It is February 20th. Welcome to Episode 51 of History in a Year. Today, the Vice President of the United States secretly drafts a blueprint for rebellion. Trapped by the tyrannical Alien and Sedition Acts, Thomas Jefferson and James Madison realize the courts will not save them. In desperation, they author the Virginia and Kentucky Resolutions in the shadows, introducing a terrifying new political weapon: Nullification. We explore how this desperate political maneuver to stop John Adams inadvertently handed the Southern states the exact legal argument they would use to justify the Civil War sixty years later.
STEPHEN:
Welcome to History in a Year: America’s First 250 Years.
LEAH:
Join us every single day as we journey from the Revolution of 1776 to the 250th anniversary of the United States.
STEPHEN:
You can find every episode and join the discussion at PointedWords.com. I’m Stephen.
LEAH:
And I’m Leah.
STEPHEN:
It is February 20th. Welcome to Episode 51. Yesterday, the Federalist Party crossed the line from a political party into a tyrannical regime.
LEAH:
President John Adams signed the Alien and Sedition Acts into law. It was suddenly a federal crime to criticize the President or the Federalist-controlled Congress.
STEPHEN:
And it wasn’t an empty threat. Secretary of State Timothy Pickering was actively hunting down Democratic-Republican newspaper editors, slapping them in chains, and tossing them into freezing jail cells.
LEAH:
So, put yourself in the shoes of Thomas Jefferson. He is the Vice President of the United States, but he is completely shut out of power. His political allies are being rounded up. His mail is being opened and read by Federalist spies.
STEPHEN:
Jefferson realized the situation was absolutely dire. The Federalists were using the threat of a war with France to destroy the First Amendment and crush his political party forever.
LEAH:
Normally, if Congress passes an unconstitutional law, you take it to the Supreme Court. You sue, and you let the judges strike it down.
STEPHEN:
But there was a massive problem with that plan in 1798. The Supreme Court, and every single federal judge in the country, was a Federalist. They had all been appointed by George Washington or John Adams.
LEAH:
In fact, the Supreme Court justices were the ones presiding over the Sedition Act trials! Supreme Court Justice Samuel Chase was actively acting like a prosecutor, happily throwing Republican editors into prison. The courts were completely closed to Jefferson.
STEPHEN:
So, Jefferson and his best friend, James Madison, had to find another way to fight back. If the federal government passes a tyrannical law, and the federal courts refuse to stop it… who is left to protect the people?
LEAH:
Their answer was: The States.
STEPHEN:
Jefferson and Madison came up with a radical, incredibly dangerous legal theory. But because of the Sedition Act, they couldn’t just stand up and give a speech about it. If they did, they could be arrested for sedition.
LEAH:
Think about how crazy this is. The sitting Vice President and the Father of the Constitution are so terrified of their own government that they have to write their political arguments in secret, hiding their handwriting, and using back-channel messengers.
STEPHEN:
In the fall of 1798, working in complete secrecy, they drafted two documents. Madison wrote one for the state legislature of Virginia. Jefferson wrote one for the state legislature of Kentucky.
LEAH:
History calls them the Virginia and Kentucky Resolutions. And they introduced a concept called the “Compact Theory” of the Constitution.
STEPHEN:
This is heavy political philosophy, but it is absolutely crucial to understanding the rest of American history.
LEAH:
Here is how the Compact Theory works: Jefferson argued that the federal government was not a supreme, sovereign ruler. Instead, the United States was simply a “compact”—a voluntary contract—agreed upon by thirteen independent, sovereign states.
STEPHEN:
The states, Jefferson argued, created the federal government. They built the machine. They gave the federal government very specific, limited powers in the Constitution.
LEAH:
And—here is the dangerous part—because the states created the federal government, the states are the ultimate judges of whether the federal government has broken the rules.
STEPHEN:
Madison, in the Virginia Resolution, used a slightly softer word. He said that if the federal government acts tyrannically, the states have the right to “interpose”—to step in between the federal government and the citizens to protect them.
LEAH:
But Jefferson, writing the Kentucky Resolution, went much, much further. He took off the gloves.
