from that tribunal; not a few Justices resigned in order to accept appointments in the state judiciaries; and on several occasions the office of Chief Justice went begging. In 1800, when John Jay declined reappointment as Chief Justice, he gave as his reason his conviction that "under a system so defective it would not obtain the energy, weight and dignity which was essential to its affording due support to the national government; nor acquire the public confidence and respect which, as the last resort, of the justice of the nation, it should possess."
In 1798 there was the feeling among the American people that their new government may somehow involve them in the war between Great Britain and France. Having just fought a long, bloody war for their own independence which left the country in debt, the people were not anxious to get involved in someone else's fight. Newspaper articles attesting to those views with criticism of the Federal government were rampant.
In retaliation, the new government passed Alien and Sedition laws restricting comments on the action of government. These laws greatly restricted the First Amendment rights secured to the people by the federal Constitution.
There was concern that this action was usurpation by the federal government of undelegated constitutional jurisdiction. In every State in the Union the government and its officials were protected by statute or common law against the practices which the Sedition Acts laid under duress. No Federalist was willing to admit that in this regard the states possessed larger powers than did the federal government.
By the end of 1978, some Virginians were speaking of the federal government "as an enemy infinitely more formidable and infinitely more to be guarded against than the French." Among these Virginians were Thomas Jefferson and James Madison. As early as 1797, Jefferson referred to the federal government as a "foreign jurisdiction."
As vice president of the United States, he urged the Virginia legislature to enact a law making liable to punishment citizens of Virginia who attempted to carry cases to the federal courts when those courts did not have clear and uncontested jurisdiction.
In Jefferson's opinion, the Alien and Sedition Acts made it imperative that the powers assumed by the federal government must be curbed if American liberty were to survive. Jefferson feared the theory of federal power upon which these acts were based as much as he did the operation of the acts themselves.
For, if it were conceded that the federal courts were authorized by the Constitution to take cognizance of all cases arising under the common law, there could be no doubt that the "beautiful equilibrium" established by the Constitution between the States and the federal government would be destroyed and that the federal government would be destroyed and that the federal government would usurp"all the powers of the State governments and reduce the country to a single consolidated government."
The common law, said Jefferson, could become law in the United States only by positive adoption only insofar as American legislatures were authorized to adopt it. Jefferson called in James Madison for consultation.
Madison characterized federal inherent or implied powers as "the creatures of ambition...Powers extracted from such sources will be indefinitely multiplied by the aid of armies and patronage which, with the impossibility of controlling them by any demarcation, would presently terminate reasoning, and ultimately swallow up the State sovereignties."
The fruit of Madison's and Jefferson's collaboration were the VIRGINIA and KENTUCKY RESOLUTIONS. Jefferson was the author of the Kentucky Resolutions and Madison drew up the statement adopted by the Virginia legislature, but neither man signed them.
These acts marked an important stage in the progress of the theory that ultimately led to the nullification by a State of a federal law. According to Jefferson's and Madison's interpretation of the Constitution, it created nothing more than a COMPACT between SOVEREIGN STATES which confided certain narrowly defined powers to the general government while RESERVING ALL RESIDUAL POWERS TO THE STATES, or TO THE PEOPLE.
The States, representing the People as the creators of the Constitution, alone were capable of judging when infractions of this instrument of government occurred, and they alone were able to devise measures of redress.
In effect, the States were called upon to mediate between the people and the federal government, but it was assumed that usurpation would always come from the federal government, rather than from the States.
Carried to its logical conclusion, the doctrine propounded by the Virginia and Kentucky Resolutions meant that the compact between the States was a moral rather than a legal obligation and that the preservation of the Union was left to the discretion of the parties concerned. The Kentucky Resolutions were passed in the legislature with a single dissenting vote.
Kentucky Legislature in the House of Representatives
November 10th, 1798I. Resolved, That the several States composing the United States of America are not united on the principle of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States, and of amendments thereto, they constituted a General Government for special purposes, -- delegated to that government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force: That to this compact each State acceded as a State, and is an integral party, its co-States forming, as to itself, the other party: That the 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; but that as in all other cases of compact among powers having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
ll. Resolved that the Constitution of the United States having delegated to Con,gress a power to punish treason, counterfeiting tie securities and current coin of the United States, piracies and felonies committed on the High Seas, and offenses against the laws of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments to the Constitution having also declared, "that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," therefore also the same act of Congress passed on the 14th day of July, 1798, and entitled "An act in addition to the act entitled an act for the punishment of certain crimes against the United States," as also the act passed by them on the 27th day of June, 1798, entitled "An act to punish frauds committed on the Bank of the United States" (and all other of their acts which assume to create, define, or punish crimes other than those enumerated in the Constitution) are altogether void and of no force, and that the power to create, define, and punish such other crimes is reserved, and of right appertains solely and exclusively to the respective States, each within its own Territory.
