The Virginia and Kentucky Resolutions Reconsidered: "An Appeal to the Real Laws of Our Country".

IN 1798, AFTER A DECADE OF POLITICAL DEFEATS, VIRGINIA REPUBLICANS faced the gravest scenario contemplated in their ideology: the federal government, no longer headed by a Virginian Cincinnatus who had proven himself willing to relinquish power, stood on a war footing. Despite what Republicans understood as the nation's moral obligation, the Federalists finally had taken sides in the European wars in opposition to republican France. This decision had led them also to expand the American army and augment the American navy. In addition, as Republican thought predicted. Federalists had taken drastic measures aimed at tamping down domestic dissent.

With the passage of the Alien and Sedition Acts, it seemed that the Federalist majority in Congress might guarantee itself a permanent domination. The Sedition Act prohibited all criticism of "the government of the United States, or either house of the Congress ... or the President" (but did not

specifically exempt from criticism the vice president--who, of course, was Thomas Jefferson), while the Alien Friends Act subjected friendly foreigners--including Representative Albert Gallatin, a leading Republican--to the government's arbitrary control. President John Adams, Jefferson's onetime revolutionary colleague, seemed a happy convert to the cause of "monarchism." Jefferson, recognized leader of the Republican opposition, decided to forgo candid expression of his sentiments even in letters to bosom friends lest Federalist postmasters, whom he suspected of rifling through his mail, expose him to prosecution.

At the end of their collective rope (or at least imagining a gallows in the intermediate future) the Republican high command lit upon a strategy: it would have the Virginia General Assembly and the legislature of a sympathetic state (Jefferson thought it should be North Carolina's, but the influence of members of the Nicholas family--which included prominent Kentucky and Virginia Republicans--in Kentucky meant that its legislature served the purpose in the end) adopt a statement of Republican constitutional principles. Americans at large would thus be offered an alternative political standard to which they could repair, and the Federalist government would receive a tacit dare to initiate sedition prosecutions against an unsympathetic state legislature.(1)

The Virginia and Kentucky Resolutions of 1798 should not be understood as the invention of distraught minds faced with extraordinary circumstances. Although the situation faced by Virginia Republican leaders at the end of the 1790s was urgent, the twin enunciations of their constitutional position adopted by the Virginia and Kentucky legislatures corresponded closely to the explication of the Constitution offered by Federalists in the Richmond Ratification Convention of 1788. By the time matters came to a head in 1798, Virginians had been insisting on holding the Federalists to their vows of 1788 for a full decade.

From almost the minute they were promulgated, the Virginia and Kentucky Resolutions of 1798 came to be seen as the touchstone of Virginia's constitutionalism. When the identities of their main authors, James Madison and Thomas Jefferson, became known more than a decade after the fact, the resolutions took on additional luster, and sectionalist and particularist southerners based their arguments on them up to 1861 and after.(2)

The standard accounts of the events of 1798 have Jefferson and Madison teaming to concoct a constitutional doctrine that might be useful in defense of civil liberties. According to these accounts, the two eminent Virginians directed their salvo against what was seemingly an endless string of Federalist victories in federal politics--what Jefferson called "the reign of witches"--that finally drove many Republicans to desperation.(3)

Examined solely from the perspective of Virginia, however, that standard account is simply mistaken. The decision to fall back on the state legislatures as on the last ditch may have been desperate from the point of view of national-minded Virginians like Jefferson, but all the elements of "the Virginia doctrine" of 1798 had been present in that state's political tradition for decades. For John Taylor of Caroline, a leading Virginia Republican and sometime U.S. senator, the convergence of his long-trumpeted views with those of his fellows in Virginia's Republican leadership marked the opportunity of a lifetime.(4) Taylor's views were not his alone. Many Virginians agreed with him, and he and Jefferson differed mainly in the timing of their respective realizations that reiteration of ultimate principles was necessary in the 1790s. Evidence of Jefferson's having long held views similar to those that he had Kentucky adopt in 1798 can be found in his earliest political writings.

Among the views of other Virginians, those of Edmund Randolph concerning the relationship among the American republics would have momentous import in 1788. As the leading Federalist speaker in the Richmond Ratification Convention, Randolph engaged in a famous rhetorical duel with the continent's preeminent orator, Patrick Henry.(5) In the closing days of the convention, Randolph, one of five members of the committee appointed to draft an instrument of ratification, found occasion to explain what that instrument meant.(6) Following one of Henry's several lengthy speeches warning that many unspecified new federal powers would be inferred from the "necessary and proper" and "general welfare" clauses, Randolph denied that any such inference in favor of the federal government was justifiable. Pointing to the instrument of ratification, he said, "All rights are therein declared to be completely vested in the people, unless expressly given away. Can there be a more pointed or positive reservation?" Randolph's explanation reduced the proposed constitution from a national charter--as it was conceived to be by the most nationalist Federalists--to the latest in a long line of compacts, stretching back to the early seventeenth century, between Virginia and what Virginians understood to be "federal" authority. In fact, Randolph's use of the word expressly echoed Article II of the Articles of Confederation, which famously limited the powers of the first federal government to those "expressly delegated" to it.(7)

Later on the same day, George Nicholas, one of Randolph's fellow members of the committee to draft the ratification instrument, assured the convention that the Constitution would be a contract and that Virginia was to be one of thirteen parties to it. The rotund Nicholas's explanation carded special weight because he was understood generally to speak for James Madison. Nicholas's elaboration was totally unexceptionable as a matter of contract law. The ratification instrument, he said, would be binding in using the language to which Randolph had referred:

   For says he, these expressions will become a part of the contract. The
   Constitution cannot be binding on Virginia, but with these conditions. If
   thirteen individuals are about to make a contract, and one agrees to it,
   but at the same time declares that he understands its meaning,
   signification and intent, to be, what the words of the contract plainly and
   obviously denote; that it is not to be construed so as to impose any
   supplementary condition upon him, and that he is to be exonerated from it,
   whensoever any such imposition shall be attempted--I ask whether in this
   case, these conditions on which he assented to it, would not be binding on
   the other twelve? In like manner these conditions will be binding on
   Congress. They can exercise no power that is not expressly granted them.

