The Kentucky & Virginia Resolutions

Fear, speech, and state power collide when Congress passes the Alien and Sedition Acts—and two southern legislatures answer back. We sit down with Dr. Beyenberg to unpack the Kentucky and Virginia Resolutions, tracing how Madison and Jefferson turned a free speech crisis into a lasting argument about federalism and constitutional limits. What begins with fears of French intrigue and partisan newspapers becomes a sharp debate over the First Amendment, the Tenth Amendment, and whether states can speak for themselves when Washington crosses the line.

We explore the text and the subtext: the Sedition Act’s unusual requirement that the speech be false, the choice to route prosecutions through juries, and the Federalist logic that leaned on English common law. Then we follow the strategy. Madison crafts Virginia’s protest as a constitutional nudge—rally sister states, pressure Congress, and signal the courts. Jefferson, writing for Kentucky, toys with the word nullification, opening a door he never clearly defines and setting the stage for later battles where that word becomes explosive.

The story doesn’t end in 1799. Opponents throw the resolutions back during the War of 1812, and by the 1830s the Webster-Hayne debates draw the hard line: if nullification means using force to block a federal law, it’s not constitutional argument—it’s a path to conflict. We connect those lessons to today’s fights over immigration enforcement and state resistance, asking how far a state can go without breaking the system that holds us together. Along the way, we also meet the Founders in full color—brilliant, strategic, and sometimes hypocritical—as they spar over speech and power.

If you value clear thinking about free speech, federalism, and who gets to say no to Washington, hit play, subscribe, and share this episode with someone who loves constitutional history. Then tell us: where should states draw the line?

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Chapters

• 1:32 Setting The Stage
• 1:46 Why Kentucky And Virginia Matter
• 2:43 Enter The Alien And Sedition Acts
• 4:40 Speech, Libel, And Federalist Logic
• 5:24 First And Tenth Amendment Clash
• 6:03 Madison And Jefferson’s Strategy
• 7:20 Compact Theory Explained
• 8:57 States Push Back And Courts Rise
• 9:57 Protest Vs. Nullification
• 12:39 Echoes In 1812 And Beyond
• 13:29 Founders’ Hypocrisy On Speech
• 14:25 Why It Still Matters Today
• 16:21 What Nullification Really Means
• 17:08 The Line Between Protest And War
• 17:27 Federalism’s Tools Without Nullification
• 17:47 Closing Thoughts

Transcript

SPEAKER_01: 0:46

Welcome back to Civics in a Year. We are starting our look through American history through the lens of primary sources, events, all of these kinds of things. And I'm excited to have Dr. Beyenberg back with us. And today we're going to look at the Kentucky and Virginia resolutions. So dates on the 1798, 1799.

SPEAKER_00: 1:10

With the wheel covered up in 1800, we'll talk about too.

SPEAKER_01: 1:13

Okay, perfect. So, Dr. Beyenberg, can you talk about what was happening when this document was written? What problem was it trying to address? Just we're kind of at answering, excuse me, the what and the why here.

