Thomas Jefferson
Draft of the Kentucky Resolutions
October 1798
1. Resolved, That the several States composing
the United States of America, are not united on the principle of unlimited
submission to their General Government; but that, by a compact under the style
and title of a Constitution for the United States, and of amendments thereto,
they 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, its co-States forming, as to itself, the other 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.
2. Resolved, That the Constitution of the United States, having
delegated to Congress a power to punish treason, counterfeiting the securities
and current coin of the United States, piracies, and felonies committed on
the high seas, and offences against the law of nations, and no other crimes
whatsoever; and it being true as a general principle, and one of the amendments
to the Constitution having also declared, that "the powers not delegated to
the United States by the Constitution, nor prohibited by it to the States,
are reserved to the States respectively, or to the people," therefore the
act of Congress, passed on the 14th day of July, 1798, and intituled "An Act
in addition to the act intituled An Act for the punishment of certain crimes
against the United States," as also the act passed by them on the -- day of
June, 1798, intituled "An Act to punish frauds committed on the bank of the
United States," (and all their other acts which assume to create, define,
or punish crimes, other than those so enumerated in the Constitution,) are
altogether void, and of no force; and that the power to create, define, and
punish such other crimes is reserved, and, of right, appertains solely and
exclusively to the respective States, each within its own territory.
3. Resolved, That it is true as a general principle, and is also
expressly declared by one of the amendments to the Constitution, that "the
powers not delegated to the United States by the Constitution, nor prohibited
by it to the States, are reserved to the States respectively, or to the people;"
and that no power over the freedom of religion, freedom of speech, or freedom
of the press being delegated to the United States by the Constitution, nor
prohibited by it to the States, all lawful powers respecting the same did
of right remain, and were reserved to the States or the people: that thus
was manifested their determination to retain to themselves the right of judging
how far the licentiousness of speech and of the press may be abridged without
lessening their useful freedom, and how far those abuses which cannot be separated
from their use should be tolerated, rather than the use be destroyed. And
thus also they guarded against all abridgment by the United States of the
freedom of religious opinions and exercises, and retained to themselves the
right of protecting the same, as this State, by a law passed on the general
demand of its citizens, had already protected them from all human restraint
or interference. And that in addition to this general principle and express
declaration, another and more special provision has been made by one of the
amendments to the Constitution, which expressly declares, that "Congress shall
make no law respecting an establishment of religion, or prohibiting the free
exercise thereof, or abridging the freedom of speech or of the press:" thereby
guarding in the same sentence, and under the same words, the freedom of religion,
of speech, and of the press: insomuch, that whatever violated either, throws
down the sanctuary which covers the others, and that libels, falsehood, and
defamation, equally with heresy and false religion, are withheld from the
cognizance of federal tribunals. That, therefore, the act of Congress of the
United States, passed on the 14th day of July, 1798, intituled "An Act in
addition to the act intituled An Act for the punishment of certain crimes
against the United States," which does abridge the freedom of the press, is
not law, but is altogether void, and of no force.
4. Resolved, That alien friends are under the jurisdiction and
protection of the laws of the State wherein they are: that no power over them
has been delegated to the United States, nor prohibited to the individual
States, distinct from their power over citizens. And it being true as a general
principle, and one of the amendments to the Constitution having also declared,
that "the powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively, or
to the people," the act of the Congress of the United States, passed on the
-- day of July, 1798, intituled "An Act concerning aliens," which assumes
powers over alien friends, not delegated by the Constitution, is not law,
but is altogether void, and of no force.
5. Resolved, That in addition to the general principle, as well
as the express declaration, that powers not delegated are reserved, another
and more special provision, inserted in the Constitution from abundant caution,
has declared that "the migration or importation of such persons as any of
the States now existing shall think proper to admit, shall not be prohibited
by the Congress prior to the year 1808;" that this commonwealth does admit
the migration of alien friends, described as the subject of the said act concerning
aliens: that a provision against prohibiting their migration, is a provision
against all acts equivalent thereto, or it would be nugatory: that to remove
them when migrated, is equivalent to a prohibition of their migration, and
is, therefore, contrary to the said provision of the Constitution, and void.
