Notes on KR Constantine Gutzman's "Virginia and Kentucky Resolutions Reconsidered"

KR Constantine Gutzman, "The Virginia and Kentucky Resolutions Reconsidered: 'An Appeal to the Real Laws of Our Country'". Journal of Southern History 66:3, Aug. 2000. 473-96

Professor Gutzman wrote an excellent article in the Journal of Southern History. He shows the development of the Virgina and Kentucky Resolutions of 1798, which Jefferson (Kentucky) and Madison (Virginia) authored in light of Virginia's historical and philosophical ideas about states' rights and the compact nature of the Constitution that go back to the Richmond Ratification Convention. John Taylor, who oversaw the adoption of the Virginia Resolution, was a former anti-Federalist and fascinating states' rights advocate who deserves attention.

Gutzman starts out by noting that Edmund Randolph argued in a debate with Patrick Henry in the Richmond Ratification Convention (ratification of the US Constitution) that "the Constitution's 'necessary and proper' and 'general welfare' clauses would not grant new powers to the federal government because '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.

"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.

"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...'

In 1790 the Virginia General Assembly passed a resolution calling "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.'"

"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 equal footing. Virginia, not America, remained the primary unit of government; the United States government a convenience."

"...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.'"

"(Taylor's) 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."

Taylor argued that the states should have the power to override federal legislation. In his argument for repeal of the carriage tax in 1795 Taylor stated:

"If only 'those designed to be restrained,' for example, federal judges, could enforce the federal Constitution, 'America possess only the effigy of a Constitution.'"

Smart guy.

"In his earlier pamphlet, "An Enquiry into the Principles and Tendency of Certain Public Measures" 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 State Supreme Court to act."

"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 Yankees...

"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.

"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...He would prefer that power be left in the people, not offset against other power."

"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...'...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.

Unlike Taylor, Jefferson favored the general government system that the constitution created. Jefferson was not an anti-Federalist.

The Kentucky Resolutions, which were not known to be authored by Jefferson until a decade after the fact, says that "'the States retain as complete authority as possible over their own citizens.'" The Constitution was limited to "special purposes". "When the federal government exceeded its mandate, its acts were 'unauthoritative, void and of no force..."

In the Second Resolution Jefferson argued that the Sedition Act was unconstitutional hence void. The Third Resolution applied the language of the Tenth Amendment and the First Amendment to the Sedition Act.

The Fourth resolution held that the Alien Friends Act was void on Tenth Amendment grounds. The Fifth and Sixth Resolutions applied the tenth amendment and Article V of the Constitution as well as Article III of the federal Constitution to the Alien and Sedition Acts.

In the Seventh Resolution Jefferson wrote that there was a danger of "the general government" construing 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."

Gutzman notes that Jefferson argued that "those two clauses were meant to be subsidiary only to the execution of limited powers" and 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."

Interestingly, Jefferson did the reverse by purchasing Louisiana. Perhaps there is something about power that leads to an expansive definition of authority.

The eighth resolution was the longest and most important. A committee should be appointed to correspond with other states and Kentucky viewed union "for specified national purposes and particularly...those specified in the late federal compact, 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. "Consolidation of the states' powers in one general government 'is not for the peace, happiness or prosperity of these States 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."

A comparable resolution wasn't passed in the North because there were fewer Republicans and more Federalists.

The two resolutions were passed in 1798.

States are by definition more democratic than the federal government. Today, many counties have populations equal to or greater than the entire population of the United States in 1787, such as Queens, Los Angeles and Cook counties. Perhaps we should be thinking of county or even township rights. A single neighborhood in New York City might have the population of an entire state in the days of Jefferson and Taylor.

Have Congressmen become so much smarter that the elected representatives are equally capable of representing millions rather than thousands of representatives?