STEPHEN:
Jefferson wrote that when the federal government assumes powers it wasn’t given—like regulating free speech—its acts are “unauthoritative, void, and of no force.”
LEAH:
And then, he dropped the hammer. He used a word that would haunt the United States for the next seventy years. He wrote that the rightful remedy for an unconstitutional federal law is Nullification.
STEPHEN:
Nullification. It means exactly what it sounds like. A state can look at a federal law, declare it null and void, and simply refuse to obey it within their borders.
LEAH:
If you take a step back and really look at this… it is a blueprint for destroying the country.
STEPHEN:
If any single state can just ignore a federal law they don’t like, then the United States isn’t a country at all. It is a loose alliance of independent countries. It would be a return to the disastrous Articles of Confederation.
LEAH:
George Washington watched all of this unfolding from his porch at Mount Vernon. He was horrified. He saw exactly where Jefferson’s logic was leading.
STEPHEN:
Washington wrote a frantic letter to an old friend. He wrote to Patrick Henry. Yes, the “Give me liberty or give me death” guy.
LEAH:
Patrick Henry had opposed the Constitution originally, but he loved George Washington. And Washington essentially begged him to come out of retirement and run for the Virginia state legislature to fight Madison and Jefferson’s resolutions.
STEPHEN:
Washington told Henry that if these resolutions were allowed to stand, they would “dissolve the union.” He knew that nullification was just the first step. The second step was secession.
LEAH:
And Patrick Henry, who was old and sick, answered Washington’s call. He gave a passionate speech warning Virginians not to tear apart the country they had bled to build. He told them, “United we stand, divided we fall.”
STEPHEN:
But Henry couldn’t stop it. The Virginia legislature passed Madison’s resolution. The Kentucky legislature passed Jefferson’s resolution.
LEAH:
Jefferson actually hoped that the other states would follow suit. He wanted a massive, coordinated rebellion of state legislatures against John Adams.
STEPHEN:
But the other states said… absolutely not.
LEAH:
The Northern states, mostly controlled by Federalists, sent back furious replies. They rejected the Compact Theory entirely. They said, “The states don’t decide if a law is constitutional. That is the job of the federal judiciary. That is the Supreme Court’s job.”
STEPHEN:
Ten states officially condemned the Virginia and Kentucky Resolutions. They told Jefferson and Madison, “We are one nation, not a club of states. You cannot just nullify a law.”
LEAH:
Because no other states joined them, the crisis eventually cooled down. The resolutions became a symbolic protest rather than an actual physical rebellion.
STEPHEN:
But the damage was done. The genie was out of the bottle.
LEAH:
Thomas Jefferson, in his desperate attempt to fight the tyranny of the Sedition Act, had accidentally handed the South a loaded weapon.
STEPHEN:
He provided the exact philosophical and legal vocabulary that Southern politicians would use for the next century.
LEAH:
In the 1830s, John C. Calhoun of South Carolina would resurrect Jefferson’s exact words to try and nullify a federal tariff. And in 1860, the Southern states would take the Compact Theory to its ultimate, bloody conclusion: Secession.
STEPHEN:
They would argue, just like Jefferson did, that since the states voluntarily entered the compact, they could voluntarily leave it.
LEAH:
So, the Alien and Sedition Acts didn’t just ruin lives in 1798; the reaction to them planted the intellectual seeds of the American Civil War.
STEPHEN:
The country was deeply, fundamentally broken. The Federalists believed the Republicans were French anarchists trying to destroy the government. The Republicans believed the Federalists were British monarchists trying to enslave the people.
LEAH:
The stakes had never been higher. And sitting right in the middle of this powder keg was the Presidential Election of 1800.
STEPHEN:
Join us tomorrow for Episode 52. The Revolution of 1800. John Adams and Thomas Jefferson square off in a rematch. It is the ugliest, most venomous, and most chaotic election in American history. We’ll see how Alexander Hamilton commits political suicide to destroy John Adams, and how the presidency is ultimately decided not by the voters, but by a frantic, days-long hostage situation in the House of Representatives.
LEAH:
I’m Leah.
STEPHEN:
And I’m Stephen.
STEPHEN:
You can find every episode at PointedWords.com. And this… is our story.