6. Resolved, That the imprisonment of a person under the protection
of the laws of this commonwealth, on his failure to obey the simple order
of the President to depart out of the United States, as is undertaken by said
act intituled "An Act concerning aliens," is contrary to the Constitution,
one amendment to which has provided that "no person shall be deprived of liberty
without due process of law;" and that another having provided that "in all
criminal prosecutions the accused shall enjoy the right to public trial by
an impartial jury, to be informed of the nature and cause of the accusation,
to be confronted with the witnesses against him, to have compulsory process
for obtaining witnesses in his favor, and to have the assistance of counsel
for his defence," the same act, undertaking to authorize the President to
remove a person out of the United States, who is under the protection of the
law, on his own suspicion, without accusation, without jury, without public
trial, without confrontation of the witnesses against him, without hearing
witnesses in his favor, without defence, without counsel, is contrary to the
provision also of the Constitution, is therefore not law, but utterly void,
and of no force: that transferring the power of judging any person, who is
under the protection of the laws, from the courts to the President of the
United States, as is undertaken by the same act concerning aliens, is against
the article of the Constitution which provides that "the judicial power of
the United States shall be vested in courts, the judges of which shall hold
their offices during good behavior;" and that the said act is void for that
reason also. And it is further to be noted, that this transfer of judiciary
power is to that magistrate of the General Government who already possesses
all the Executive, and a negative on all legislative powers.
7. Resolved, That the construction applied by the General Government
(as is evidenced by sundry of their proceedings) to those parts of the Constitution
of the United States which delegate to Congress a power "to lay and collect
taxes, duties, imports, and excises, to pay the debts, and provide for the
common defence and general welfare of the United States," and "to make all
laws which shall be necessary and proper for carrying into execution the powers
vested by the Constitution in the government of the United States, or in any
department or officer thereof," goes to the destruction of all limits prescribed
to their power by the Constitution: that words meant by the instrument to
be subsidiary only to the execution of limited powers, ought not to be so
construed as themselves to give unlimited powers, nor a part to be so taken
as to destroy the whole residue of that instrument: that the proceedings of
the General Government under color of these articles, will be a fit and necessary
subject of revisal and correction, at a time of greater tranquillity, while
those specified in the preceding resolutions call for immediate redress.
8th. Resolved, That a committee of conference and correspondence
be appointed, who shall have in charge to communicate the preceding resolutions
to the legislatures of the several States; to assure them that this commonwealth
continues in the same esteem of their friendship and union which it has manifested
from that moment at which a common danger first suggested a common union:
that it considers union, for specified national purposes, and particularly
to those specified in their late federal compact, to be friendly to the peace,
happiness and prosperity of all the States: that faithful to that compact,
according to the plain intent and meaning in which it was understood and acceded
to by the several parties, it is sincerely anxious for its preservation: that
it does also believe, that to take from the States all the powers of self-government
and transfer them to a general and consolidated government, without regard
to the special delegations and reservations solemnly agreed to in that compact,
is not for the peace, happiness or prosperity of these States; and that therefore
this commonwealth is determined, as it doubts not its co-States are, to submit
to undelegated, and consequently unlimited powers in no man, or body of men
on earth: that in cases of an abuse of the delegated powers, the members of
the General Government, being chosen by the people, a change by the people
would be the constitutional remedy; but, where powers are assumed which have
not been delegated, a nullification of the act is the rightful remedy: that
every State has a natural right in cases not within the compact, (casus non
f;oederis,) to nullify of their own authority all assumptions of power by
others within their limits: that without this right, they would be under the
dominion, absolute and unlimited, of whosoever might exercise this right of
judgment for them: that nevertheless, this commonwealth, from motives of regard
and respect for its co-States, has wished to communicate with them on the
subject: that with them alone it is proper to communicate, they alone being
parties to the compact, and solely authorized to judge in the last resort
of the powers exercised under it, Congress being not a party, but merely the
creature of the compact, and subject as to its assumptions of power to the
final judgment of those by whom, and for whose use itself and its powers were
