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This journal is for YOU! *Order today for more FREE book options Perfect for students or anyone on the go! The Independent Review is available on mobile devices or tablets: iOS devices, Amazon Kindle Fire, or Android through Magzter. INDEPENDENT INSTITUTE, 100 SWAN WAY, OAKLAND, CA 94621 • 800-927-8733 • [email protected] PROMO CODE IRA1703 The Kentucky and Virginia Resolutions Guideposts of Limited Government —————— ✦ —————— WILLIAM J. WATKINS, JR. n 1885 Woodrow Wilson noted that criticism of the Constitution had ceased upon its adoption and “an undiscriminating and almost blind worship of its prin- I ciples” had developed (Wilson 1885, 4). A survey of American political discourse after the Constitution’s ratification reveals that its provisions were often quoted in such a manner as a minister would quote the Gospel. Considering that the history of Anglo-American liberty is, in many respects, a history of great charters and the events leading to their adoption, American reverence for the Constitution is not surprising (see Brooks 1993). Of course, the Constitution is not the only document in the pan- theon. For most Americans the Declaration of Independence is also a sacred docu- ment, and some scholars place it above the Constitution (Jaffa 1994, 22–23). However, conspicuously absent from the list of universally revered charters are Thomas Jefferson’s and James Madison’s Kentucky and Virginia resolutions. For their lucid reasoning and peerless prose, they merit inclusion as much as the Constitution itself. Unfortunately, the Resolves of 1798, as they are also known, have been given short shrift as the nation has become more consolidated. Though the centralizers can twist the language of the Constitution to confer plenary powers on the national government, the language of the Resolves cannot be so manipulated. So Americans are kept in the dark about the principles of ’98, lest they be tempted to reclaim the decentralized republic of the Constitution’s framers. William J. Watkins, Jr. is a student at the University of South Carolina School of Law and a member of the staff of the South Carolina Law Review. The Independent Review, v.III, n.3, Winter 1999, ISSN 1086-1653, Copyright © 1999, pp. 385–411 385 386 ✦ W ILLIAM J. WATKINS, JR . Hoary and forgotten by most, the Resolves mark the path to limited govern- ment. Though much has changed since Jefferson and Madison penned the Kentucky and Virginia resolutions, the nature of power remains the same—power can be checked only by power. The Resolves point to the states as the natural depository of the power to check the national government. Madison came to that realization long before he wrote the Virginia resolution. In Federalist 51, he described the horizonal and vertical checks and balances established by the Constitution and plainly stated that the state and national governments “will controul each other; at the same time each will be controulled by itself” (Madison, Hamilton, and Jay [1788] 1982, 264). If the Ameri- can people are once again to gain control of the national government, it will be through the states. No new theories are needed; the intellectual giants of the founding era have done the work for us. Threat of French Invasion As the year 1798 began, the prospect of war with France loomed. How the “special relationship” between France and the United States had deteriorated after the Ameri- can Revolution is a complicated story. Hostilities between the two former allies were probably likely insofar as the French had supported the American Revolution not be- cause of beliefs in self-determination or republicanism but because of Louis XVI’s desire to punish Great Britain for the defeat of France in the Seven Years’ War. Many Americans were thankful for French aid in the Revolution, but others realized early on that although France had helped the United States to break from George III, the French would never acquiesce in its becoming a great nation (Ketcham 1963, 204–5). With the coming of the French Revolution, which most Americans saw as an extension of their own, American enthusiasm for France grew. Hindsight now shows that the two revolutions had little in common, the American Revolution being an orderly “lawyer’s revolution” whereas the French version was, to paraphrase Simon Schama, the incarnation of violence (1989, xv). Nonetheless, in the 1790s loyal Americans were divided into pro-French and pro-British camps, with the former led by Jefferson and Madison and the latter by Alexander Hamilton. Hamilton and the Federalists, great admirers of Great Britain and its constitu- tion, had a vested interest in peace with Britain. The entire Hamiltonian financial system depended on tariff revenue derived from imports of British goods. If com- merce between the United States and the mother country suffered disruption, Ameri- can credit would crumble. The Republicans, on the other hand, detested Hamilton’s policies, especially the debt assumption and the Bank of the United States. Recogniz- ing that the Federalist fiscal program sought to bind men of wealth and status to the central government in an effort to weaken state influence, the Republicans automati- cally suspected the “Anglo-men” and Britain itself. Moreover, the farmers and planters of the South, who were predominantly Republican, owed enormous sums of money to THE INDEPENDENT REVIEW T HE KENTUCKY AND VIRGINIA RESOLUTIONS ✦ 387 British creditors, and hence they naturally favored the French (Elkins and McKitrick 1993, 90). Key to the rupture with France was President George Washington’s Neutrality Proclamation of 1793 and the Neutrality Act of 1794. Because the United States was bound by treaty to defend the French West Indies and prohibited from aiding the enemies of France, Washington’s actions raised the ire of the French as they warred with Great Britain. Though neutrality was the practical course for a young, weak na- tion, such treatment of France shocked Madison and other Republicans who, unlike the Federalists, sympathized with the cause of revolutionary France and believed that the United States should fulfill its obligations (Brant 1950, 374–75). While Washington and his cabinet debated neutrality, the embodiment of the French Revolution arrived in Charleston, South Carolina. Charles Edmund Genet, the new minister of the French Republic, was welcomed by enthusiastic crowds and local dignitaries. Long before presenting his credentials in Philadelphia, Genet began to outfit privateers and schemed to incite rebellion in Florida, New Orleans, and Canada. As Genet learned that the Americans’ definition of neutrality and their interpretations of the existing treaties with France differed markedly from his own, his conduct grew more outrageous. Just as the mob ruled in France, so Genet thought the mob ruled in America. Taking that logic to an extreme, Genet threatened to go over the head of President Washington and appeal directly to the American people. Republicans and Federalists quickly realized that Genet was intractable, and Washington’s cabinet voted unanimously to demand his recall. Genet’s conduct was an embarrassment to French sympathizers in America, and, as Harry Ammon writes, it “exposed, as no other previ- ous episode, the extent and fury of the disagreement between the two groups which had been seeking to control national policy since the bitter controversy generated by the Hamiltonian fiscal program” (1973, 32). Furthermore, the ratification in 1795 of Jay’s Treaty, which attempted to settle sundry differences between Great Britain and the United States,1 struck the French as yet another betrayal. Specifically, the Directory was outraged by the provisions requir- ing the United States to order French privateers out of American ports and permitting the British to capture ships bound for France bearing needed supplies. Madison, in a letter of 12 February 1798 to Thomas Jefferson, called the infamous treaty an “insidi- ous instrument” (Madison 1991, 78). Consequently, the French minister was withdrawn from Philadelphia, and in Paris the French government refused to receive the new American minister, Charles 1. At issue were (1) British troops still on American soil in the Northwest, despite the 1783 Treaty of Paris; (2) restrictions on American commerce more onerous than those borne by the colonies before the Revolution; and (3) the British Order in Council of 6 November 1793, which led to widespread depreda- tions on American commerce and to the confiscation of anything coming to or going from the French West Indies. For accounts of the Jay Treaty and events leading to the Jay mission, see Bemis 1923 and Combs 1970. VOLUME III, NUMBER 3, WINTER 1999 388 ✦ W ILLIAM J. WATKINS, JR . Cotesworth Pinckney. The Directory, in violation of the commercial treaty of 1778, declared that it would no longer adhere to the principle that free ships carried free goods and would consider all neutral vessels carrying British goods as fair game. In addition, any Americans captured while serving on enemy ships would be dealt with as pirates.