Virginia Resolutions (December 24, 1798)

Updated: April 27, 2015

Drafted by James Madison and adopted by the Virginia General Assembly on December 24, 1798, the Virginia Resolutions asserted that, collectively, the states have the right to interpose when the federal government exceeds its constitutional authority.

Between June 18 and July 25, 1798, the fifth United States Congress enacted four bills collectively known as the Alien and Sedition Acts. Introduced and supported by members of the Federalist Party, the legislation was designed to stifle criticism of President John Adams's foreign policy related to France and Great Britain. The Alien Acts authorized the president to deport immigrants that he believed to be dangerous, and they empowered the government to imprison and deport, without cause, any male immigrants from countries at war with the United States.

The Sedition Act made it illegal for any persons (citizens or aliens) to "combine or conspire together, with intent to oppose any measure or measures of the government of the United States" or for anyone to "write, print, utter, or publish . . . any false, scandalous and malicious writing or writings against the government of the United States . . . ."

Members of the Democratic-Republican Party, led by United States Vice-President Thomas Jefferson (author of the Declaration of Independence) and James Madison (father of the United States Constitution), viewed these acts to be in violation of the United States Constitution. At that time, the doctrine of judicial review had yet to be established, thus the fledgling nation had no established protocol for challenging the constitutionality of legislation enacted by Congress. Unable to find a satisfactory federal solution for addressing their concerns about the Alien and Sedition Acts, Jefferson and Madison turned to the states.

On July 3, 1798, Jefferson visited Madison at his plantation estate in Virginia. There, the two luminaries undoubtedly discussed a plan for addressing the Alien and Sedition Acts. When Madison visited Jefferson at Monticello in October, the vice-president probably shared an initial draft of what would become the Kentucky Resolutions. On November 17, Jefferson sent Madison his final draft. Possibly using Jefferson's document as a starting point, Madison crafted his initial version of what would become the Virginia Resolutions.

Jefferson asserted that "the several states composing the US. of America are not united on the principle of unlimited submission to their general government." Instead, Jefferson argued, the states "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." Jefferson concluded "that whensoever the General government assumes undelegated powers, its acts are unauthoritative, void, & of no force" (emphasis added). He went on to add that each state (emphasis added) "has an equal right to judge for itself," (emphasis added) "as of the mode & measure of redress."

Madison's proposed resolutions were more moderate. He agreed with Jefferson that the Alien and Sedition Acts were unconstitutional, but unlike his colleague, Madison was not prepared to argue that individual states were authorized to declare federal legislation "void & of no force."

Instead, Madison asserted that "in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the (Constitution), the states (emphasis added) . . .  have the right, and are in duty bound, to interpose" (emphasis added) "for arresting the progress of the evil."

For Madison, interposition was a collective option available to the community of states. When the federal government exceeded its constitutional authority, as Madison believed it had with the Alien and Sedition Acts, the states had the right to act in concert to remedy the situation. Among the tools at their disposal, the states could unite to register protests, form caucuses in Congress, or ultimately call for conventions to amend the Constitution. Missing from Madison's draft was any suggestion that individual states had the right or authority to nullify unilaterally federal legislation.

After drafting his resolutions, Madison passed them on to Wilson Cary Nicholas, a Democratic-Republican member of the Virginia House of Delegates. At the request of Jefferson, Nicholas added language stating that the Alien and Sedition Acts were "not law, but utterly null, void and of no force or effect," before passing them on to John Taylor.  Taylor introduced the proposed resolutions in the Virginia General Assembly on December 10, 1798. During the course of the eight-day consideration of the resolutions, the members removed Jefferson's null and void addition, instead adopting Madison's more moderate interposition stance.

The House of Delegates adopted Madison's version of the Virginia Resolutions by a vote of one hundred to sixty-three on December 21, 1798. Three days later, the Senate concurred by a vote of fourteen to three.

The final document consisted of eight relatively short resolutions.

1.      The first resolution affirmed Virginia's "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."

2.      The second resolution declared Virginia's "warm attachment to the Union of the States," as well as its resolve "to watch over and oppose every infraction of those principles which constitute the only basis of that Union."