all created and modified: that if the acts before specified should stand,
these conclusions would flow from them; that the General Government may place
any act they think proper on the list of crimes, and punish it themselves
whether enumerated or not enumerated by the Constitution as cognizable by
them: that they may transfer its cognizance to the President, or any other
person, who may himself be the accuser, counsel, judge and jury, whose suspicions
may be the evidence, his order the sentence, his officer the executioner,
and his breast the sole record of the transaction: that a very numerous and
valuable description of the inhabitants of these States being, by this precedent,
reduced, as outlaws, to the absolute dominion of one man, and the barrier
of the Constitution thus swept away from us all, no rampart now remains against
the passions and the powers of a majority in Congress to protect from a like
exportation, or other more grievous punishment, the minority of the same body,
the legislatures, judges, governors, and counsellors of the States, nor their
other peaceable inhabitants, who may venture to reclaim the constitutional
rights and liberties of the States and people, or who for other causes, good
or bad, may be obnoxious to the views, or marked by the suspicions of the
President, or be thought dangerous to his or their election, or other interests,
public or personal: that the friendless alien has indeed been selected as
the safest subject of a first experiment; but the citizen will soon follow,
or rather, has already followed, for already has a sedition act marked him
as its prey: that these and successive acts of the same character, unless
arrested at the threshold, necessarily drive these States into revolution
and blood, and will furnish new calumnies against republican government, and
new pretexts for those who wish it to be believed that man cannot be governed
but by a rod of iron: that it would be a dangerous delusion were a confidence
in the men of our choice to silence our fears for the safety of our rights:
that confidence is everywhere the parent of despotism -- free government is
founded in jealousy, and not in confidence; it is jealousy and not confidence
which prescribes limited constitutions, to bind down those whom we are obliged
to trust with power: that our Constitution has accordingly fixed the limits
to which, and no further, our confidence may go; and let the honest advocate
of confidence read the alien and sedition acts, and say if the Constitution
has not been wise in fixing limits to the government it created, and whether
we should be wise in destroying those limits. Let him say what the government
is, if it be not a tyranny, which the men of our choice have conferred on
our President, and the President of our choice has assented to, and accepted
over the friendly strangers to whom the mild spirit of our country and its
laws have pledged hospitality and protection: that the men of our choice have
more respected the bare suspicions of the President, than the solid right
of innocence, the claims of justification, the sacred force of truth, and
the forms and substance of law and justice. In questions of power, then, let
no more be heard of confidence in man, but bind him down from mischief by
the chains of the Constitution. That this commonwealth does therefore call
on its co-States for an expression of their sentiments on the acts concerning
aliens, and for the punishment of certain crimes herein before specified,
plainly declaring whether these acts are or are not authorized by the federal
compact. And it doubts not that their sense will be so announced as to prove
their attachment unaltered to limited government, whether general or particular.
And that the rights and liberties of their co-States will be exposed to no
dangers by remaining embarked in a common bottom with their own. That they
will concur with this commonwealth in considering the said acts as so palpably
against the Constitution as to amount to an undisguised declaration that that
compact is not meant to be the measure of the powers of the General Government,
but that it will proceed in the exercise over these States, of all powers
whatsoever: that they will view this as seizing the rights of the States,
and consolidating them in the hands of the General Government, with a power
assumed to bind the States, not merely as the cases made federal, (casus f;oederis,)
but in all cases whatsoever, by laws made, not with their consent, but by
others against their consent: that this would be to surrender the form of
government we have chosen, and live under one deriving its powers from its
own will, and not from our authority; and that the co-States, recurring to
their natural right in cases not made federal, will concur in declaring these
acts void, and of no force, and will each take measures of its own for providing
that neither these acts, nor any others of the General Government not plainly
and intentionally authorized by the Constitution, shall be exercised within
their respective territories.
9th. Resolved, That the said committee be authorized to communicate
by writing or personal conferences, at any times or places whatever, with
any person or person who may be appointed by any one or more co-States to
correspond or confer with them; and that they lay their proceedings before
the next session of Assembly.