SPEAKER_00: 1:28

Yeah. So the Virginia and Kentucky resolutions are responses to the Alien and Sedition Acts, and especially the Sedition Acts. So the historical context here, the French Revolution is continuing to roil in in Europe. And sort of it's blown. I mean, whether you count Napoleon as sort of a betrayal of it or a continuation is sort of a separate question. But the French are basically involved in a massive continental war with Britain and its allies. And one thing that they do, which is not very smart, is they try to basically convince Americans to more or less raise like almost privateer type armies and whatnot, potentially even destabilizing the United States. The Federalists who are not very sympathetic to this for basically good government reasons. I'm not saying that I agree with all their responses, but it's not completely insane for them to be seeing like, huh, there are mobs happening in America. Huh, we have the French like government basically in some of their agents seemingly trying to destabilize things over here, trying to suck us into a war with Britain. So maybe this is not a great idea. And so one of the and so they do various things, and we'll talk more about some of these, I think, when we do the um Jefferson's inaugural, since it's a lot of sort of party politics. But among the things that they do, so they're building up an army, Hamilton's pushing this, which again, I'll beat up on Hamilton in the next one on that. But they pass particularly the Sedition Act. And the Sedition Act is actually one of the, I think, a very misunderstood document. So the Sedition Act makes it illegal to, and I want to make sure I get the language correctly so I will read it, to print any false, scandalous, or malicious writing against the government of the United States or either House of Congress or the President with intent to defame or bring into contempt the hatred of the United States, surrupsedition, et cetera. Now, so this is obviously, in some sense, a significant bite against what people think of as freedom of speech. I will say in the Federalists' defense, A, they are building on traditional common law, in which, even under the English understanding of freedom of speech, you could be punished after the fact for particularly dangerous and libelous speech. Freedom of speech was understood that you get to say it first, but you could still be punished under libel laws after. Now, strikingly, the Sedition Act's text, it's easy to miss it, it has that the words must be false. That is itself a civil liberties innovation. So it's worth giving the Federalists their due. They are saying that false speech, that if it's true, even if it's critical of the government, it is potentially it's protected. In practice, that's a little shaky, but the text itself of the Sedition Act says it has to be false. And the execution has to be by juries and not judges. Right? So again, I'm not saying the Sedition Act is good, but it's not quite the sort of caricature of like Adams and Hamilton's, you know, scheming about how they can crush all opposition. And we'll talk more about sort of the party politics on that again in the next one. So the Sedition Act particularly freaks people out on the grounds that this is both inconsistent with seemingly an understanding of the First Amendment, but more particularly, it's seemingly inconsistent with the 10th Amendment. There is no enumerated power to regulate the speech in that regard, to regulate the press in that regard. And you would have to use really, really, really loose construction to the necessary and proper clause, right? It's not necessary to fight a war or to put down domestic insurrections or whatever to suppress basically speech. So again, we'll talk more about that. But so the Sedition Act is seen as unconstitutional, alien act as well, on First and Tenth Amendment grounds. And Jefferson and Madison are thinking about like their other sort of fellow partisans, how do we respond to that? And what they decide to do is effectively each write effectively a manifesto and launder it to one of the states. Madison has left Congress at this point. He's going to rejoin the Virginia legislature soon. Jefferson, amazingly, is the vice pres sitting vice president right now. So again, I love the like the mental image, the equivalent right now would be like J.D. Vance laundering an anti-Trump hit piece to the Washington Post. Like that's effectively what's happening here. It's not quite the same because they're opposite parties. But so the Virginia and Kentucky resolutions get passed, although they modify Jefferson's importantly in a way I'll talk about. But that's effectively what the context is. That they are protests written by the state governments. Their audiences sent to the other states basically saying, hey, fellow states, join us in protesting this. Because particularly, A, either Congress can repeal it, or B, and this is what ends up happening, the Sedition Acts were recognized as a temporary wartime measure even by the Federalists. And so they have a sunset. The Supreme Court never declares them unconstitutional because they expire first. But these are basically primarily protest documents responding to the Sedition and the Alien Acts.

SPEAKER_01: 6:40

What ideas or tensions in this document tell us something important about how American democracy was working at that time? Because when you talk about these things, right, like the first thing I think is like, that's unconstitutional, whatever. And I'm I'm falling into this lens of presentism. But we are still, you know, in these acts looking at, or this resolutions, looking at a time where America is still a very new country.

