The Virginia and Kentucky Resolutions: How States Challenged Federal Power

Two 1798 state declarations that argued states could reject unconstitutional federal laws—a doctrine that shaped American federalism for generations.

By Garret Merkley · Explainer · Aug 10, 2026

Branched from The Nullification Crisis of 1832: Causes and Resolution

Quick take

Virginia and Kentucky passed resolutions in 1798 claiming states could nullify federal laws they deemed unconstitutional.
The resolutions were responses to the Alien and Sedition Acts, which many saw as federal overreach.
Though they didn't stop those acts, the resolutions created a legal template for state resistance that echoed through the nullification crisis and Civil War debates.

The Virginia and Kentucky Resolutions were formal declarations passed by those two state legislatures in 1798 and 1799, asserting that states had the right to judge whether federal laws violated the Constitution and to declare such laws null and void within their borders. Written largely in secret by James Madison (Virginia) and Thomas Jefferson (Kentucky), the resolutions were a direct protest against the Alien and Sedition Acts—four federal laws passed that year that gave the president power to deport foreign nationals and criminalized criticism of the government. The resolutions didn't succeed in overturning those acts, but they articulated a principle of state sovereignty that would reverberate through American constitutional law for decades.

What the Resolutions Actually Said

The Kentucky Resolution (authored by Jefferson) made the most radical claim: it stated that the federal government was created by a compact among the states, and that when the federal government exceeded its constitutional powers, each state had the right to judge for itself whether a law was constitutional and to nullify it within that state's borders. The resolution called the Alien and Sedition Acts "palpably unconstitutional" and urged other states to join Kentucky in declaring them void.

The Virginia Resolution (authored by Madison) was somewhat more cautious in tone but made a similar point: it declared the Alien and Sedition Acts unconstitutional and asserted that Virginia had the right and duty to interpose itself between the federal government and its citizens to protect them from unconstitutional federal action. Madison's language emphasized "interposition" rather than outright nullification, but the underlying claim—that states could resist federal power—was the same.

Why They Were Written: The Alien and Sedition Acts Crisis

In 1798, the Federalist-controlled Congress, led by President John Adams, passed four laws collectively known as the Alien and Sedition Acts. The Sedition Act made it a federal crime to publish "false, scandalous, and malicious" writing against the government or to incite opposition to federal laws. The Alien Acts gave the president sweeping power to deport non-citizens deemed dangerous. Republicans (including Jefferson and Madison) saw these laws as naked political weapons designed to silence opposition and crush the Republican party. Several Republican newspaper editors were prosecuted under the Sedition Act, which inflamed tensions.

Jefferson and Madison believed the acts violated the First Amendment and the Constitution's limits on federal power. Since the Supreme Court had not yet asserted the power to strike down federal laws (that came in Marbury v. Madison in 1803), and since the Federalists controlled Congress and the presidency, the Republicans had no federal remedy. The Virginia and Kentucky Resolutions were their answer: a claim that states themselves could defend the Constitution when the federal government violated it.

Immediate Reception and the Doctrine of Nullification

Most states rejected the resolutions outright. Northern and Federalist-leaning legislatures passed counter-resolutions asserting that the federal courts, not individual states, should judge the constitutionality of federal laws. The resolutions did not stop the Alien and Sedition Acts; they expired or were repealed after Jefferson won the presidency in 1800.

However, the doctrine they articulated—state nullification of federal law—did not disappear. In the 1820s and 1830s, South Carolina revived this exact argument to resist federal tariffs it believed unconstitutional. South Carolina's nullification ordinance of 1832, which declared federal tariff laws void within the state, drew directly on the Kentucky Resolution's language and logic. The resulting Nullification Crisis brought the nation to the brink of civil war and forced a confrontation between President Andrew Jackson and South Carolina over whether states truly had such power.

Long-Term Constitutional Impact

The Virginia and Kentucky Resolutions lost their immediate political battle but won a permanent place in American constitutional debate. They established a template for arguments about state sovereignty and federal overreach that persists today. The resolutions were cited by secessionists in the 1860s as justification for southern states' right to leave the Union. They were also invoked—ironically—by southern states in the 1950s and 1960s to resist federal civil rights legislation and court orders on desegregation.

From a legal standpoint, the resolutions lost. The Supreme Court, especially after the Civil War, firmly rejected the idea that states could nullify federal law. In cases like Texas v. White (1869), the Court held that the Constitution created a perpetual union and that states had no right to secede or nullify federal authority. Modern constitutional law treats the supremacy of federal law (when the law is constitutional) as settled. Yet the resolutions' language about state rights and federal limits continues to shape political rhetoric and constitutional interpretation, particularly in debates over federalism, the scope of congressional power, and state resistance to federal mandates.

The Core Argument

States are sovereign parties to the Constitution and created the federal government through a compact.
When the federal government acts beyond its constitutional powers, states may judge for themselves and nullify the law within their borders.
The federal courts do not have a monopoly on constitutional interpretation; states can interpret too.
This doctrine was rejected by most states in 1798 and ultimately defeated by the Civil War, but it shaped American political argument for 170+ years.

Did the Virginia and Kentucky Resolutions actually nullify the Alien and Sedition Acts?

No. The resolutions declared them void in Virginia and Kentucky on principle, but they had no legal force to stop federal enforcement. The acts were not repealed until after Jefferson took office in 1801. The resolutions were a statement of constitutional principle, not a successful legal challenge.

Why did Madison use the word 'interposition' instead of 'nullification'?

Madison was trying to be more cautious and less radical than Jefferson. 'Interposition' suggested the state was stepping in to protect its citizens, which sounded less like outright defiance of federal law. But both men meant roughly the same thing: states had a right to resist unconstitutional federal action. Later, South Carolina and others dropped the euphemism and used 'nullification' directly.

How did the resolutions influence the Nullification Crisis of 1832?

South Carolina cited the Kentucky Resolution almost word-for-word when it passed its own nullification ordinance in 1832, claiming the right to nullify federal tariffs. The crisis forced a direct constitutional showdown: President Jackson insisted nullification was illegal and unconstitutional, while South Carolina claimed the right under the doctrine Jefferson had articulated. Jackson prevailed, and the Supreme Court later ruled nullification unconstitutional.

Could states still use nullification arguments today?

Legally, no. The Supreme Court has firmly rejected nullification as unconstitutional. However, the language and logic of the resolutions still appear in political debates about states' rights, federal overreach, and resistance to federal mandates (e.g., sanctuary city laws, state refusal to enforce federal immigration law). The doctrine is politically alive even if legally dead.

Who actually wrote these resolutions?

James Madison wrote the Virginia Resolution, and Thomas Jefferson wrote the Kentucky Resolution. Both were kept secret at the time; Jefferson's authorship wasn't publicly known until after his death. Madison's role was revealed earlier but was not widely advertised during his lifetime. The secrecy was deliberate—they wanted to protect themselves from Sedition Act prosecution.

Sources

Kentucky Resolution (1798) and Virginia Resolution (1798), as drafted by Jefferson and Madison respectively.
Marbury v. Madison, 5 U.S. 137 (1803), establishing federal judicial review.
Texas v. White, 74 U.S. 700 (1869), rejecting state nullification and secession rights.