So shocking were the president's deeds, so extreme were his opponents, so furiously did
partisan passions roil the public, that by the end of '98 some of the nation's most
eminent leaders were questioning whether America's experiment with constitutional
democracy was coming undone.
No, not the Clinton scandals. The year
was 1798. John Adams was in the White House and the United States was undergoing an agony
of political turmoil. It was a bitter time, but it produced two of the most remarkable
statements on liberty and limited government in our history - the Kentucky and Virginia
Resolutions of 1798.
Americans were sharply divided over a
host of issues that year, none more so than US-French relations. The Federalists, who
controlled the presidency and both houses of Congress, deeply mistrusted the French
revolutionaries and refused to support them when France went to war with Britain.
Republicans led by Thomas Jefferson were sympathetic to the French cause, which they
identified with America's own revolt against royal abuse two decades earlier. The
Jeffersonians denounced Adams and the Federalists as "monarchists" and
"Tories" - denunciations echoed by a growing population of anti-British
immigrants.
Angered by Washington's neutrality,
France began seizing American vessels. US diplomats in France were snubbed. A scandal
erupted - the famous XYZ Affair - when agents of the French foreign minister, Talleyrand,
demanded a bribe from President Adams's emissaries. Federalists were outraged; war fever
swept the country. There were rumors that France was planning an invasion - and that Vice
President Jefferson, whose Republican supporters were violently condemning the federal
government, would join the invaders and overthrow the Adams administration.
In this superheated atmosphere, Congress
and the president enacted a package of grotesquely unconstitutional laws. The Alien
Enemies Act empowered the president to jail or expel without trial any foreigner he deemed
"dangerous to the peace." The Sedition Act prohibited all criticism of federal
officials made "with intent to defame." Just seven years after the ratification
of the First Amendment, editors, printers, and politicians were hauled into court and sent
to prison for the crime of opposing the president.
Jefferson and James Madison - who called
the Sedition Act a "monster that must forever disgrace its parents" - resolved
to strike back. Knowing that a Supreme Court fight would lose (the bench was dominated by
Federalists), they decided to attack through the state legislatures.
Working with allies in Kentucky and
Virginia, Jefferson and Madison arranged for each state's general assembly to adopt a
statement protesting the new laws. Jefferson drafted the Kentucky resolution, which was
passed on Nov. 16, 1798. Madison wrote the Virginia resolution, which was adopted on
Christmas Eve.
"Resolved," the Kentucky
Legislature declared in its opening paragraph, "that whensoever the General
Government assumes undelegated powers, its acts are unauthoritative, void, and of no
force." Supreme authority in America, it argued, was held not by the federal
government but by the people and the states, and Congress and the president had only those
powers clearly delegated to them by the Constitution. The Alien and Sedition Acts were
intolerable above all because the federal government had no right to enact them. In the
20th century, the 10th Amendment has been largely ignored, but in the Kentucky Resolution,
Jefferson quoted it repeatedly:
"It is true as a general principle,
and is also expressly declared by one of the amendments to the Constitution, that 'the
powers not delegated to the United States by the Constitution, nor prohibited to it by the
States, are reserved to the States respectively, or to the people."' Nothing in the
Constitution gave federal officials any right to interfere with freedom of speech or the
press, or to exercise any jurisdiction over aliens. "Therefore, the act of Congress
passed on the 14th day of July, 1798 ... is not law, but is altogether void, and of no
effect."
The Virginia Resolution was also blunt.
Congress and the president, Madison wrote, have only the powers "enumerated in that
compact [the Constitution]; and that in case of a deliberate, palpable, and dangerous
exercise of other powers not granted by the said compact, the states ... have the right
and are duty bound to interpose for arresting the progress of the evil."
These resolutions weren't empty theory.
They were a forceful defense of freedom, and a reminder that when governments are allowed
to infringe the liberty of A, it is only a matter of time before they move on to B's.
"The friendless alien has indeed
been selected as the safest subject of a first experiment," declared the Kentucky
resolution, "but the citizen will soon follow - or rather has already followed, for
already has a Sedition Act marked him as its prey."
Jefferson and Madison were fearful, as
more Americans should be today, of allowing power to be concentrated in the central
government. They won the battle: Americans came to hate the Alien and Sedition Acts, and
the Federalists were thrown out in the election of 1800. But did they win the war?
In our day, the federal government has
grown monstrous, strangling Americans' freedom through endless regulations, restrictions,
and taxes. The bicentennial of the Kentucky and Virginia Resolutions reminds us how much
we have lost - and points the way to win it back.