Thus reassured by two of the five men in a position to know that the anti-Federalists' (in particular, Henry's) warnings were misplaced and having obtained the further promise that radical amendments would be sought immediately, the Richmond Convention ratified the Constitution by a vote of 52 percent to 48 percent. Virginia, as the leading Federalist spokesmen explained it, had entered into a new contractual arrangement with its fellow states.(8)

James Madison, third of the five members of the committee to draft the instrument of ratification, also wrote much of The Federalist, including essay 39. There he claimed that, "Each State in ratifying the Constitution, is considered as a sovereign body independent of all others, and only to be bound by its own voluntary act." While it seems that very few of the members of the ratifying convention in Richmond had read any of The Federalist by the time they voted on ratification, many of the men at the top of the Virginia political pyramid certainly had read it by December 1798.(9)

Virginia was at odds with the federal government virtually from the latter's inception. Anti-Federalists and reluctant Federalists detected "consolidation" from the start, and they viewed it as the chief prospect threatening the dissolution of the American union. As early as 1789 Richard Henry Lee counseled "the friends of liberty to guard with perfect vigilance every right that belongs to the states, and to protest against every invasion of them, taking care always to procure as many protesting states as possible...." Leading Virginia Federalists of 1787-1788 called Patrick Henry "a prophet," and almost none approved of Alexander Hamilton's program of social and financial consolidation. In 1790 Henry persuaded the General Assembly to apply its colonial method of remonstrance in a dispute with the general government: adopting a resolution setting out Virginia's constitutional position. Henry's resolution, which he introduced in the House of Delegates on November 3, 1790, called Hamilton's act for federal assumption of all state debts "repugnant to the Constitution, ... as it goes to the exercise of a power not expressly granted to the General Government." It passed the House that day, the Senate six weeks later.(10)

Seventeen days after Henry introduced his resolution, which he must have taken satisfaction in crafting to echo the language of George Nicholas's assurances in the Richmond Convention, a General Assembly committee reported an address on Washington Administration policy. That address lamented the resemblance of the Hamiltonian system to the English fiscal system, which it blamed for corrupting both houses of the British Parliament, as well as the British courts, and thereby threatening liberty. Hamilton's policy, it claimed, threatened subordination of agriculture or "a change in the present form of Federal Government." The states, it insisted in language echoing Randolph's and George Nicholas's assurances in the Richmond Convention, were "contracting parties," their rights "sacred." Finally, it insisted that Virginia had ratified the Constitution of 1787 only on the understanding "that every power not granted was retained" by the states, and the power to service the states' debts certainly had not been granted. Nicholas's and Randolph's explanation of the Constitution, and thus of the significance of Virginia's ratification, had come to be seen as completely authoritative by Virginia's political leadership. As in the Imperial Crisis and the Confederation period, Virginians continued to conceive of their interstate union as precisely a federal union, a union among parties that were somehow on an equal footing. Virginia, not America, remained the primary unit of government; the United States government, a convenience.(11) According to Edmund Randolph, then a member of George Washington's cabinet, a trip through Virginia in 1793 showed that planters at large had come under the influence of the brilliant pamphleteer, John Taylor of Caroline. An anti-Federalist in 1787, Taylor was committed by his reading of history to a posture of hyper-vigilance in the new government's first years. If the fledgling government were allowed to lay down precedents antithetical to the contractual reading of the Constitution that Federalists had promised at Richmond, greater arrogations of the states' power would follow inevitably. If a new government be allowed to stray uninterruptedly, he wrote, "it will soon become too strong for correction, and instead of being a blessing, it will turn out a curse to its parents." "By sparing the rod, we may spoil the child." Taylor was therefore predisposed to make the 1790s, the new government's first, a contentious decade; Alexander Hamilton's love of Robert Walpole, the master of Parliamentary "corruption" through ingenious financial management, meant Taylor had good reason to fear the trajectory of government policy.(12)

John Taylor's surviving private correspondence of the 1790s is filled with calls for his associates, Thomas Jefferson, James Monroe, and James Madison, to stir the Virginia state government into opposition via confrontation (in time, the majority of Virginia's political elite would see matters Taylor's way). His pamphlets of the 1790s were masterpieces of sometimes inspired, sometimes befuddled opposition to Federalism. In them, he laid out the case for the notion that federal officeholders were using their control of the government to milk other Americans of money. In the end, he insisted again and again, they would convert the offices they held--those of senators and president--into lifetime fiefs in the former case, a hereditary one in the latter. (As regards the presidency, he claimed to have the testimony of then Vice President John Adams as evidence of this intention.)(13)

Perhaps the most significant: of Taylor's pamphlets was that which he wrote in response to the adoption of a federal carriage tax. Such a tax might seem to be a mere excise, one the owners of carriages (that is, the wealthy) could be expected to pay without suffering undue hardship. Yet, the carriage tax was, as Taylor told it, highly sectional in its incidence. As he stated in a footnote, only two carriages were subject to the tax in the entire state of Connecticut. Carriage owners were in the South, and "States which impose unequal taxes are masters; those which pay them, slaves." Adoption of a policy of enslavement, he added, "dissolve[s]" the union. If the federal government could tax carriages, what other excise with a sectional beating might it impose next? There was another type of property that was found almost exclusively in the South, he noted.(14)

Taylor's reference to unequal treatment of states was not accidental, for he believed states to be the sole constituent element of the federal union. "The confederation [that is, the Constitution of 1787] is not a compact of individuals, it is a compact of states." With that proposition as a predicate, Taylor logically derived the postulate that it was for the state legislatures to watch over the federal government, to remain vigilant against overweening exercise of authority. When the states espied federal overreaching, they should note it and oppose it. Americans must obey state and federal majorities "whilst legislating within the pale of the Constitution." If the federal government should violate that limitation, it would have "no controul over" the states, which would have the option of ignoring it.(15)

Taylor realized that this doctrine would be strange to some, but he reasoned that things must be as he described them. If only "those designed to be restrained," for example, federal judges, could enforce the federal Constitution, "America possesses only the effigy of a Constitution." Constitutions would be violated, he taught, and someone must enforce them. In the American federal system, that someone must be the state legislators.(16)

In his earlier pamphlet, An Enquiry into the Principles and Tendency of Certain Public Measures, written in 1793, Taylor claimed that Article V of the federal Constitution recognized state legislatures' status as "state conventions," because it granted them a share of the amendment power. For state legislatures to protest--"to make known the public will"--could not possibly be unconstitutional. They should protest by expositing "explanations of the constitution, according with its spirit--its construction when adopted--its unstrained construction now--and with republican principles." In short, state legislatures should act as Americans have now come to think it is normal for the United States Supreme Court to act.(17)

As far as Taylor was concerned, the problem lay not with Federalists themselves, but in the federal system. This was the great point of disagreement between him and the three eventual members of the Virginia Dynasty. Jefferson, on reading Taylor's apocalyptic letter to a third Virginian, wrote to Taylor to insist that the taxes to pay for the Federalists' new military establishment would cure the American people of their temporary infection with "the X.Y.Z. delusion." The Federalist reign, the vice president hoped, was ephemeral.(18)

To Taylor's suggestion that Virginia and North Carolina should contemplate a separate existence, Jefferson responded with his famous idea that since human nature insured there must always be parties in any free government, Virginia and North Carolina would soon be fighting each other, and even Virginia would be rent by division if it were independent. Jefferson preferred to retain the tie to New England, thus reserving Virginians' ire for the Yankees. Taylor's response to all of this was to ask how, exactly, the predominance of a self-serving party was supposed to be unnatural if party division was natural. As he understood matters, what was needed was not simply a change of men, for a southern aristocracy oppressing the North would be equally as regrettable as a northern one oppressing the South. What he wanted was a change of systems. If a change of men brought temporary amelioration of the problem, he told Monroe, "It would be only like the lucid intervals of a madman."(19)

The flaw in the system flowed, Taylor held, from the Hamiltonian fiscal structure. The bank and the assumption of state debts had generated a large pool of money controlled by only a few--he said 5,000 of the United States' 5,000,000--and those few controlled the federal government via corruption. Political power had been "transferred from the nation to a paper fabrick," yielding "a government of paper." His solution was an amendment banning holders of federal debt and of bank stock from positions in Congress, along with another reducing senators' and presidents' terms in office to three years.(20)