III. Resolved, That it is true as a general principle, and is also expressly declared by one of the amendments to the Constitution, that "the powers not delegated to the United States by the Constitution, nor prohibited to it by the States, are reserved to the States respectively, or to the people;" and that no power over the freedom of religion, freedom of speech, or freedom of the press being delegated to the United States by the Constitution, not prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the States or the people: That thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech and of the press may be abridged without lessening their useful freedom, and how far these abuses which cannot be separated from their use should be tolerated, rather than the use be destroyed; and thus also they guarded against all abridgment by the United States of the freedom of religious opinions and exercises, and retained to themselves the right of protecting the same, as this state, by a Law passed on the general demand of its Citizens, had already protected them from all human restraint or interference: And that in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech or of the press:" thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehood and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That, therefore, the act of Congress of the United States, passed on the 14th day July, 1798, entitled "An act in addition to the act for the punishment of certain crimes against the United States," which does abridge the freedom of the press, is not law, but is altogether void, and of no effect.
lV. Resolved, That alien friends are under the jurisdiction and protection of the laws of the State wherein they are: that no power over them has been delegated to the United States, nor prohibited to the individual States, distinct from their power over citizens. And it being true as a general principle, and one of the amendments to the Constitution having also declared, that "the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people," the act of Congress of the United States, passed on the 22 day of July, 1798, entitled "An act concerning aliens," which assumes powers over alien friends, not delegated by the Constitution, is not law, but is altogether void, and of no force.
V. Resolved, That in addition to the general principle, as well as the express declaration, that powers not delegated are reserved, another and more special provision, inserted in the Constitution from abundant caution has declared that, "the migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808." That this commonwealth does admit the migration of alien friends, described as the subject of the said act concerning aliens; that a provision against prohibiting their migration, is a provision against all acts equivalent thereto, or it would be nugatory; that to remove them when migrated is equivalent to a prohibition of their migration, and is, therefore, contrary to the said provision of the Constitution, and void.
Vl. Resolved, That the imprisonment of a person under the protection of the Laws of this Commonwealth on his failure to obey the simple order of the President to depart out of the United States, as is undertaken by said act entitled "An act concerning Aliens," is contrary to the Constitution, one amendment to which has provided, that "no person shall be deprived of liberty without due process of law;" and that another having provided "that in all criminal prosecutions the accused shall enjoy the right to public trial by an impartial jury, to be informed of the nature and cause of the accusation, to be confronted with the witnesses against him, to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defence," the same act, undertaking to authorize the President to remove a person out of the United States, who is under the protection of the Law, on his own suspicion, without accusation, without jury, without public trial, without confrontation of the witnesses against him, without hearing witnesses in his favor, without defence, without counsel, is contrary to the provision also of the Constitution, is therefore not law, but utterly void, and of no force.
That transferring the power of judging any person, who is under the protection of the laws, from the Courts to the President of the United States, as is undertaken by the same act concerning aliens, is against the article of the Constitution which provides that "the judicial power of the United States shall be vested in Courts, the Judges of which shall hold their offices during good behavior;" and that the said act is void for that reason also; and it is further to be noted, that this transfer of Judiciary power is to that magistrate of the General Government who already possesses all the Executive, and a negative in all the Legislative powers.
Vll. Resolved, that the construction applied by the General Government (as is evinced by sundry of their proceedings) to those parts of the Constitution of the United States which delegate to Congress a power "to lay and collect taxes, duties, imports, and excises, to pay the debts, and provide for the common defence, and general welfare of the United States, and to make all laws which shall be necessary and proper for carrying into execution the powers vested by the Constitution in the Government of the United States, or any department or officer thereof," goes to the destruction of all limits prescribed to their power by the Constitution--That words meant by the instrument to be subsidiary only to the execution of the limited powers, ought not to be so construed as themselves to give unlimited powers, nor a part so to be taken as to destroy the whole residue of the instrument: That the proceeds of the General Government under colour of these articles, will be a fit and necessary subject of revisal and correction at a time of greater tranquillity, while those specified in the preceding resolutions call for immediate redress.
