Kentucky and Virginia Resolutions: Jefferson's Secret Nullification Draft

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In 1798, during the Quasi-War with France, John Adams's Federalist government passed the Alien and Sedition Acts, letting the president deport noncitizens without due process and jailing editors for false, scandalous or malicious writing against the government. Vice President Thomas Jefferson and James Madison answered with the compact theory, which held that sovereign states created the Constitution and could judge when the federal government exceeded its delegated powers. Jefferson secretly passed his draft to John Breckinridge, and the Kentucky Resolutions declared unconstitutional acts void and of no force, with a 1799 follow-up naming nullification as the rightful remedy. Madison's Virginia Resolutions avoided that word and called instead for interposition, which he saw as collective action by several states.

Seven states formally rejected the resolutions, three disapproved without a formal reply, four ignored them, and none agreed; New Hampshire warned they could excite insurrection. George Washington feared disunion, and Alexander Hamilton suggested marching troops into Virginia to test its resistance. Madison's Report of 1800 tried to recast interposition as a way to rally opinion, yet still claimed states could judge in extreme cases. The theory then traveled: New England invoked it against the Embargo Act and the War of 1812, John C. Calhoun's South Carolina nullified the Tariff of Abominations, northern states passed personal liberty laws against the Fugitive Slave Act of 1850, and southern legislatures cited interposition against Brown v. Board of Education until Cooper v. Aaron in 1958.

• Kentucky added a caveat that it would still obey federal laws while protesting them.
• Madison deliberately struck the words void and of no force from his Virginia draft.
• In his 80s, Madison condemned South Carolina's nullification as a fatal inlet to anarchy.
• Andrew Jackson's proclamation threatened military force to stop South Carolina.
• Historians such as Ron Chernow and Merrill Peterson describe the resolutions as a recipe for disunion.