For Taylor, the most perfect embodiment of the people was the state legislature. Unlike the Congress, the Virginia General Assembly was in effect an annual convention of the people, its members chosen from small districts to short terms, thus sharing in their constituents' travails. Constitutional issues were properly decided by the state legislatures, Taylor told Jefferson in the wake of the Virginia Resolutions' adoption, and could be appealed from them to state conventions, as the Romans appealed to dictators. The problem inherent in the federal Constitution was that it offset power against power, which he told Jefferson he considered merely another way of saying that it offset party against party, faction against faction. He would prefer that power be left in the people, not offset against other power.(21)

The people in power recognized that the state legislatures were the perfect republican organs, Taylor said. Otherwise, how could one explain their persistent attempts to undermine those legislatures? Taylor understood the assumption of state debts, intended by Hamilton to tie the wealthy to the central government by tying their economic interests to it, as part of a calculated campaign to destroy the states' autonomy. As his uncle Edmund Pendleton put it in November 1798, "`the federal party' [stands for] absolute submission and non resistance to the administration of government, although it should be in direct violation of the constitution." Pendleton thought that a standing army, a sedition act, and patronage would someday "subject America to executive despotism."(22)

At the decade's close, President John Adams and a Federalist Congress took several measures--expansion of the military establishment, abandonment of efforts to reach a modus vivendi with France, adoption of the Alien and Sedition Acts--that struck Virginia Republicans as the capstones of an imagined conspiracy to erect a monarchy. Taylor grew increasingly frustrated with the refusal of Republican leaders, particularly Jefferson, to step up their opposition. He feared the approach of the time when the Constitution had been so often ignored as to stand in the place of a dead letter.(23)

Republicans bemoaned "consolidation" in the 1790s, for that was the road to monarchy, aristocracy, and/or despotism. When John Adams signed the Alien and Sedition Acts into law on Bastille Day, July 14, 1798, the last few wavering Republicans, the sanguine few, were finally persuaded the time to act had arrived. Pride of place among those whom the events of 1798 persuaded that drastic measures were needed belonged to Vice President Thomas Jefferson.(24)

Jefferson wrote his famous letter to Taylor defending continued union with New England in June 1798. He was convinced, as he told several correspondents, that the taxation resulting from enactment of the Federalist war program would drive the people into the Republican camp. By year's end, though, Jefferson had helped coordinate a campaign in the Virginia Republican leadership to have the General Assembly and some other state's legislature adopt resolutions setting out Virginia's position in the constitutional conflict with the Federalist administration. Those resolutions, penned by Jefferson and Madison and altered insignificantly in debate in the Virginia and Kentucky legislatures, floated like leaves', on the stream of the Virginia constitutional tradition of Jefferson's A Summary View of the Rights of British America, Richard Bland's An Inquiry Into the Rights of the British Colonies, John Taylor's pamphlets, and the Richmond convention's instrument of ratification. Their form and content were in the tradition of Patrick Henry's Stamp Act Resolves and his Resolution of 1790.(25)

In 1786 Jefferson had written to Madison that the general government of the United States should have power only "as to foreign concerns" and should "keep us distinct in Domestic ones...." He then wrote in that vein to two correspondents while the Philadelphia Convention sat in 1787, and his first inaugural address as president included a call for "the support of the state governments in all their rights, as the most competent administrators for our domestic concerns and the surest bulwarks against anti-republican tendencies." The formula of 1786-1787 is also approximately the same as the one Jefferson had used in his Summary View of 1774 to describe the relationship between the king and Virginia/"America." It stuck in his mind ever after.(26)

Jefferson dubbed the Alien and Sedition Acts "merely an experiment on the American mind, to see how far it will bear an avowed violation of the constitution." For perhaps the sole time in his life, Jefferson feared lest the project of a hereditary king and lords, which "are in contemplation, I have no doubt," should succeed while his lethargic compatriots did nothing. He saw the acts as partisan attacks on him and his fellow Republicans. The alien legislation, he told Madison in April, was aimed at Pennsylvania's leading Republican, Geneva-born Albert Gallatin, while the sedition bill was written to stifle "the whig presses. Bache's [the Aurora] has been particularly named." Although he was the incumbent vice president, Jefferson feared that he, too, would be targeted personally. Therefore, for example, he repeatedly implored James Madison to make sure that the seals on all of Jefferson's letters arrived unbroken.(27)

Jefferson felt the necessity of forceful measures in 1798, but he remained a Federalist of '87-'88. Unlike Taylor, he was not convinced that the problem faced by the Republicans lay in the form of the general government. He directed his efforts not at constitutional reform, but at persuasion--of his fellow public officials or, failing that, of the populace at large.

Jefferson's draft Kentucky Resolutions of 1798 bear the impress of his determination, as he had put it in another situation a year earlier, "that the States retain as complete authority as possible over their own citizens." The first resolution declares simply that the states' adoption of the federal Constitution of 1787 did not constitute "unlimited submission" but was limited to certain "special purposes," the rest of which were reserved to the states. When the federal government exceeded its mandate, he added, its acts were "unauthoritative, void, and of no force." Each state was a party to the federal compact, the first resolution concluded, with the other states forming, so far as it was concerned, the other party.(28)

The first half of the first resolution, which has seemed controversial to historians who have considered the Kentucky Resolutions in the past sixty years, was not controversial among Virginia Republicans at the time. Complaining of the weak ground on which he thought Virginia's 1776 constitution stood, Jefferson had written in Notes on the State of Virginia, "It is not the name, but the authority which renders an act obligatory." He had gone on to claim that a constitutional convention in Virginia, followed by popular ratification, would "bind up the several branches of government by certain laws, which when they transgress their acts shall become nullities." The language of the first Kentucky Resolution of 1798 was axiomatic, in Jefferson's mind, given that the United States Constitution had been adopted by virtually the procedure he prescribed. In the Notes, the nullity of unconstitutional acts had been presented as a mechanism for averting rebellion--the proper resort of a republican people when its rights were infringed. The idea that the federal Constitution established a simple compact among sovereign states had been clearly expounded by leading Federalist spokesmen George Nicholas and Edmund Randolph in the waning hours of the Richmond convention.(29)

Jefferson's second draft Kentucky Resolution applied the first resolution to the specific case of the Sedition Act. Finding no delegation to the federal government of a power to punish any such crime as the Sedition Act undertook to proscribe, Jefferson held that act, "and all their other acts which assume to create, define, or punish crimes, other than those so enumerated in the Constitution," to be "altogether void, and of no force." The third Kentucky Resolution applied the language of the Tenth Amendment, along with that of the First Amendment, to the case of the Sedition Act, which it found violative of both amendments. This resolution also fell back on the rhetorical stratagem employed by James Madison in the "Memorial and Remonstrance," which was to say that if any violation of any part of the amendment were tolerated, the other rights enumerated therein would be made vulnerable at the same time. Thus, allowing the Sedition Act to stand was said by Jefferson to threaten an establishment of religion. For that reason, too, the Sedition Act was "altogether void, and of no force."(30)