VIll. Resolved, that the preceding Resolutions be transmitted to the Senators and Representatives in Congress from this Commonwealth, who are hereby enjoined to present the same to their respective Houses, and to use their best endeavour to procure at the next session of Congress, a repeal of the aforesaid unconstitutional and obnoxious acts.
lX. Resolved lastly, That the Governor of this Commonwealth be, and is hereby authorised and requested to communicate the preceding Resolutions to the Legislatures of the several States, to assure them that this Commonwealth considers Union for specified National purposes, and particularly for those specified in their late Federal Compact, to be friendly to the peace , happiness and prosperity of all the States;: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government, and transfer them to a general and consolidated Government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States; And that therefore this commonwealth is determined, as it doubts not its co-States are, tamely to submit to undelegated and consequently unlimited powers in no man, or body of men on earth: that if the acts before specified should stand, these conclusions would flow from them; that the General Government may place any act they think proper on the list of crimes & punish it themselves, whether enumerated or not enumerated by the Constitution as cognizable by them; that they may transfer its cognizance to the President or any other person, who may himself be the accuser, counsel, judge, and jury, whose suspicions may be the evidence, his order the sentence, his officer the executioner, and his breast the sole record of the transaction: that a very numerous and valuable description of the inhabitants of these States being, by this precedent, reduced, as outlaws, to the absolute dominion of one man, and the barrier of the Constitution thus swept away from us all, no rampart now remains against the passions and the powers of a majority in Congress, to protect from a like exportation, or other more grievous punishment, the minority of the same body, the Legislatures, Judges, Governors, and counselors of the States, nor their other peaceable inhabitants, who may venture to reclaim the constitutional rights and liberties of the States & people, or who for other causes, good or bad, may be obnoxious to the views or marked by the suspicions of the President, or be thought dangerous to his or their elections or other interests public or personal: that the friendless alien has indeed been selected as the safest subject of a first experiment: but the citizen will soon follow, or rather has already followed; for already has a Sedition Act marked him as its prey: that these and successive acts of the same character, unless arrested at the threshold, may tend to drive these States into revolution and blood, and will furnish new calumnies against Republican Governments, and new pretexts for those who wish it to be believed, that man cannot be governed but by a rod of iron: that it would be a dangerous delusion were a confidence in the men of our choice to silence our fears for the safety of our rights: that confidence is every where the parent of despotism: free government is founded in jealousy, and not in confidence; it is jealousy and not confidence which prescribes limited Constitutions to bind down those whom we are obliged to trust with power: that our Constitution has accordingly fixed the limits to which and no further our confidence may go; and let the honest advocate of confidence read the Alien and Sedition acts, and say if the Constitution has not been wise in fixing limits to the Government it created, and whether we should be wise in destroying those limits? Let him say what the government is if it be not a tyranny, which the men of our choice have conferred on our President, and the President of our choice has assented to, and accepted over the friendly strangers, to whom the mild spirit of our Country and its laws have pledged hospitality and protection: that the men of our choice have more respected the bare suspicions of the President than the solid rights of innocence, the claims of justification, the sacred force of truth, and the forms & substance of law and justice. In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution. That this commonwealth does therefore call on its co-States for an expression of their sentiments on the acts concerning Aliens, and for the punishment of certain crimes herein before specified, plainly declaring whether these acts are or are not authorized by the Federal Compact? And it doubts not that their sense will be so announced as to prove their attachment unaltered to limited Government, whether general or particular, and that the rights and liberties of their co-States will be exposed to no dangers by remaining embarked in a common bottom with their own: That they will concur with this Commonwealth in considering the said acts as so palpably against the Constitution as to amount to an undisguised declaration, that that Compact is not meant to be the measure of the powers of the General Government, but that it will proceed in the exercise over these States, of all powers whatsoever: That they will view this as seizing the rights of the States, and consolidating them in the hands of the General Government, with a power assumed to bind the States, (not merely in the cases made federal) but in all cases whatsoever, by laws made, not with their consent, but by others against their consent: That this would be to surrender the form of Government we have chosen, and live under one deriving its powers from its own will, and not from our authority; and that the co-States, recurring to their natural right in cases not made federal, will concur in declaring these acts void, and of no force, and will each unite with this Commonwealth in requesting their repeal at the next session of Congress.
