Kentucky Resolutions of 1798: Jefferson’s Authorship, Arguments, and Legacy

The Kentucky Resolutions of 1798 were two political declarations, secretly drafted by Vice President Thomas Jefferson and adopted by the Kentucky legislature, that denounced the federal Alien and Sedition Acts as unconstitutional and argued that the states, as parties to the constitutional compact, had the authority to judge and resist federal overreach. Together with James Madison’s companion Virginia Resolutions, they became the founding text of the American states’ rights tradition and introduced the doctrine of nullification into constitutional debate.¹

What Provoked the Resolutions

In the summer of 1798, with the United States in an undeclared naval conflict with France, the Federalist-controlled Congress passed four laws expanding federal power over immigrants and political speech. The Naturalization Act stretched the residency requirement for citizenship from five to fourteen years. The Alien Friends Act let the president deport any non-citizen deemed “dangerous to the peace and safety of the United States,” with no hearing or appeal.² The Alien Enemies Act authorized the apprehension and removal of nationals of a hostile power during a declared war; it had bipartisan support and remains on the books.³

The fourth law was the one that most alarmed Jefferson and his Democratic-Republican allies. The Sedition Act of July 14, 1798, made it a crime to “write, print, utter or publish” anything “false, scandalous and malicious” against the federal government, Congress, or the president, with penalties up to a $2,000 fine and two years’ imprisonment.² Federalist prosecutors used it almost exclusively against editors of opposition newspapers and other critics of the Adams administration. At least twenty-six people were prosecuted between 1798 and 1801, and ten were convicted.⁴

Jefferson’s Secret Authorship

Jefferson wrote the resolutions in October 1798. He worked in secret because he feared being charged with sedition himself for publicly challenging acts of Congress while serving as Vice President.¹ Only a small circle of associates knew of his role. John Breckinridge, a Kentucky legislator, carried the text to Frankfort and introduced it in the Kentucky House of Representatives on November 8, 1798.⁵

Before the vote, the legislature made one consequential change: it struck Jefferson’s explicit use of the word “nullification.” His original draft had said that “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy,” and that language was removed.¹ Even softened, the resolutions passed the House with one dissenting vote and the Senate unanimously. Governor James Garrard signed them on November 13, 1798.⁵

Jefferson’s authorship stayed hidden for years. John Taylor of Caroline formally identified both Jefferson and Madison as the authors of the Kentucky and Virginia Resolutions in his 1814 work, An Inquiry into the Principles and Policy of the Government of the United States.¹

What the Resolutions Actually Argued

Across nine resolutions, Jefferson built a theory of strictly limited federal power that drew together compact theory, enumerated powers, free expression, and due process.

The Compact Among Sovereign States

Jefferson’s foundational claim was that the Constitution is not a grant of power from the American people as a whole but a compact among sovereign states. Those states delegated only specific, enumerated powers to the federal government; everything else remained with the states or the people, the principle later written into the Tenth Amendment.⁶ Under this reading, the federal government is the agent of the states, and when it “assumes undelegated powers, its acts are unauthoritative, void, and of no force.”¹

Nullification as the “Rightful Remedy”

If the states were the parties to the compact, Jefferson reasoned, each state had “an equal right to judge for itself” whether the compact had been violated and what to do about it.⁷ His draft called nullification, meaning the state’s voiding of an unauthorized federal law within its borders, the “rightful remedy” for federal overreach. Even after the Kentucky legislature softened that word, the logic remained: because no power over religion, speech, or the press had been granted to the federal government, the Alien and Sedition Acts were “altogether void and of no force.”⁶

Speech, Press, and Due Process

Jefferson’s attack on the Sedition Act was indirect but sweeping. Rather than building a First Amendment case alone, he argued that the federal government simply had no authority to regulate expression. “Libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals.”⁸ On the Alien Act, he argued that letting the president deport people on suspicion alone, without a trial, counsel, or the chance to confront witnesses, transferred judicial power to the executive in violation of the Constitution.⁶ The resolutions also warned that broad readings of the “necessary and proper” and “general welfare” clauses would erase any real limit on federal authority.

