In the Shadow of Our Founders: Part Three

Davis allege that the remedies alluded to in the Virginia and Kentucky Resolutions, coupled with the assertions of the state ratifying conventions concerning the limits of federal authority and the right of the states to "arrest" excursions beyond the Constitution and "reclaim" lost rights, prove that the Founding Fathers accepted the legality of states peacefully seceding from the Union.

An examination of the Alien and Sedition Acts, and the debate they produced, certainly shows the tremendous concern many Founders had over their implications for the liberties of the people. The acts targeted immigrants for their general political support of Jefferson's Democratic-Republican Party and trampled on First Amendment guarantees of free speech and a free press. It was in this context, one in which the Bill of Rights was being tested, that Jefferson's Kentucky Resolution embraced the concept of state nullification of federal law and flirted with the possibility of secession.

Madison, however, did not go as far as Jefferson in the area of nullification and never even alludes to secession. Instead, the Virginia Resolution simply declares the offending acts "unconstitutional" and serves as a rallying call to other states to do the same. The implication of the Virginia Resolution is that, through the "interposition" of the states, federal laws deemed by the states to be unconstitutional can be overturned.

In his later report on the Resolution, Madison assured the Virginia General Assembly that "no improper means has appeared" in declaring the Alien and Sedition Acts "unconstitutional" and that the Resolution encompassed only such "other means" that might be "employed which are strictly within the limits of the Constitution." One example he listed was the possibility of the states pushing for a constitutional amendment to right the wrongs inflicted by the controversial acts. Indeed, the Virginia Resolution frequently declares the state's "warm attachment," loyalty and commitment to the Union and the Constitution.

In fact, Jefferson's Kentucky Resolution goes further than Virginia's primarily because the other states had not rallied to Virginia's ringing denunciation of the acts. In the second paragraph, Jefferson wrote: "We cannot however but lament, that in the discussion of those interesting subjects, by sundry of the legislatures of our sister states, unfounded suggestions, and uncandid insinuations, derogatory of the true character and principles of the good people of this commonwealth, have been substituted in place of fair reasoning and sound argument."

Yet despite the evident frustration in language that leaves

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