Jefferson's fourth resolution found the Alien Friends Act void on Tenth Amendment grounds, and the fifth pointed to Article V of the Constitution as explicitly leaving power over immigration to the states until 1808. The sixth found the procedures established for enforcement of the Alien Acts to violate various procedural provisions of the federal Bill of Rights and of Article III of the federal Constitution.(31)

The seventh of Jefferson's draft Kentucky Resolutions might be called the "John Taylor Resolution," for it encapsulated the Republican grievances of the 1790s. The "General Government" had constantly tended, Jefferson wrote, to construe the "general welfare" and "necessary and proper" clauses in such ,a way as to bring about "the destruction of all limits prescribed to their power by the Constitution." Those two clauses were meant to be "subsidiary only to the execution of limited powers," he claimed, not to wipe out the balance of the Constitution by themselves granting unlimited powers. Jefferson looked forward to "revisal and correction" of the General Government's tendency in this regard when the time was propitious, but the matters raised in earlier resolutions could not await that time. They demanded "immediate redress."(32)

Having stated his premise, then found it applicable to the statutes at issue, Jefferson considered in his eighth resolution the question of what action should be taken. In length, the resolution is more than one-third of the whole draft and is by far the most important of Jefferson's resolutions. A committee should be appointed, it began, to correspond with the other states regarding the resolutions. Kentucky must assure its sister states, its co-parties in the union, that "this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union." (Obviously, this section was not drafted with Kentucky in mind, for Kentucky did not exist as a separate entity when the Imperial Crisis began.) Kentucky, it continued (once again following George Nicholas's assurances concerning the Virginia instrument of ratification), viewed union "for specified national purposes, and particularly ... those specified in the late federal compact" to be a good thing, and it would uphold the Constitution establishing such a union "according to the plain intent and meaning in which it was understood and acceded to by the several parties."(33)

Consolidation of the states' powers in one general government "is not for the peace, happiness, or prosperity of these States," Jefferson insisted, and "therefore this commonwealth is determined ... to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth...." Where delegated powers were abused, he said, elections were the remedy, but where undelegated powers were arrogated, "a nullification of the act is the rightful remedy," and every state had a right to nullify all such acts.(34)

Jefferson/Kentucky did not leave it at that but called on other states to concur. "[W]ith them alone it is proper to communicate, they alone being parties to the compact, and solely authorized to judge the last resort of the powers exercised under it," Congress "being ... merely the creature of the compact." If these acts stood, the majority in the General Government could do as it liked to the minority, to state officials, and to citizens at large. These acts must be opposed "at the threshold," or revolution and the discrediting of republicanism worldwide would follow. "[F]ree government is founded in jealousy," and constitutional limitations on power were the result. The Alien and Sedition Acts showed that Americans' jealousy had been wise. Congress had conferred, and the president had accepted, a tyranny, and so "let no more be heard of confidence in man, but bind him down by the chains of the Constitution." Jefferson's statement that only the states were parties to the Constitution and that innovation must be met at the threshold matched the assertions Taylor had made in his pamphlets thus capturing what Edmund Randolph in 1793 had called the common understanding of Virginia planters.(35)

Looking back on 1798, historians know of 1954, 1861, and 1832, and they have tended to want to dissociate Jefferson's bald, clear language from the uses to which his doctrine was later put. The leading article on the Virginia and Kentucky Resolutions, which was written in 1948, was introduced by an editorial note making this intention clear. Indeed, the language in which the distinctions are commonly drawn between Jefferson on one side and segregationists, Confederates, and Nullifiers on the other is that of contemporary political debates. Thus, historians have claimed that Jefferson's reference to the right of resistance in cases not made federal as a "natural" right marked his doctrine as revolutionary.(36)

A different reading seems more in line with Jefferson's argument. Where the matter in question was beyond the General Government's authority, he said, the government's edicts thereon were null, and it was permissible to treat them as such. It was the General Government that was said by Jefferson to have been engaged in "seizing the rights of the States," so it was the General Government itself that stood accused of engaging in revolution. The status quo found the general and the state governments each in possession of its own rightful powers. Actions that Jefferson considered unlawful had brought the nation to the pass in which it found itself in 1798. When Virginia Republicans looked in the mirror, they did not see revolutionaries. As George Nicholas explained, the Republican leadership contemplated merely "an appeal to the real laws of our country."(37)

James Madison's resolutions for Virginia were sponsored in the House of Delegates by John Taylor of Caroline. The leading figures in the party had agreed that the resolutions should be couched in language that would leave them room to push matters as far, or to do as little, as the situation required. (The exception was Taylor himself, who did not know of the plan to have Virginia and another state adopt such resolutions until they had already been written. Ironically, state resolutions had long been Taylor's panacea.) Such calibration of their argument was necessitated by the tenuous position of Republicanism in the North, where talk of disunion might destroy both the small coterie of like-minded leaders and the prospects for continued union. The characteristically cautious Madison's version of the resolutions against the Alien and Sedition Acts was vaguer than Jefferson's, but still clear enough (as he would later regret).(38)

Jefferson wrote Wilson Cary Nicholas, a rising politician who was a member of the General Assembly in 1798, to suggest a change in Madison's draft language. In keeping with the draft of Kentucky's resolutions, Virginia's should conclude by calling on the other states "to concur with this commonwealth in declaring, as it does hereby declare, that the said acts are, and were ab initio, null, void, and of no force, or effect." Nicholas obliged. Instead of consulting its sister states, Virginia would make a pronouncement and ask them to agree.(39)

Jefferson's Kentucky Resolutions gave later particularists a platform, but Jefferson was not in a localist mood. He still expected the Federalist program ultimately to lead to Federalism's downfall (as, of course, it did). Unlike John Taylor, who wanted to force the issue--which perhaps explains why he was kept out of the process of drafting the resolutions--Jefferson said he would simply have the two legislatures declare the Alien and Sedition Acts void, then bide his time. The effect of "the X.Y.Z. delusion" would pass when the weight of the Federalists' new war taxes began to be felt, and "our unanimity" would return. If he proved wrong, there would be time enough to jump from that bridge when they came to it. The Federalist domination was temporary.(40)

Thus chastened, Taylor carried the resolutions program into the Virginia General Assembly's preponderant lower house. The House of Delegates gave the Virginia Resolutions its approval by a vote of 100 to 63; the Virginia Senate concurred, 14 to 3, and the classic statement of states' rights dogma had Virginia's imprimatur.(41)

John Taylor introduced the Virginia Resolutions on December 13, 1798. In doing so, he offered several different rationales. First, he noted that English and British ]rings who had dared to attempt to exercise more power than they had a right to had been opposed by their fellow officers, whether lords, commons, or both groups in tandem. Surely Americans would be no less quick to defend their rights.(42)

Starting with the Alien Acts, Taylor played the stock Virginia rhetorical card. If aliens had rights, he said, the Constitution might defend them. If Congress could ignore or abridge aliens' rights, it could do the same to others'. He soon made the same point regarding the Sedition Act's abridgment of the freedom of speech. Turning to the question of opposition itself, Taylor characterized his position as a quandary: as a state representative, he had sworn "to oppose unconstitutional laws. What was he to do?"(43)