Edmund Bullock, S.H.R.
John Campbell, S.S.P.T.
Passed the House of Representatives, Nov. 10th, 1798
Thomas Todd, C.H.R.
In SENATE, November 13th, 1798, unanimously concurred in,
B. Thruston, Clk. Sen.
Approved November 16th, 1798,
James Garrard, G.K.
By The Governor,
Secretary of State
THE GENERAL ASSEMBLY OF VIRGINIA
in the House of Delegates
Friday, December 21, 1798RESOLVED, That the General Assembly of Virginia, doth unequivocally express a firm resolution to maintain and defend the Constitution of the United States, and the Constitution of this State, against every aggression either foreign or domestic, and that they will support the government of the United States in all measures warranted by the former.p> Agreed to by the Senate, December 24, 1798.
That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure it's existence and the public happiness.
That 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.
That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been manifested by the federal government, to enlarge its powers by forced constructions of the constitutional charter which defines them; and that implications have appeared of a design to expound certain general phrases (which having been copied from the very limited grant of power, in the former articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect, of the particular enumeration which necessarily explains and limits the general phrases; and so as to consolidate the states by degrees, into one sovereignty, the obvious tendency and inevitable consequence of which would be, to transform the present republican system of the United States, into an absolute, or at best a mixed monarchy.
That the General Assembly doth particularly protest against the palpable and alarming infractions of the Constitution, in the two late cases of the "Alien and Sedition Acts" passed at the last session of Congress; the first of which exercises a power no where delegated to the federal government, and which by uniting legislative and judicial powers to those of executive, subverts the general principles of free government; as well as the particular organization, and positive provisions of the federal constitution; and the other of which acts, exercises in like manner, a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments thererto; a power, which more than any other, ought to produce universal alarm, because it is leveled against that right of freely examining public characters and measures, and of free communication among the people thereon, which has ever been justly deemed, the only effectual guardian of every other right.
That this state having by its Convention, which ratified the Federal Constitution, expressly declared, that among other essential rights, "the Liberty of Conscience and of the Press cannot be canceled, abridged, restrained, or modified by any authority of the United States," and from its extreme anxiety to guard these rights from every possible attack of sophistry or ambition, having with other states, recommended an amendment for that purpose, which amendment was, in due time, annexed to the Constitution; it would mark a reproachable inconsistency, and criminal degeneracy, if an indifference were now shewn, to the most palpable violation of one of the Rights, thus declared and secured; and to the establishment of a precedent which may be fatal to the other.
That the good people of this commonwealth, having ever felt, and continuing to feel, the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions of the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid, are unconstitutional; and that the necessary and proper measures will be taken by each, for cooperating with this state, in maintaining the Authorities, Rights, and Liberties, referred to the States respectively, or to the people.
That the Governor be desired, to transmit a copy of the foregoing Resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the Legislature thereof; and that a copy be furnished to each of the Senators and Representatives representing this state in the Congress of the United States.
(author: James Madison)
Kentucky Legislature in the House of Representatives
November 14th, 1799THE representatives of the good people of this commonwealth in general assembly convened, having maturely considered the answers of sundry states in the Union, to their resolutions passed at the last session, respecting certain unconstitutional laws of Congress, commonly called the alien and sedition laws, would be faithless indeed to themselves, and to those they represent, were they silently to acquiesce in principles and doctrines attempted to be maintained in all those answers, that of Virginia only excepted. To again enter the field of argument, and attempt more fully or forcibly to expose the unconstitutionality of those obnoxious laws, would, it is apprehended be as unnecessary as unavailing.
We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument. Our opinions of those alarming measures of the general government, together with our reasons for those opinions, were detailed with decency and with temper, and submitted to the discussion and judgment of our fellow citizens throughout the Union. Whether the decency and temper have been observed in the answers of most of those states who have denied or attempted to obviate the great truths contained in those resolutions, we have now only to submit to a candid world. Faithful to the true principles of the federal union, unconscious of any designs to disturb the harmony of that Union, and anxious only to escape the fangs of despotism, the good people of this commonwealth are regardless of censure or calumniation.