How Madison’s Virginia Resolutions Differed

The Virginia legislature adopted Madison’s companion resolutions on December 24, 1798.⁹ They shared Jefferson’s compact-theory premise and his target, but they used different vocabulary and were, by scholarly accounts, more temperate. Madison spoke of “interposition” rather than nullification. He wrote that the states were “duty bound, to interpose” when the federal government engaged in a “deliberate, palpable and dangerous exercise” of powers not granted, and he deliberately left the “modes” of interposition vague so that other states could decide how to join Virginia.¹

Jefferson’s Kentucky Resolutions were more strident, concluding flatly that the Alien and Sedition Acts were unconstitutional and “null and void.”⁹ The gap between interposition as collective protest and nullification as a single state’s voiding of federal law would define constitutional argument for the next sixty years.

The Response From Other States

Kentucky and Virginia sent their resolutions to the other fourteen state legislatures hoping for endorsement. None endorsed the core doctrine. Ten states expressed outright disapproval, and four made no response at all.¹ The opposing states insisted that constitutional interpretation belonged to the federal courts, not state legislatures. Massachusetts said this authority was “exclusively vested by the people in the judicial courts of the United States” and declared the Alien and Sedition Acts “not only constitutional; but expedient and necessary.”¹⁰

A few states showed partial sympathy. Tennessee called for repeal of the Alien and Sedition Acts, and Georgia expressed hope that Congress would repeal them, but neither accepted the doctrine of state interposition.¹⁰ The disagreement traced back to a basic constitutional divide: the responding states saw the Constitution as a compact among the people of the United States, while Kentucky and Virginia saw it as a compact among the states themselves.

The Kentucky Resolutions of 1799

Rather than retreat, Kentucky escalated. On December 3, 1799, the legislature passed a second set of resolutions that restored the word Jefferson’s draft had used and the first legislature had cut. The 1799 text declared that “a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy.” It also sharpened the rhetoric, describing the failure to resist unconstitutional federal acts as “highly criminal” and labeling federal claims of exclusive interpretive authority as “despotism.”¹¹ Authorship of the 1799 resolutions remains uncertain.¹

In Virginia, Madison answered the condemnations from other states with his Report of 1800, issued on January 7, 1800. The Report refined interposition, reserving it for “deliberate, palpable and dangerous” breaches of the Constitution and warning against hasty use on “doubtful and inferior occasions.”¹² Madison also pushed back against the claim that federal courts were the sole final expositor of the Constitution, arguing that while courts are the final authority for the other branches, they cannot be the final authority in relation to the “sovereign parties to the constitutional compact.”

Political Fallout and the End of the Sedition Act

The resolutions failed as a legal brief but succeeded as politics. The Sedition Act prosecutions created martyrs for the Democratic-Republican press and gave the Federalists an unpopular record to defend. Public backlash fed into the party’s defeat in the election of 1800, which carried Jefferson to the presidency.³ The Sedition Act expired on March 3, 1801, the last day of John Adams’s term, as its own text had specified.² Jefferson, once in office, pardoned everyone convicted under it and affirmed in his inaugural address “the right of Americans to think freely and to speak and write what they think.”¹³

The Long Legacy

The ideas Jefferson planted in 1798 kept resurfacing, often in hands he would not have chosen.

The Hartford Convention

The first group to borrow the framework was the Federalist Party itself. At the Hartford Convention in December 1814, New England Federalists opposed to the War of 1812 drew on compact theory to argue that states could judge the constitutionality of federal legislation. The Convention ended up taking a moderate path, proposing constitutional amendments instead of embracing nullification or secession, and its final report recommended against disunion.¹⁴

The Nullification Crisis

The sharpest use of Jefferson’s doctrine came in 1832–1833. Senator John C. Calhoun built directly on compact theory, arguing that the Constitution was a compact among “free, independent, and sovereign communities” and that a state could “arrest the execution” of unauthorized federal acts within its borders. On November 24, 1832, a South Carolina convention declared the federal Tariffs of 1828 and 1832 “null, void, and no law” and threatened secession if the federal government used force. President Andrew Jackson answered on December 10, 1832, calling nullification “incompatible with the existence of the Union” and warning that “disunion by armed force is treason.” A compromise tariff and the Force Bill resolved the standoff in March 1833.¹⁵

Madison’s Objections

Madison, still living, worked to pull his own 1798 resolutions away from Calhoun’s reading. In notes written in December 1834, he called single-state nullification claimed as a constitutional right while remaining in the Union a “contradiction in terms.” He stressed that the 1798 Virginia Resolutions had used “States” in the plural, meaning interposition as a collective act by co-parties to the compact, not the “solitary or separate” act of one state. He accused the nullifiers of cherry-picking his text, and he rejected the claim that Jefferson had endorsed unilateral nullification, saying Jefferson’s “rightful remedy” in an extreme case was separation from the Union, not armed resistance from within it.¹⁶