The United States Constitution, he insisted in the language of John Locke, was "nothing more than a deed of trust made by the people to the government." It could be construed as a contract or deed. The ratifiers (whose understanding was the only one that mattered, as they were the "signatories" to the compact) had not contemplated giving the federal government power to make sedition laws. If allowed to continue on its current path, Congress, controlling the dissemination of ideas, would soon detach the affections of "the people from the state governments, and attach them to the general government." Consolidation of this kind would lead to despotism, then to revolution.(44)

Another Republican legislator noted that the inferential construction favored by Federalists differed in no essential way from the British mode of constitutional reasoning against which Americans had fought their war for independence. He claimed that the entire experiment in writing state constitutions had at its root the desire to foreclose such construction and so did the decision to enumerate congressional powers explicitly.(45)

Another Republican added that the argument Federalists made would justify anything the general government might do. Then, "the nature of that Constitution was changed. It was not what the people and states understood it to be at the time of its ratification. Its powers were enlarged to a dangerous extent. It could no longer be considered as producing a confederation, but certainly established a consolidated government." If the Sedition Act could prevent the people from learning of official malfeasance, "power would stand in the place of the Constitution," and American liberties would meet the same fate as those in other countries.(46)

Virginian Republicans held that in adopting the proposed resolutions, Virginia would not be threatening violence but would be attempting to persuade. Publius, they noted (in a reference to an essay penned by Hamilton, the Federalists' favorite), said that such interstate coordination of opposition was desirable.(47)

"Implication would lead us into an endless discussion," another Republican insisted, so only the "plain sense and meaning of the Constitution" was acceptable. The ratification instrument of Virginia had binding, legal effect, he thundered, including the section reserving all powers not delegated--as expounded, one infers, by George Nicholas and Edmund Randolph. Once it was understood that undelegated powers were reserved to the states, the idea that the "necessary and proper" clause was a substantive grant of authority fell of its own weight.(48)

Future governor James Barbour, the youngest member of the House of Delegates, made a telling point that has often been ignored in considerations of the Virginia and Kentucky Resolutions. "If the alien and sedition laws are unconstitutional," he pointed out, "they are not law, and of course of no force." Usurpation of this type was "void." Virginia had always been in the forefront of the states when it came time to defend inherited rights, and he trusted it would be again. "[T]he sense of the American people, contemporaneous with the adoption of the general government, when the attributes and qualities of that government were best understood," was "that all powers not granted were retained." The Tenth Amendment underscored the point, and any other doctrine threatened despotism. To the Federalist argument that the Alien Act could not be unconstitutional, for Virginia had enacted a similar act in 1792, Barbour responded that a doctrine allowing the general government to do anything the state governments could do would allow it to do anything at all.(49)

A Federalist posited that even if the General Assembly adopted "Taylor's Resolutions," Virginians would still be bound to obey the Alien and Sedition Acts. The acts' progenitor, Congress, possessed authority superior to that of the General Assembly, so the latter could not void the acts. Congress was also due greater respect than the General Assembly, for Virginia was more perfectly represented in Congress than in its own legislature (malapportioned, the argument went, as it was). The Virginia Resolutions struck Federalists as "dangerous," "improper," and "unnecessary," and the Kentucky version sounded "the tocsin of rebellion."(50)

A Republican instantly demanded to be told how New Hampshire, for example, could be said to represent Virginia better than its own General Assembly. As all knew, "the eastern people in Congress" habitually called Virginians "disorganizers, jacobins, &c." Another Republican member then refuted the argument of Emmerich de Vattel, which Federalists had raised, about sovereigns' authority over aliens. Vattel assumed a unitary sovereign, but in America the federal government's want of authority over aliens did not leave those aliens in limbo. Instead, the Republicans insisted that the states retained authority over aliens; the clause of the Constitution that reserved control over immigration to the states at least until 1808 did not apply solely to slave imports, for the Tenth Amendment reservation of all matters not delegated to the federal government applied. The Virginia General Assembly had long understood itself to have power over immigration; otherwise, it would never have passed the 1792 law regulating aliens to which Federalists had pointed.(51)

This Republican, too, borrowed the argument from Madison's "Memorial and Remonstrance" about uncontested violation of one right endangering all rights. Like his predecessors, he saw a religious establishment in the offing. He also equated the Jeffersonian formula "null, void, and of no effect" with "unconstitutional." He would have no objection to removing the former if the latter were left, for the exact same meaning would still be conveyed.(52)

Federalist General Henry ("Light-Horse Harry") Lee argued that the Constitution was "a compact among the people"--despite the claim of the Resolutions that it was "a compact of states." A Republican legislator responded that the states had been the only ratifiers. "Should the words, `we the people,' then change the nature of the compact, contrary to the historical facts of the day?" He "thought not." Another Republican averred that the resolutions' specific phrasing did not matter, that, as James Barbour had noted, "if they [the disputed federal acts] were unconstitutional, they, of course, were null and void."(53)

Having sat mute through several days' debate, John Taylor rose to speak again. For once echoing George Nicholas, he said that if all governments have powers of self-preservation, as a Federalist had claimed, then the states had the right to oppose "such unconstitutional laws of Congress, as may tend to their destruction." Neither a state nor the general government could be the ultimate judge of its own powers, else the one with that power would swallow up the other.(54)

Some of the Federalists had said that Taylor's resolutions were too strong, and others had opined that laws as egregious as Republicans claimed the Alien and Sedition Acts to be should be met with force. John Taylor's thus became a "middle way," as he was quick to note. Adhering to the political theory of the baron de Montesquieu, which had come to be Republican dogma, Taylor insisted that consolidation would yield despotism, as no state as large as the United States could be both consolidated and free. Federalism, with the small f, was essential if freedom was to endure.(55)

The notion, raised by Federalists, that the common law underlay the Sedition Act seemed to Taylor a horrible threat to republicanism in Virginia. The ratifiers of the federal Constitution could never "have supposed that they were establishing a government which could at pleasure dip their hands into the inexhaustible treasuries of the common law and law of nations, and thence extract as much power as they pleased." (His doomsday scenario, predictably, involved an establishment of religion.) Taylor asserted that the federal government's power was limited on its face.(56)

Taylor denied that there was any sovereignty in the federal government at all. In Great Britain, sovereignty allowed the king, lords, and commons to legislate in any way that came to mind; in America, the federal government was not sovereign. Yet, Taylor feared that he detected in the Federalist argument the idea that there was a pact between the people and the government. From there, the distance to sovereignty in the federal government was short. Taylor held that the Constitution obliged the states to defend their rights as a way of averting the prospect of a sovereign federal government.(57)

