Founders History: The Kentucky Resolutions of 1798 To Save Our Country

The Founding Fathers Ignored What They Achieved and Suspended The First Amendment With Alien and Seditions Act.

November 1798 is a remarkable month in our country’s early history.  According to some, Jefferson wrote his second most important document in his career.  I had never heard of the Kentucky Resolution, passed into law on November 10th, 1798 and neither of Madison’s Virginia Resolution issued in December 1798.  While my recollection of my history classes are murky, I don’t think the responses to the Alien and Sedition Acts from the perspective of Jefferson and Madison’s contribution to the concept of nullification are that well known.  In 2024 we only think of the courts as a remedy that protects us when we lose our elections.  As we’ll see, many of the Founding Fathers recognized that the courts could be political tools.

We think of the Founding Fathers like figures in a museum, as though we are pausing in front of paintings and reading plaques of quaint history.  We don’t garner the realization that they were zesty, uproarious dudes and dudettes who had no compunction regarding mud slinging.  It should teach us why the concept of limiting the view of ideas on social media today is really just a tool to silence people.  According to James Callender in 1800, one of our presidents and Founding Fathers was a hermaphrodite! Callender was outraged over Adams passing the Alien and Sedition Acts:

hideous hermaphroditical character which has neither the force and firmness of a man, not the gentleness and sensibility of a woman.

The prankster in me almost titled this article “American’s First Hermaphrodite President”.

Liberty is not a gentile practice of theory for the lofty minded - it is a practical application of common sense and knowledge.  It’s a contact sport.  Liberty and the Republic that Jefferson, Madison, Adams, Dickinson and the other Founding Fathers envisioned are at odds with our ideas of a smooth transition of power from one party to another.  The absence of protest is an indicator to many that things are running as they should be.  We bow in honor of a self healing and self corrective system.  

The fractious, nasty early days of the 13 original states are far from our minds.  This aids the centrists and collectivists who shutter dissent.  What is not recognized is that the Founding Fathers themselves descended into bitter political battles. And seldom do we discuss how the Federalist party that controlled Congress and the presidency had no issue suspending the First Amendment and jailing dissenters. Yes, the men who created a unique form of government shoved the First Amendment aside to arrest their political opponents.   The Alien and Sedition Acts nearly ended the hard won achievements of the American Revolution and the Constitution, paid for with the blood of the American people. 

There is no system that automatically heals itself, there are only people adhering to principles, being honest and fulfilling their duty and roles.  Our system of liberty arises from those people taking action and enacting the ideals that preserve rights.  Otherwise things fall apart, and that is the reason why hero worship and waiting for the courts to decide on which aspects of liberty we retain is destroying our chances for maximizing our potential.

The Problem with Britain

We have to set the stage with the events leading up to the passage of the Alien and Sedition Acts, the responses by Jefferson and Madison with the Kentucky and Virginia Resolutions.

While the Treaty of France ended the war with Britain, Britain was a great threat to the United States.  Our alliance with France could not prevent the British from seizing American vessels, and by extension, American sailors who were then “pressed into service” in the British Navy.  While the Treaty also gave the United States great territory in the west, extending past Ohio, the British refused to give up the occupation of the military outposts of that territory.

In 1793 Britain went to war with France.  Washington wanted to maintain a position of neutrality and hoped to trade with both countries, but the Americans found that both European powers had no issue with seizing  American vessels when it suited their needs.  This was a rejection of the sovereign rights of the United States, yet our country was not in a position of strength to retaliate with force.  

The division among the Founding Fathers regarding a resolution was the start of a divide that would nearly tear the country apart.  The Jefferson-Republicans, led by Jefferson and James Madison, wanted to exact punishment using economic sanctions in the form of tariffs.  Washington, leading the Federalist party with Hamilton and Adams, desired a treaty with Britain and hoped to resolve the continued British occupation of the lands ceded to the US after the war.  Washington sent John Jay to negotiate with the British to seek out remedies.

Despite the United States' weak position against the naval power of England, Jay was able to gain concessions regarding the British relinquishing posts in the Northwest Territory, as well as payments for the seizure of American trade vessels.  The Americans agreed to offer Britain most favored nation trade status, as well as pay prior commercial debts owed to Britain incurred before the Revolutionary War.  Finally, the Jay Treaty agreed to restrict the size of American vessels trading in the British West Indies.