SPEAKER_00: 7:08

Yeah, although I actually do think that these are texts that really, uh we'll talk more about this, I guess, in a second, that I think do actually have a lot to say to us today, if they're sort of interpreted correctly. They're very easy to get misinterpreted and have been throughout time, particularly the Virginia resolution. So their basic argument, I guess I should flag what that is, I don't think I did before, is that these 2.2 laws are unconstitutional. The state governments, as members of a compact, and so they are arguing that the union is not just an indiscernible mass of basically all of the people of the United States, but it is a combination for limited purposes of all of these different states. And so they are saying we in the states, as compacts, as part of the compact, are protesting what our creature is doing, effectively, what this what Congress and the president are doing. And then they walk through and use very basic arguments. It's against the First Amendment because it's against the Tenth Amendment because. But basically they're they're states' rights protests. And they are sent out to the other states, and the other states respond quite negatively. Some of the states don't do anything. Most of the states respond and say, we disagree. Most often they disagree because they say this is an issue for the courts, which actually, again, I'm always beating up on Marbury v. Madison didn't invent judicial review. The other state legislatures are saying take it up with your courts. Some of them are, particularly the Federalist ones, are protesting on the merits that Virginia and Kentucky are protesting, and saying, like, yes, we are basically on the border of a war. We need to take these kinds of like these are good measures on the merits, and they're not unconstitutional. But the more common claim is just like that why is a state government running its mouth about this? Like, take it up with the court system. So that's their main argument there is they they are they are seen as recognizing the idea that the states are compacts and therefore the states have a protest. Now, this is where it gets a little dicey, and this is where Madison and Jefferson disagree. Madison understands these documents as protest documents. So Madison, you can leaf through it and he says, We protest it, we're expounding things. This state is declaring things, and they say, we declare the second, uh we declare that the acts are unconstitutional, and necessary and proper measures will be taken by each state for cooperating with the state, right? So he's using very constitutionally sounding uh language here. And historians have gone through and indeed found Madison thinks this is a protest. He passed, he gets Virginia to pass a follow-up in 1800, and again is a protest. So he doesn't view this as Virginia is gonna like send the you know the state militia to shoot back or anything. Jefferson flirts with language of nullification, which freaks Madison out. So the first draft of the Kentucky resolution uses this language of nullification. He doesn't say what nullification is, but he says the state will take acts to nullify this and make sure it's not happening within our borders. The Kentucky legislature originally takes that out. They repass another one a year and a half later where they put it back in. So these are often credited as the origins of the doctrine of nullification, which we've talked about at length, which is that states claim the power to unilaterally block federal activity. John Calhoun in the 1830s, or no, excuse me, Calhoun, Robert Hain in the Senate debates, explicitly cites Madison. That's unfair to Madison, and Madison comes out of retirement and says basically stop libeling me. But I do think there's a case to say that it comes fairly from Jefferson. Again, Jefferson's opaque. What does nullification mean? He doesn't say, but I think it's fair to say that the nullification, the idea of nullification does come from Jefferson. It doesn't come from Madison. But to the sort of how is this understood at the time, or what are they thinking about at the time? Again, the sort of the exact role of who's enforcing the constitution and how different people can enforce it is a little uh vague at the time, right? Is this exclusively the provision of the courts? Is this primarily the division of the courts? Do the other parties have a place to play, right? Again, do the other parties to this compact have a place or a role? Right. Madison and Jefferson both want to say yes, but they disagree then on what that role ought to be. For Madison, it's a protest. You get Congress to repeal it. Maybe you signal to the courts. Jefferson seemingly has a more expansive understanding of what he wants the state to be willing to do, but he doesn't uh spell it out, and they they they don't get pushed that hard on it. Now, they're not going to count today, but we jump ahead to the Ward 1812. The Federalist Party is protesting various things in the embargo acts. And at the Hartford Convention and some of their other things, they quote the Virginia and Kentucky resolutions back at them. And there's even at one point earlier a governor who I love pointing this out, he quotes the Virginia resolution while Madison is president. Madison is de facto is unofficially acknowledged as having written it, but not officially. And he says, this is a really brilliant document. Whoever wrote this has really got great ideas about government. And he's like trolling Madison, because Madison, of course, knows that he wrote it. So that's how it's understood at the time. So it it quickly ends up being, and I, you know, I'm a federalism fan, being something that people of sort of all factions and parties sort of recognize as a set of arguments, broadly speaking, that they can make. At least Madison's more moderate version.