On the last day of the debate, Federalists again asserted that the states were not, as the third resolution claimed, the only parties to the Constitution; they did concede that perhaps the states instigated the Philadelphia Convention. However, the delegates to the Philadelphia Convention had ignored their writ, which was merely to recommend amendments to the Articles of Confederation. To push their argument even further, the Federalists pointed out that the Philadelphia Convention had referred the proposed Constitution of 1787 for ratification not to the legislatures but to special conventions of the people. The approval of nine states was required to insure that a majority of the people ratified. Only the people could have adopted the supremacy clause, Article VI, clause 2, which set the Constitution of the federal government above those of the states. (The legislature subsequently adopted the Virginia Report of 1799-1800 to explain the Virginia Resolutions. In that report, state was defined as the people of the state, thus answering this Federalist objection.) If the General Assembly could declare a federal statute void, as the seventh Virginia Resolution purported to do, so could any other state legislature. In that event, Federalists saw no hope for the federal union.(58)

William Branch Giles, who guided the Virginia Resolutions through the state Senate, held that the Sedition Act was not a means of dealing with a current crisis. It was an end to which Federalism had long been pointing. Federalists in the General Assembly had criticized the Republicans for trying to convert the legislative into a judicial body. What was wrong with that? Giles wanted to know. Had not the delegates taken an oath to support the Constitution? They would do so.(59)

Giles concluded that the federal compact was not "only" among the states. Still, the last Congress had done what it could to usher in a monarchy. Many in the House had called union desirable, but union to what end? "To abridge the freedom of the press." The language of the proposed resolutions had drawn criticism, but Giles doubted the critics would approve the Lord's Prayer. He would be satisfied with a simple declaration of unconstitutionality. Anything less would be dereliction of duty.(60)

In the House of Delegates, John Taylor agreed to strike "alone" from the third resolution. He would also excise "but utterly null, void, and of no force or effect" from the same resolution, since several Federalists had objected to it, and he agreed with the Republican speakers who had explained that it was a mere redundancy, anyway. At Wilson Cary Nicholas's urging, though, the House voted down Henry Lee's suggestion to omit the fourth resolution. As Nicholas--who had been a Federalist in the Richmond convention of 1788--put it, far more than the Alien and Sedition Acts was at issue. Virginia would disapprove the whole Federalist regime.(61)

Despite the adoption of the resolutions, Taylor was disappointed. As he wrote Jefferson, he would have appealed the legality of the Federalist actions to a state convention. In accepting a mere declaration, he had instead complied with Jefferson's wish. Taylor need not have been so unhappy. He and his fellows had laid down the marker, and Virginians would follow the path laid out in 1798 for decades to come. A General Assembly notable for the absence of the Revolutionary generation--of Richard Bland, George Mason, Patrick Henry, and their cohort--had dedicated itself to the constitutional faith of the fathers. Virginians rebelled "to have a Virginian government" in 1776, and their sons would continue to insist upon a locally controlled government.(62)

As Jefferson, in Newtonian fashion, described it, many Virginians saw the federal union as an analogue of the solar system itself, dependent for its proper functioning on the "beautiful equilibrium" resulting from "their respective weights and distances." Many, though, would agree with John Taylor of Caroline, who at the high tide of Virginia Federalism had frankly avowed a theory of the complete sovereignty of the states. For the nonce, the Republicans could approve a federal government reflecting Judge St. George Tucker's dictum that the general government was founded "to be the organ through which the united republics communicate with foreign nations, and with each other." The Virginians had arrived at a consensus, too, that the federal Constitution should be interpreted, in Jefferson's words, "according to the true sense in which it was adopted by the States [that is, Virginia], that in which it was advocated by its friends.... I am for preserving to the States the powers not yielded by them to the Union...."(63)

(1) Victor Dennis Golladay, "The Nicholas Family of Virginia, 1722-1820" (Ph.D. dissertation, University of Virginia, 1973).

(2) Stanley Elkins and Eric McKitrick, The Age of Federalism (New York and Oxford, 1993), 720.

(3) Adrienne Koch and Harry Ammon, "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," William and Mary Quarterly, 3d ser., V (April 1948), 147-76. Koch and Ammon's account has been followed closely by many authors, including the two leading Jefferson biographers, Merrill D. Peterson, Thomas Jefferson and the New Nation: A Biography (New York, 1970), 609-16; and Dumas Malone, Jefferson and His Time. Volume III: Jefferson and the Ordeal of Liberty (Boston, 1962), xix, 399-409, and 509. Thomas Jefferson to John Taylor, June 1, 1798, in Paul Leicester Ford, ed., The Works of Thomas Jefferson ... (12 vols.; New York and London, 1904-1905), VIII, 430-33 (quoted phrase on p. 432).

(4) K. R. Constantine Gutzman, "Old Dominion, New Republic: Making Virginia Republican, 1776-1840" (Ph.D. dissertation, University of Virginia, 1999), 1-272; and Norman K. Risjord, The Old Republicans: Southern Conservatism in the Age of Jefferson (New York and London, 1965), 11.

(5) While James Madison is often described as the great eminence of the convention, his feeble voice made him a poor floor leader. As a result, he took no part in the debate concerning the report of the instrument of ratification, which the drafting committee's other members left largely to Randolph and to George Nicholas to defend. Nicholas's speeches throughout the convention echoed the letters of Publius, and, given the obvious discrepancy between Nicholas's and Madison's intellects, this cannot have been accidental. Madison's oratorical shortcomings were accentuated during the convention by a passing illness. Merrill Jensen, John P. Kaminski, and Gaspare J. Saladino, eds., The Documentary History of the Ratification of the Constitution (18 vols.; Madison, Wis., 1976-), IX, 906.

(6) Ibid., X, 1513n.

(7) Speech of Edmund Randolph, June 24, 1788, ibid., 1483 (italics added); "The Articles of Confederation," in Jack P. Greene, ed., Colonies to Nation: A Documentary History of the American Revolution (New York and London. 1975), 428-36 (Article II at 429).

(8) Speech of George Nicholas, June 24, 1788, in Jensen, Kaminski, Saladino, eds., Documentary History of the Ratification of the Constitution, X, 1506-7 (italics added). If Nicholas was incorrect, one might argue that the misunderstanding made the federal compact void ab initio as regards Virginia if the result was that the two sides (Virginia on the one hand and the other ratifying states on the other) understood the contract, as Nicholas called it, differently. Raffles v. Wichelhaus, 159 Eng. Rep. 375 (1864) (the "Peerless" case). It also may have been void from the beginning if, in the words of the Restatement of Contracts, "neither party [knew] or [had] reason to know the meaning attached by the other.... "Restatement (Second) of Contracts, section 20. This is not an easy question, though. Ibid., section 50 (2). Perhaps most significantly, the current state of contract law holds, "A reply to an offer which purports to accept it but is conditional on the offeror's assent to terms additional to or different from those offered is not an acceptance but is a counter-offer." Ibid., section 59. The assumption that the proposed constitution was an "integrated agreement" (i.e., that it "contain[ed] within its four corners the entire agreement of the parties"--Black's Law Dictionary [5th ed., St. Paul, 1979])--is also dubious. 4 S. Williston, Contracts, section 633, at 1014 (3d ed., 1961); 3 A. Corbin, Contracts, section 581, at 442 (2d ed., 1960). George Nicholas's explanation was perfectly consistent with the law of contracts. For the law of treaties between states, which is essentially identical to that of contracts between individuals on this point, see Malcolm Shaw, International Law (4th ed., Cambridge, Eng., 1997). For the Virginia convention's final vote on ratification, see Jensen, Kaminski, and Saladino, eds., Documentary History of the Ratification of the Constitution, X, 1540-41.