Many were outraged by the Jay Treaty, as it was seen as putting America’s sovereignty as secondary to Britain and trade.  The Jefferson-Republicans, the party who had voiced opposition to the Constitution as a power grab, claimed the treaty as a sign that the Federalists were subservient to Britain’s wishes.  The most favored nation trade status ended the ability to impose punishment on British trade practices with tariffs.  Washington, who was not satisfied with the Jay Treaty, refused to submit the details of the treaty to the House of Representatives after they threatened to block funding for the treaty.  This was the initial presidential claim of executive privilege.  

The treaty passed by narrow margins, and the American public was outraged by the terms.  

Does all of this sound familiar?  The pattern of behavior certainly should.

Yet the opposition to the treaty was far more vigorous than what we see today.  John Jay was burned in effigy at Fourth of July celebrations, and Alexander Hamilton was run off a public speaking engagement where, during his attempts to defend the treaty, he was pelted with stones and run off stage.  Madison and Jefferson-Republicans regarded the treaty as bringing the United States back into a colonial status.

The Trouble With France

France saw the Jay Treaty as a violation of the 1778 treaty it had made with the American colonists that supported the colonies’ quest for independence.  To Jefferson and many in the Jefferson-Republican party, France was considered a sister republic, a kindred spirit in the quest for liberty for its people.  However, France began to increase the seizure of the American merchant vessels, capturing up to 300.  That presented a problem for the Jefferson-Republicans because France was now acting just as the British had, and seizure of naval vessels and goods was a direct violation of America’s sovereignty.

France continued to escalate tensions when it refused to admit the new minister Charles Pinckney.  1797 marked the beginning of the Quasi War with France as a result.  John Adams was now president, and the issues with France were a threat to the stability of the United States.  Adams began the gradual build up of naval capability while trying to reach a resolution with the French.  His aim was to avoid war, and he sent a delegation to France for negotiations. 

The French demanded outrageous terms such as:

• A bribe of $250,000. 

• A loan of $12 million.

• An apology for President Adams's critical speech and the Jay Treaty.

• An apology for President Washington’s Farewell address where Washington spoke of avoiding foreign entanglements.

With continued seizure of vessels, the Federalists sought to place an embargo on France for punishment in 1798, which the Jefferson-Republicans sought to defeat.  The Jefferson-Republicans accused the Federalists of escalating the tensions for political gain in order to establish a monarchy in place of the newly formed republic.  The Federalists counter-charged with accusations that the Jefferson-Republicans sought to undermine the federal government by aiding France that acted like a foreign enemy.  To complicate matters further, the French declared that agents should be dispatched to the United States and aid in the defeat of the Federalists in elections.

Jefferson warned that the experiment in liberty was headed off course.  HIs strong words offended Washington, but in retrospect with the suspension of the First Amendment only a year later, this warning should have been heeded.

Our political situation is prodigiously changed since you left us. Instead of that noble love of liberty, and that republican government, which carried us triumphantly thro the dangers of the war, an Anglo-Monarchio-Aristocratic party has arisen. Their avowed object is to impose on us the substance, as they have already given us the form, of the British government. Nevertheless, the principal body of our citizens remain faithful to republican principles. All our proprietors of lands are friendly to those principles, as also the mass of men of talents. We have against us the Executive Power, the Judiciary Power, all the officers of government, all who are seeking offices, all timid men who prefer the calm of despotism to the tempestuous sea of liberty, the British merchants and the Americans who trade on British capitals, the speculators, persons interested in the bank and the public funds. Establishments invented with views of corruption, and to assimilate us to the British model in its corrupt parts.

Thomas Jefferson

To Stop France From Interfering With US Sovereignty, Suspend Attacks of The Government

Adams and the Federalists felt they had the duty to stop threats from France, and passed the Alien and Sedition Acts.  There are four laws in total:

• The Naturalization Act extended the residency requirement for citizenship from 5 to 14 years. The Jefferson-Republicans were impacted by this as new arrivals to the United States tended to vote for them.

• The Alien Enemies Act allowed the president to deport enemy aliens during wartime.

• The Alien Friends Act authorized the president to deport any aliens deemed dangerous, without due process.

• The Sedition Act criminalized the publication of "false, scandalous, and malicious writing" against the government. In particular this targeted the newspapers who supported the Jefferson-Republicans.  This Act ended free speech granted by the First Amendment.

Here is an excerpt from the Sedition Act.  As you read it, remember that these are the men who created the Constitution just a few years earlier, and who fought and won freedom from the largest super power of the 18th century.