Northern Resistance to the Fugitive Slave Act

Compact theory was not only a Southern tool. After the Fugitive Slave Act of 1850 required federal officials in all states to help return escaped slaves, Northern legislatures passed “personal liberty laws” directing state officers and courts not to cooperate with slave catchers.¹⁷ The Wisconsin Supreme Court went furthest, declaring the Fugitive Slave Act unconstitutional and issuing writs of habeas corpus to free the abolitionist Sherman Booth from federal custody. A mass meeting in Milwaukee quoted the Virginia and Kentucky Resolutions directly, invoking each state’s “equal right to judge for itself as well of infractions as of the mode and manner of redress.”¹⁸ The Supreme Court rejected Wisconsin’s position in Ableman v. Booth (1859). Chief Justice Roger Taney, writing for a unanimous Court, held that no state court had authority to issue writs of habeas corpus for federal prisoners or to nullify federal law, warning that otherwise the federal government “would soon become one thing in one State and another thing in another.”¹⁹

Judicial Repudiation

Courts have consistently rejected nullification. Jackson’s 1832 proclamation, Ableman v. Booth in 1859, and the outcome of the Civil War itself all weighed against the theory. The Supreme Court’s most forceful rejection came in Cooper v. Aaron (1958), arising from Arkansas’s resistance to Brown v. Board of Education, where the Court ruled unanimously that constitutional rights cannot be “nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes.”²⁰ The Sedition Act of 1798 was never tested in the Supreme Court while in force, but the Court effectively repudiated it in New York Times Co. v. Sullivan (1964), observing that “the attack upon its validity has carried the day in the court of history.”²¹

Modern Echoes

Full nullification remains outside constitutional law, but the underlying tension has not vanished. The Supreme Court’s “anti-commandeering doctrine,” established in New York v. United States (1992) and extended in Printz v. United States (1997), holds that the federal government may not compel state governments to implement or administer federal regulatory programs. The reasoning tracks the Tenth Amendment logic Jefferson invoked in 1798, though the modern Court has not drawn explicit lines back to the Kentucky Resolutions. In Murphy v. NCAA (2018), the Court strengthened the doctrine further, striking down a federal law that prohibited states from authorizing sports gambling.²² Less formally, state legislatures since the early 2000s have passed laws declining to cooperate with federal measures including the Patriot Act, the Real ID Act, and the Affordable Care Act — a practice scholars have called “uncooperative federalism.”²³ These moves stop short of the explicit nullification Jefferson championed, but they draw on the same friction between state sovereignty and federal supremacy that the Kentucky Resolutions first forced into the open.

1
Thomas Jefferson’s Monticello. Kentucky and Virginia Resolutions
2
National Archives. Alien and Sedition Acts
3
Bill of Rights Institute. The Alien and Sedition Acts
4
Federal Judicial Center. The Sedition Act Trials
5
Kentucky Legislative Research Commission. Legislative Moments
6
Online Library of Liberty. Kentucky Resolutions, Jefferson’s Draft
7
Avalon Project, Yale Law School. Draft of the Kentucky Resolutions
8
University of Chicago Press. Amendment I (Speech and Press)
9
First Amendment Encyclopedia. Virginia and Kentucky Resolutions of 1798
10
Teaching American History. Response to the Virginia Resolutions
11
Avalon Project, Yale Law School. Kentucky Resolutions of 1799
12
Teaching American History. Report of 1800
13
Annenberg Classroom. Sedition Act 1798 Expires
14
Bill of Rights Institute. The Hartford Convention
15
Encyclopaedia Britannica. Nullification Crisis
16
University of Virginia Press. Madison’s Notes on Nullification
17
National Park Service. The Bill of Rights and the Fugitive Slave Laws
18
Virginia Law Review. Ableman v. Booth and the Virginia and Kentucky Resolutions
19
Federal Judicial Center. Ableman v. Booth
20
National Constitution Center. Looking Back: Nullification in American History
21
First Amendment Encyclopedia. Sedition Act of 1798
22
Cornell Law Institute. Anti-Commandeering Doctrine
23
Cambridge University Press. Modern Interposition by States and Nullification