(9) Alexander Hamilton, James Madison, and John Jay, The Federalist, edited by Jacob E. Cooke (Middletown, Conn., 1961), 250-57 (quotation on p. 254).

(10) Richard Henry Lee to Patrick Henry, September 14, 1789, in James Curtis Ballagh, ed., The Letters of Richard Henry Lee. Volume II (New York, 1914), 501-4 (quotation on p. 502). See also Richard Henry Lee to Patrick Henry, September 27, 1789, ibid., 504-7, at 506; Richard Henry Lee to Samuel Adams, April 25, 1789, ibid., 483-85, at 484; and Richard Henry Lee to Samuel Adams, August 8, 1789, ibid., 495-497, at 495-96. Richard R. Beeman, The Old Dominion and the New Nation, 1788-1801 (Lexington, Ky., 1972), 77; Journal of the House of Delegates of ... Virginia; Begun ... on [October 18, 1790], November 3, 1790; Journal of the Senate of ... Virginia; Begun ... on [October 18, 1790], ]December 21, 1790. Even those Virginians who sympathized with Hamilton's goals (such as assumption) thought the states were better situated to levy taxes in the least burdensome way. (US. Rep.) Andrew Moore to Col. Robert Gamble, March 9, 1790, Claiborne Family Papers (Virginia Historical Society, Richmond).

(11) Journal of the House of Delegates, November 22, 1790, and December 16, 1790; Richard Bland, An Inquiry into the Rights of the British Colonies (1766), printed in William J. Van Schreeven and Robert L. Scribner, comps, and eds., Revolutionary Virginia: The Road to Independence.... Volume I (Charlottesville, 1973), 28-44; and Thomas Jefferson, "Draft of Instructions to the Virginia Delegates in the Continental Congress" (MS text of A Summary View, &c.) [July 1774], in Julian P. Boyd et al., eds., The Papers of Thomas Jefferson. Volume I (Princeton, N.J., 1950), 121-35. For the tendency among Republicans nationwide to see events of the 1790s through the prism of English history see Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology (Ithaca and London, 1978).

(12) Henry H. Simms, Life of John Taylor: The Story of a Brilliant Leader in the Early Virginia State Rights School (Richmond, 1932), 58 (Taylor's influence); John Taylor, An Enquiry into the Principles and Tendency of Certain Public Measures (Philadelphia, 1794), 2 (quotations), 46, and 82-83; and Taylor, A Definition of Parties; or the Political Effects of the Paper System Considered (Philadelphia, 1794), 3. Other eminent Virginians shared Taylor's notion that new limitations on federal power must be added during the government's first years. Richard Henry Lee to John Jones, October 15, 1788, in Ballagh, ed., Letters of Richard Henry Lee, II, 478-79.

(13) John Taylor to Daniel Carroll Brent, October 9, 1796, in William E. Dodd, ed., "Letters of John Taylor, of Caroline County, Virginia," The John P. Branch Historical Papers of Randolph-Macon College, II (June 1908), 253-353, at 260-68 (Adams at 267). For an intimation of Taylor's "befuddled" opposition to Federalism see Taylor, Enquiry, 47, where he wrote, "And the want of simplicity in politics, is ever a badge of design."

(14) It thus is incorrect to say that the Republicans, unlike the later Democrats and Nullifiers, omitted fears of northern antislavery from their states' rights edifice. John Taylor, An Argument Respecting the Constitutionality of the Carriage Tax ... (Richmond, [1795]), 33n17 (quotation), and 20; and James Roger Sharp, American Politics in the Early Republic: The New Nation in Crisis (New Haven, Conn., and London, 1993), 206-7.

(15) Taylor, Argument Respecting the Constitutionality of the Carriage Tax, 28 and 4.

(16) Ibid., 3.

(17) Taylor, Enquiry, 64 and 65.

(18) Thomas Jefferson to John Taylor, June 1, 1798, in Ford, ed., Works, VIII, 430-33; and Thomas Jefferson to John Taylor, November 26, 1798, ibid., 479-83 (quoted phrase on p. 480).

(19) John Taylor to James Monroe, March 25, 1798, in Dodd, ed., "Letters of John Taylor," 268-70, at 269.

(20) Taylor, Definition, 5-6, 15.

(22) Taylor, Enquiry, 54-55; John Taylor to Thomas Jefferson, [1798], in Dodd, ed., "Letters of John Taylor," 277-78 (dictator); John Taylor to Thomas Jefferson, June 25, 1798, ibid., 271-76, at 272-73 ("What are checks and balances, but party and faction?" "Did the British people ever gain by a change of ministry?"); Taylor's support for state legislatures was shared by many prominent Virginians. See Andrew Moore to Col. Robert Gamble, March 9, 1790, Claiborne Family Papers.

(22) Taylor, Enquiry; 46-47; John Taylor to Thomas Jefferson, June 25, 1798, in Dodd, ed., "Letters of John Taylor," 271-76 at 274; Taylor, Enquiry, 43; Edmund Pendleton, "Address to the Citizens of Caroline," November 1798, in David John Mays, ed., The Letters and Papers of Edmund Pendleton, 1734-1803 (2 vols.; Charlottesville, 1967), II, 650-54, at 652; and Edmund Pendleton, "An Address ... on the Present State of Our Country," February 20, 1799, ibid., 658-66, at 659.

(23) Taylor, Enquiry, 54.

(24) The Virginia Report of 1799-1800 Touching the Alien and Sedition Laws, Together with the Virginia Resolutions of December 21, 1798, Including the Debate and Proceedings Thereon in the House of Delegates of Virginia ... (1850; reprinted New York, 1970), xiii; and Stanley Elkins and Eric McKitrick, Age of Federalism, 724.

(25) Jefferson's "famous letter to Taylor" written on June 1, 1798, is cited above in note 18. Thomas Jefferson to Archibald Hamilton Rowan, September 26, 1798, in Ford, ed., Works, VIII, 447-48; Thomas Jefferson to James Lewis Jr., May 9, 1798, in Albert Ellery Bergh et al., eds., The Writings of Thomas Jefferson (20 vols. in 10, Washington, 1907), X, 36-38, at 37; and Thomas Jefferson to John Tyler, November 26, 1798, in Ford, ed., Works, VIII, 479-83, at 480; and Jefferson, "Draft of Instructions to the Virginia Delegates in the Continental Congress" (MS text of A Summary View, &c.) [July 1774], and Bland, Inquiry into the Rights of the British Colonies, both cited in note 11 above. For discussion of the Virginia constitutional tradition as it developed in the 1760s and 1770s see Gutzman, "Old Dominion, New Republic." 7-88.