And be it farther enacted, That if any person shall write, print, utter or publish, or shall cause or procure to be written, printed, uttered or published, or shall knowingly and willingly assist or aid in writing, printing, uttering or publishing any false, scandalous and malicious writing or writings against the government of the United States, or either house of the Congress of the United States, or the President of the United States, with intent to defame the said government, or either house of the said Congress, or the said President, or to bring them, or either of them, into contempt or disrepute; or to excite against them, or either or any of them, the hatred of the good people of the United States, or to stir up sedition within the United States, or to excite any unlawful combinations therein, for opposing or resisting any law of the United States, or any act of the President of the United States, done in pursuance of any such law, or of the powers in him vested by the constitution of the United States, or to resist, oppose, or defeat any such law or act, or to aid, encourage or abet any hostile designs of any foreign nation against United States, their people or government, then such person, being thereof convicted before any court of the United States having jurisdiction thereof, shall be punished by a fine not exceeding two thousand dollars, and by imprisonment not exceeding two years.

Sedition Act

This newspaper supported Jefferson-Republican positions and was used to target Adams positions.

If you speak out against the government, you are fined and jailed.  Signed into law by Adams, the man who initiated the break from Great Britain.  The same man who urged Jefferson to write the Declaration of Independence.  The Constitution had only been ratified 10 years earlier in 1788.  Two thousand dollars in 2024 dollars is $51,268.46.  Imagine being fined that amount for Tweeting out “Let’s Go Brandon”, or “Nancy Pelosi makes too much money with insider trading”.

A congressman was jailed using this law.  This was a tool used by the Federalists against the opposition party.

Jeffersonian-Republican Congressman Matthew Lyon of Vermont became the first person tried under the Sedition Act. In the summer of 1798, Lyon had published a letter in a Vermont newspaper accusing President Adams of monarchism and in a subsequent speech declared him fit for “a madhouse.” Arrested for sedition and tried in federal court, Lyon was convicted and sentenced to four months in jail. While in prison, he wrote a tract against Adams and was reelected to Congress.

This also led to the arrest of citizens.  

Luther Baldwin was a common laborer who drunkenly shouted that he did not mind if a cannon salute for a presidential procession shot Adams in the rear. When his words were printed in a local newspaper, he was tried and convicted under the Sedition Act.

And people running for office.

Samuel Jordan Cabell was a congressman representing Thomas Jefferson’s home district in Virginia. In May 1797 a grand jury returned a presentment of libel against Cabell (incidentally, as a delegate to the Virginia ratifying convention, Cabell voted against ratification of the Constitution). What was Cabell’s crime? He sent a letter to constituents criticizing the administration of John Adams.

You should note that the offices of government designated to receive protection from seditious speech did NOT include the office of Vice President.  During Adams term as president, Thomas Jefferson was the Vice President, and the US had not yet adopted the practice of using the party ticket to fill the office.  Thus you had a Jefferson-Republican Vice President who was potentially at risk of being imprisoned if he spoke out against the President or Congress.

You should realize as well that the offices of government cited that received protection from seditious speech did NOT include the office of Vice President.  During Adams’ term as president, Thomas Jefferson was the Vice President, and the US had not yet adopted the practice of using the party ticket to fill the office.  Thus you had a Jefferson-Republican Vice President who was potentially at risk of being imprisoned if he spoke out against the President or Congress.

Kentucky Resolution

Today we typically take the position that the courts are the mechanism that will keep the Executive and Legislative branches in check, as our government is a series of “checks and balances”.  This is what we are taught.  Marbury vs Madison is what established judicial review of the Constitutionality of federal government action. I guess you could say the check on judicial activity is impeachment but I’ll leave that up to you to ponder if that is indeed a check or something we simply repeat to ourselves.  

I don’t recall Jefferson’s response with the Kentucky Resolutions or Madison’s corresponding Virginia Resolution ever being taught in my history classes.  It’s a shame as it demonstrates the other avenues we have at our disposal to turn back government overreach.  Jefferson invoked the 10th Amendment stating:

Resolved that the several states composing the US. of America are not united on the principle of unlimited submission to their general government; but that by a compact under the style and title of a Constitution for the US. and of amendments thereto, they 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”

Thomas Jefferson - Draft for Kentucky Resolutions

This states that the 13 states formed a relationship where the Constitution granted specific limited authority and power for specific purposes only.  This was not a hierarchy, the federal government was limited to performing certain duties that the states could not accomplish individually.  The limited authority meant that the federal government could only function in accordance with the powers declared in the Constitution, and that any power not named for the federal government fell to the state’s authority.  The idea is that each state retained a high degree of autonomy.  