SPEAKER_01: 12:43

I just, it there's so much drama, and it just makes me giggle because I I feel like sometimes we think of the founding fathers as these like very buttoned-up, you know, men, but they're trolling each other too. Why do you think of Virginia?

SPEAKER_00: 12:59

And they're also, in some sense, not perfectly consistent. Jefferson is very happy to use state libel laws that are state equivalent against Federalists. And Hamilton is happy who's an architect of I know that I beat up on the Hamilton musical. Hamilton is not a great like visionary for free speech and like a modern plunk him down progressive. Like he's one of the people who's very keen on the Sedition Act, and he's happy prosecuting his enemies with it. So at least some at least Jefferson is not a consistent player on this. Madison, I think, is fairer, but Jefferson is not a consistent player necessarily. Sorry, I cut you off there.

SPEAKER_01: 13:34

You're good. You're totally fine. So why does this document still matter today?

SPEAKER_00: 13:39

The document still matters today because at least many of us still think that federalism is a critically important part of our constitution. Uh at the same time, though, questions of does the federal government have power to do X, Y, or Z are often dicey. But also, who gets to say that it's wrong? Right? You know, we is this literally only the Supreme Court's job? I think most people would say no. But to, you know, to what extent can other folks participate? Generally speaking, nullification is seen, and this is a theme we've talked about before, as unacceptable, even by states' rights committed people. Andrew Jackson is basically willing to hang Calhoun for flirting with it, you know, after the Civil War. The Confederates, as they're seceding, say, we might be secessionists, but we're not really crazy. We promise we're not nullificationists. That's what real lunacy is. And so out the door, they all say this is this nullification is bad. They say this in prohibition when the uh when some of the states are doing things that I don't think are nullification, that some of the people think are nullification. And I I will make a slightly hot take here. I had a piece in National Review a couple days ago saying that there are some folks who are flirting with, you know, trying to have states take active nullification efforts against immigration authority, like immigration policies. Whatever the merits of any particular protest, I think one of the lessons of American constitutional history is that nullification is not an acceptable way to do that. It immediately leads to civil war if you actually follow through on it. As they say in the Webster Hain debates, if you're actually going to have your state do more than protest, that means your state's using violence, and that means you're using violence against federal authorities, which perhaps may be justified in some contexts, but that's a revolution. That's not a protest.

SPEAKER_01: 15:25

And really quickly, for listeners who might not know, what is nullification? And yes, I found the article, and yes, it will be in the show notes.

SPEAKER_00: 15:35

Nullification again is just the idea that a state is saying we have unilateral authority not to protest, not to file a lawsuit, but to use aggressive, basically violent measures to stop something that the state does not want the federal government doing. So it is again not a protest, not a it's this is where I think Madison and Jefferson are a distinction. Madison says you do it by the book. Again, obviously revolution is different. If the system is so oppressive or whatever, everybody agrees the right of revolution, Lincoln agrees with that, right? But you basically don't get to say we're within the Constitution, but we're using nullification. So nullification, if you implement it, as they say in the debates in the Senate in the 1830s, that if you actually implement it, it's civil war. So that's why, even again, even most people who deeply, deeply love states' rights, Andrew Jackson, James Madison, Calvin Coolidge, nullification is just seen as one of the tools of enforcing federalism that is off the table. There are lots of other really great tools that the system still leaves. And I think that's in some sense, to my mind, the lesson of these two documents. Madison's version, Madison's vision, I think is a really good description of federalism and what the states can and ought to do. Jefferson's is hazy to the extent that Jefferson is sort of the father of nullification. It's really Calhoun, but that streak of it, I think, is really, really dangerous.

SPEAKER_01: 17:01

Awesome, Professor Beyenberg. Thank you so much.