(26) Thomas Jefferson to James Madison, December 16, 1796, in Ford, ed., Works, V, 225-30, at 226; Jesse T. Carpenter, The South as a Conscious Minority, 1789-1861 (1930; reprinted Columbia, S.C., 1990), 35 (quotations from Jefferson's first inaugural); Lee Cheek, "Calhoun and Popular Rule: The Political Theory of the Disquisition and Discourse" (Ph.D. dissertation, Catholic University of America, 1999); Thomas Jefferson to Destutt de Tracy, January 26, 1811, Ford, ed., Works, XI, 181-89; and Thomas Jefferson to John Cartwright, June 5, 1824, Bergh et al., eds., Writings, XVI, 42-52, at 43-44 (on Anglo-Saxon analogy).

(27) Thomas Jefferson to Stephens Thompson Mason [sic], October 11, 1798, in Ford, ed., Works, VIII, 449-51 (first two quotations on p. 450); Thomas Jefferson to James Madison, April 26, 1798, ibid., 411-13, at 412 (on the sedition bill); and Thomas Jefferson to James Madison, April 5, 1798, ibid., 397-99, at 397.

(28) David N. Mayer, The Constitutional Thought of Thomas Jefferson (Charlottesville, 1994), 199-200. Jefferson's draft of the Kentucky Resolutions is at Ford, ed., Works, VIII, 458-79.

(29) Thomas Jefferson, Notes on the State of Virginia (1785), edited by William Peden (Chapel Hill and London, 1954; 2d ed., 1982), "Query XIII: Constitution," 110-29 (quotations at 123-24 and 129).

(30) Thomas Jefferson, "Kentucky Resolutions" (draft), Ford, ed., Works, VIII, 458-77, column 2 (second and third resolutions at 462-63, 463-65; quotations at 463 and 465). Other than in the "Memorial and Remonstrance ..."--which is printed in William T. Hutchinson, et al., eds., The Papers of James Madison (17 vols.; Chicago and Charlottesville, 1973-), VIII, 298-306--Madison made the same alarmist claim in James Madison to James Monroe, June 21, 1785, ibid., 306-8, at 306. For fuller elaboration of this point see Gutzman, "Old Dominion, New Republic," 89-181.

(31) The draft fourth, fifth, and sixth resolutions are at Ford, ed., Works, VIII, 465-66, 466-67, and 467-68.

(32) The draft seventh resolution appears ibid., 468-69 (all quotations on p. 469).

(33) The draft eighth resolution appears ibid., 470-77 (quotations on p. 470).

(34) Ibid. (quotations on pp. 470-71).

(35) For Randolph in 1793, see text at note 12 above.

(36) See the Editor's Note introducing Koch and Ammon, "Virginia and Kentucky Resolutions," 145-46; Dumas Malone's distinction, echoing Hubert Humphrey's famous speech at the 1948 Democratic National Convention, between "state rights" and "human rights," in Malone, Jefferson and His Time, III, 395-96; and Peterson, Thomas Jefferson and the New Nation, 615. Two pages earlier, Peterson admitted that "the logic of the compact theory" was "virtually unchallenged at the time." Ibid., 613.

(37) H. Trevor Colbourn, The Lamp of Experience: Whig History and the Intellectual Origins of the American Revolution (2d ed.; Indianapolis, 1998), xix; and Sharp, American Politics in the Early Republic, 201.

(38) Koch and Ammon, "Virginia and Kentucky Resolutions," 150n12; Thomas Jefferson to James Madison, November 17, 1798, in Ford, ed., Works, VIII, 456-57; Sharp, American Politics in the Early Republic, 189; and Kevin R. [Constantine] Gutzman, "A Troublesome Legacy: James Madison and `The Principles of '98'," Journal of the Early Republic, XV (Winter 1995), 569-89.

(39) Thomas Jefferson to Wilson Cary Nicholas, November 29, 1798, in Ford, ed., Works, VIII, 483; and Sharp, American Politics in the Early Republic, 197.

(40) Thomas Jefferson to John Taylor, November 26, 1798, in Ford, ed., Works, VIII, 479-83; and Thomas Jefferson to Samuel Smith, August 22, 1798, ibid., 443-44. Jefferson was typical of Virginia's elite in thinking unanimity natural. See Richard Henry Lee to Richard Bland Lee, February 5, 1794, in Ballagh, ed., Letters of Richard Henry Lee, II, 563-75, at 564; and Edmund Pendleton, "Address to the Citizens of Caroline," 651.

(41) Virginia Report of 1799-1800, p. 157 (House vote), and p. 158 (Senate vote).

(42) This and the following two paragraphs are based on Speech of John Taylor, December 13, 1798, ibid., 24-29.

(43) Ibid., 25.

(44) Ibid., 25 and 27.

(45) Speech of William Ruffin, December 14, 1798, ibid., 38-39.

(46) Speech of John Mercer, December 15, 1798, ibid., 40 and 41.

(47) The Federalist 28, pp. 176-80, at 179-80.

(48) Speech of John Mercer, December 15, 1798, Virginia Report of 1799-1800, pp. 40-50 (quotations at 44).

(49) Speech of James Barbour, December 17, 1798, ibid., 54-70 (quotations on pp. 55, 56, and 57). For Barbour's background see Simms, Life of John Taylor, 81.

(50) Speech of Edmund Brooke, December 18, 1798, Virginia Report of 1799-1800, pp. 79-81.

(51) Speech of John Pope, December 19, 1798, ibid., 82-83 (first and second quotations at 82); Speech of William Daniel Jr., December 19, 1798, ibid., 83-98.

(52) Speech of William Daniel Jr., December 19, 1798, Virginia Report of 1799-1800, pp. 83-98 (quoted phrases on p. 97). (Contrast Koch and Ammon, "Virginia and Kentucky Resolutions.")

(53) Speech of General Henry Lee, December 20, 1798, ibid., 103-9 (quotations on p. 104); Speech of Peter Johnston, December 20, 1798, ibid., 109-11 (quotations on p. 109); and Speech of James Barbour, December 17, 1798, ibid., 56.

(54) Speech of John Taylor, December 20, 1798, ibid., 111-22 (quotation at 112).

(55) Ibid. (quotation on p. 114; Montesquieuan point on p. 115).

(56) Ibid. (quotation on pp. 115-16).

(57) Ibid.

(58) "Report of 1800," Papers of James Madison, XVII, 307-50, at 308-9.

(59) Speech of William Branch Giles, December 21, 1798, Virginia Report of 1799-1800, pp. 143-48 (esp. p. 144).

(60) Ibid., 146-48 (quotation at 146).

(61) Speech of John Taylor, December 21, 1798, ibid., 148-50 (quoted phrases on p. 150); Speech of Henry Lee, December 21, 1798, ibid., 150; and Speech of Wilson Cary Nicholas, December 21, 1798, ibid., 150-51.

(62) John Taylor to Thomas Jefferson, [1798], in Dodd, ed., "Letters of John Taylor," 277-78 (quotation on p. 277).

(63) Thomas Jefferson to Peregrine Fitzhugh, February 23, 1798, in Bergh et al., eds., Writings, X, 1-4 (first two quoted phrases on p. 3); Carpenter, South as a Conscious Minority, 36-37 (St. George Tucker); and Thomas Jefferson to Elbridge Gerry, January 26, 1799, in Bergh et al., eds., Writings, X, 74-86 (last quotation on pp. 76-77).

MR. GUTZMAN is an assistant professor of history at John Jay College, The City University of New York.