The Kentucky Resolution

Alien and Sedition Acts   (State Nullification of Federal Law)  (1798-1799) 

     Compact Theory of Government:  (the Confederate position) - A contract between states...

      Thomas Jefferson - The Kentucky Resolution (1798-99): 

Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they [the 13 states] 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; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force; that to this compact each state acceded as a state, and is an integral party; that 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 its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Objections to the Compact Theory (the Unionist position) - An agreement of "the people," not the states.

In Chisholm v. Georgia (1793), Chief Justice John Jay stated that the Constitution was established directly by the people. Jay noted the language of the Preamble of the Constitution, which says that the Constitution was ordained and established by "We the people," and stated: "Here we see the people acting as sovereigns of the whole country, and, in the language of sovereignty, establishing a Constitution by which it was their will that the State governments should be bound."

In Martin v. Hunter's Lessee (1816), the Supreme Court explicitly rejected the idea that the Constitution is a compact among the states, stating: "The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by 'the people' of the United States.'" The Court contrasted the earlier Articles of Confederation with the Constitution, characterizing the Articles of Confederation as a compact among states, while stating that the Constitution was established not by the states, but by the people. 


Likewise, in McCulloch v. Maryland (1819), the Supreme Court stated that the federal Constitution proceeded directly from the people, and was not created by the states. The Court stated that the Constitution was binding on the states and could not be negated by the states. The Court again contrasted the Articles of Confederation, which was established by the states, to the Constitution, which was established by the people.


James Madison to Nicholas Trist, 23 Dec 1832:

"The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by itNeither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it.  And certainly there is nothing in the Virginia resolutions of -98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a SINGLE [emphasis in original] party, with the PARTIES [emphasis in original] to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created. In the Virginia Resolutions and Report the PLURAL [emphasis in original] number, STATES [emphasis in original], is in EVERY [emphasis in original] instance used where reference is made to the authority which presided over the Government. As I am now known to have drawn those documents, I may say as I do with a distinct recollection, that the distinction was intentional.  It was in fact required by the course of reasoning employed on the occasion. The Kentucky resolutions being less guarded have been more easily perverted. The pretext for the liberty taken with those of Virginia is the word RESPECTIVE [emphasis in original], prefixed to the 'rights' &c to be secured within the States.  Could the abuse of the expression have been foreseen or suspected, the form of it would doubtless have been varied.  But what can be more consistent with common sense, than that all having the same rights &c, should united in contending for the security of them to each. 
 
"It is remarkable how closely the nullifiers who make the name of Mr. Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them. You have noticed what he says in his letters to Monroe & Carrington Pages 43 & 203, Vol. 2, with respect to the powers of the old Congress to coerce delinquent States, and his reasons for preferring for the purpose a naval to a military force; and moreover that it was not necessary to find a right to coerce in the Federal Articles, that being inherent in the nature of a compact. It is high time that the claim to secede at will should be put down by the public opinion; and I shall be glad to see the task commenced by one who understands the subject."   



Akhil Reed Amar, "The Consent of the Governed: Constitutional Amendment Outside Article V," Columbia Law Review, Vol. 94, 1994, p. 506
http://digitalcommons.law.yale.edu/fss_papers/982/
"The text of the Constitution makes clear in Article VI that any state constitutional provision-even if adopted by majority rule popular sovereignty in a state-is inferior to the federal Constitution. And Article V makes clear that a state people can be bound by a federal amendment even if that state people in state convention explicitly rejects the amendment. (Here, Article V differs dramatically from Article VII.) Both of these provisions are logically inconsistent with the sovereignty of the people of each state. And if we examine the constitution of 1787 as an act, and not a mere text, we will find no one-on either side of ratification-asserting that after ratification a state people could unilaterally secede at will"




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