3.      The third resolution pronounced that Virginia "views the powers of the federal government, as limited by the plain sense and intention of the (Constitution), and that in case of a . . . dangerous exercise of other powers, not granted by the (Constitution), "the states have the right, to interpose for arresting the progress of . . . evil, and for maintaining . . . the authorities, rights and liberties" of the state.

4.      The fourth resolution expressed Virginia's "deep regret, that a spirit has been manifested by the federal government, to enlarge its powers by forced constructions of the (Constitution) so as to consolidate the states by degrees, into one sovereignty."

5.      The fifth resolution voiced Virginia's "protest against the 'Alien and Sedition Acts,'" noting that the Alien Acts "exercises a power no where delegated to the federal government," and that the Sedition Act "exercises a power not delegated by the constitution, but on the contrary, expressly and positively forbidden by one of the amendments" to the Constitution.

6.      The sixth resolution noted that when Virginia ratified the federal Constitution, it expressly declared, "the Liberty of Conscience and of the Press cannot be cancelled, abridged, restrained, or modified by any authority of the United States." Because Virginia championed the adoption of the first amendment (which guaranteed freedom of the press), it would be inconsistent for the state to remain indifferent to the dangerous precedent established by the Sedition Act.

7.      The seventh resolution reaffirmed Virginia's "most sincere affection for their brethren of the other states" and went on to appeal to the other states to join in its protest against the Alien and Sedition Acts.

8.      The eighth resolution instructed the governor of Virginia to transmit a copy of the Virginia Resolutions to the other states and to the senators and representatives representing Virginia in Congress.

Considered in their totality, the Virginia Resolutions were an example of one state interposing by offering an opinion on the constitutionality of the Alien and Sedition Acts and then requesting the other states in the Union to support their position. Unfortunately, for Madison and Virginia, the Virginia Resolutions were not considered on their own merit because they were unfairly joined with the more radical Kentucky Resolutions.

Both sets of resolutions were printed and forwarded to Congress and each of the other states.

As expected, they received little support from the Federalists who still controlled the national government. More discouraging to the Democratic-Republicans was the reaction of the other states. In February 1799, Delaware's legislature was the first to reply, stating that it considered "the Resolutions from the State of Kentucky [Virginia], as a very unjustifiable interference with the general government and constituted authorities of the United States, and of dangerous tendencies, and therefore not a fit subject for the further consideration of the General Assembly." February and March brought similar negative reactions from Rhode Island, Massachusetts, and New York. In May, Connecticut and New Hampshire expressed their disapproval. Vermont did likewise in October.  Maryland, Pennsylvania, and New Jersey did not send replies, but they did pass declarations against the resolutions. Thus, ten of the other fourteen states expressed their disapproval, and surprisingly, no southern state supported or even took a position on the resolutions.

Because they failed to rally support from the other states, the immediate impact of the Virginia (and Kentucky) Resolutions on the nation's history was minimal. During the general election of 1800, Jefferson and the Democratic-Republicans made the unpopular Alien and Sedition Acts a major campaign issue and emerged victorious. Once in power, they allowed the acts to expire.  Nonetheless, the Resolutions did have a major impact on American history three decades later.

During the Nullification Crisis of 1833, John C. Calhoun and other South Carolina leaders brought the nation to the brink of civil war when they used the language of the Resolutions to invoke the doctrine of nullification in protest of the Tariffs of 1828 and 1832. Jefferson had been dead for nearly a decade, but James Madison was still alive and able to voice his concerns about the doctrine of nullification. In a letter to Edward Coles, dated August 29, 1834, Madison wrote, "Nullification has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure." He reinforced those views four months later when he publicly rebuked nullifiers in his Notes, On Nullification, published in December 1834.

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"Virginia Resolutions," Ohio Civil War Central, 2021, Ohio Civil War Central. 20 Sep 2021 <http://www.ohiocivilwarcentral.com/entry.php?rec=1519>

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"Virginia Resolutions." (2021) In Ohio Civil War Central, Retrieved September 20, 2021, from Ohio Civil War Central: http://www.ohiocivilwarcentral.com/entry.php?rec=1519

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