Least however the silence of this commonwealth should be construed into an acquiescence in the doctrines and principles advanced and attempted to be maintained by the said answers, or least those of our fellow citizens throughout the Union, who so widely differ from us on those important subjects, should be deluded by the expectation, that we shall be deterred from what we conceive our duty; or shrink from the principles contained in those resolutions, therefore:
RESOLVED, That this Commonwealth considers the federal Union, upon the terms and for the purposes specified in the late compact, conducive to the liberty and happiness of the several States: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeably to its obvious and real intention, and will be among the last to seek its dissolution: That, if those who administer the General Government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, an annihilation of the State Governments, and the creation upon their ruins, of a General Consolidated Government, will be the inevitable consequence: That 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 despotic - 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 the infraction; and That a Nullification by those sovereignties, of all unauthorized acts done under color of that instrument is the rightful remedy: That this Commonwealth does, under the most deliberate reconsideration, declare, that the said Alien and Sedition Laws are, in their opinion, palpable violations of the said Constitution: and, however cheerfully it may be disposed to surrender its opinion to a majority of its sister States, in matters of ordinary or doubtful policy, yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That, although this Commonwealth, as a party to the federal compact, will bow to the laws of the Union, yet, it does, at the same time declare, that it will not now, or ever hereafter, cease to oppose in a constitutional manner, every attempt at what quarter soever offered, to violate that compact.
And, FINALLY, in order that no pretext or arguments may be drawn from a supposed acquiescence, on the part of this Commonwealth in the constitutionality of these laws, and be thereby used as precedents for similar future violations of the federal compact - this Commonwealth does now enter against them its SOLEMN PROTEST.
Thomas Todd, C.H.R.
In SENATE, Nov. 22, 1799
B. Thruston, C.S.
(Approved December 3rd, 1799.)
(author: Thomas Jefferson)
Kentucky Legislature in the House of Representatives
November 19th, 1799Whensoever the general government assumes undelegated powers, its acts are unauthoritative, void and of no force; that to the contract (the Constitution) each State acceded as a State and is an integral party; that government created by this Contract 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 measures of its powers. But, that as in all other cases of compact among parties having no common judge, each party has an equal right to judge for itself as well as of infraction as of the mode and measure of redress.
First. RESOLVED, That every officer of the federal government, whether legislative, executive, or judicial, is the servant of the people and is amenable and accountable to them. That being so, it becomes the people to watch over their conduct with vigilance, and to censure and remove them as they may judge expedient. That the more elevated the office and the more important the duties connected with it may be, the more important is a scrutiny and examination into the conduct of the officer. And that to repose a blind and implicit reliance in the conduct of any such officer or servant is doing injustice to ourselves.
Second. RESOLVED, That war with France is impolitic and must be ruinous to America in her present situation.
Third. RESOLVED, That we will at the hazard of our lives and fortunes, support the Union, the independence, the Constitution, and the liberty of the united States.
Fourth. RESOLVED, That an alliance with Great Britain would be dangerous and impolitic; that should defensive exertions be found necessary, we would rather support the burden of them alone than embark our interests and happiness with that corrupt and tottering monarchy.
Fifth. RESOLVED, That the powers given to the president to raise armies, when he may judge necessary - without restriction as to number, -- and to borrow money to support them, without limitation as to the sum to be borrowed or the quantum of interest to be given on the loan, are dangerous and unconstitutional.
Sixth. RESOLVED, That the Alien Bill is unconstitutional, impolitic, unjust, and disgraceful to the American character.
Seventh. RESOLVED, That the privilege of printing and publishing our sentiments on all public questions is inestimable, and that it is unequivocally acknowledged and secured to us by the constitution of the united States; that all the laws made to impair or destroy it are void, and that we will exercise and assert our just right in opposition to any law that may be passed to deprive us of it.
Eighth. RESOLVED, That the bill which is said to be now before congress, defining the crime of treason and sedition and prescribing the punishments thereof, as it has been presented to the public, is the most abominable that was ever attempted to be imposed upon a nation of free men.
Ninth. RESOLVED, That there is a sufficient reason to believe, and we do believe, that our liberties are in danger; and we pledge ourselves to each other and our country that we will defend them against all unconstitutional attacks that may be made upon them.
Tenth. RESOLVED, That the forgoing resolutions be transmitted to our representative in congress, by the chairman, certified by the secretary, and that he be requested to present them to each branch of the legislature and to the president, and that they also be published in the Kentucky Gazette.
Continue to Mr. Madison's Report -- January 7, 1800
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