Should the federal government act in a fashion not enumerated, then that act is by default illegal, and the states were not obliged to follow that act.  Should the federal government grant itself new power, that power was unlawful and there was no obligation to obey.  If an action was contrary to the Constitution, it was immediately null and void.  This concept of nullification meant that member states could also determine what was lawful.  The member states determined the limits of the federal government's power.

This is direct action, it is an assertion.  It’s not a demand that your rights be recognized, it is applying the same principle that brought the American Colonies to the conclusion that the British could not enact laws that deprived people of their natural rights, one of those being free speech.  This was the subject of an earlier article on Cultural Courage.

Jefferson emphasized a critical point that a government can’t act as the sole judge of its own constraints.  Therefore the states have a duty to keep that power in check.  Otherwise a system of unlimited power arises.  

the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made it’s discretion, & not the constitution, the measure of it’s powers

Thomas Jefferson - Draft for Kentucky Resolutions

Jefferson did not rely exclusively on the 10th Amendment alone to reject the Alien and Sedition Acts. Clearly this was a direct violation of the First Amendment and a violation of the natural law principles that the colonists had rallied to when forming the United States.  The Anti-Federalists - those who opposed the Constitution prior to the addition Bill of Rights - now saw their fears come to fruition.

“in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch, that whatever violates either, throws down the sanctuary which covers the others, and that libels, falsehoods, and defamations, equally with heresy and false religion, are withheld from the cognizance of federal tribunals”

Thomas Jefferson - Draft for Kentucky Resolutions

Why Not Make The Case In the Courts

Jefferson and Madison realized that the courts were helmed by Federalist judges.  The outcry over the Alien and Sedition Acts resulted in resistance even by individual counties passing resolutions condemning the federal action.  Militias issued decrees denouncing the law’s unconstitutional nature. Resistance was not in the form of approaching the offender to act in the role of arbiter.  When judges were finding citizens guilty of sedition as defined by these laws, hoping that these same judges would discover their better nature seemed naive.  Casting off a monarch required a moral justification, and the Kentucky and Virginia resolutions were now applying the same principle.  Ultimately asserting freedom and declaring the Alien and Sedition Acts unconstitutional did not take place in a court.  

You would be right to ask if Jefferson’s approach worked.  The response from 10 other states was that the Supremacy Clause of the Constitution overrode the laws passed in Kentucky and Virginia.  While this may be true regarding duties laid out as belonging to the federal government as written in the Constitution, it seems to be a meager argument.  The Frist Amendment is pretty clear, and the Sedition Act is a usurpation of freedom of speech.  You can imagine that the Supremacy clause would also be the response of judges sympathetic to the Federalist interpretation of the legitimacy of the newly formed government.

This hard line taken by the Federalists was their undoing.  In the elections of 1800 the Federalists were swept from power, rejecting Adams and electing Jefferson as president.  Jefferson pardoned all those affected by the Sedition Act, and the segments of the acts that contained expiration dates were not renewed.  What remains today is the Alien Enemies act, which authorizes the President to deport enemies of the nation during war.

It’s clear that the courts did nothing to prevent the suspension of rights.  We are under the belief that the courts act as a countermeasure of government intrusion, but until the ruling is in your favor, your rights are gone.  There is no compensation for that.  Nullification through state action is a measure that can be a more immediate means of restoring your rights, but as with the Kentucky and Virginia Resolutions, they have to be recognized as legitimate.  But it is an active response, where you do not wait for your day in court.  And it raises awareness, whereas you risk the ever ready excuse that judges use today of “no standing”.  From that perspective you won’t even get a chance to redress your grievance.  You have conceded your rights to the expansion of power.  

But the other lesson is that the very people who escaped tyranny and formed a government predicated upon sovereignty of the individual tossed that into the fire.  These were the top minds who fought bravely, and they cast their ideals aside, and did what the British did to them.  This should shock people into realizing what is at stake today with our current leadership having a far inferior moral code.  We should never give away such power over our lives to even the best of people, let alone politicians who express such disdain for our rights and heritage.

References

https://oll.libertyfund.org/pages/1798-kentucky-resolutions

https://billofrightsinstitute.org/essays/the-alien-and-sedition-acts

https://tenthamendmentcenter.com/2017/11/16/today-in-history-kentucky-resolutions-signed-on-nov-16-1798/

https://constitutioncenter.org/the-constitution/historic-document-library/detail/the-alien-and-sedition-acts-1798