Show Notes: Kentucky 98

The Problem with Britain

We have to set the stage with the events leading up to the passage of the Alien and Sedition Acts, the responses by Jefferson and Madison with the Kentucky and Virginia Resolutions.

While the Treaty of France ended the war with Britain, Britain was a threat to the United States.  Our alliance with France could not prevent the British from seizing American vessels, and as an extension, American sailors were then “pressed into service” in the British Navy.  While the Treaty also gave the United States great territory in the west, extending past Ohio, the British refused to give up the occupation of that territory.

In 1793 Britain went to war with France.  Washington wanted to maintain a position of neutrality and hoped to trade with both countries, but the Americans found that both European powers had no issue with ceasing American vessels when it suited their needs.  This was a rejection of the sovereign rights of the United States, yet our country was not in a position of strength to retaliate with force.  

The division among the Founding Fathers regarding a resolution was the start of a divide that would nearly tear the country apart.  The Jefferson-Republicans, led by James Madison, wanted to exact punishment in the form of economic sanctions in the form of tariffs.  Washington, leading the Federalist party with Hamilton and Adams, desired a treaty with Britain in order and hoped to resolve the continued British occupation of the lands ceded to the US after the war.  Washington sent John Jay to negotiate with the British seeking remedies.

Despite the United States’ weak position against the naval power of England, Jay was able to gain concessions regarding the British relinquishing posts in the Northwest Territory, and payments for the seizure of American trade vessels.  The Americans agreed to offer Britain most favored nation trade status, as well as pay prior commercial debts owed to Britain prior to the Revolutionary War.  Finally, Jay Treaty agreed to restrict the size of American vessels trading in the British West Indies.

Many were outraged by the Jay Treaty, as it was seen as putting America’s sovereignty as secondary to Britain and trade.  The Jefferson-Republicans, the party who had voiced opposition to the Constitution as a power grab, claimed this a sign that the Federalists were subservient to Britain’s wishes.  The most favored nation trade status ended the ability to impose punishment on British trade practices with tariffs.  Washington, who was not satisfied with the Jay Treaty, refused to submit the details of the treaty to the House of Representatives after they threatened to block funding for the treaty, making the first claim of executive privilege.  

The treaty passed by narrow margins, and the American public was outraged by the terms.  

Does all of this sound familiar?

Yet the opposition to the treaty was far more vigorous than what we see today.  John Jay was burned in effigy at Fourth of July celebrations, and Alexander Hamilton was run off a public speaking engagement where during his attempts to defend the treaty, he was pelted with stones and run off stage.  Madison and Jefferson-Republicans regarded the treaty as bringing the United States back into a colonial status.

The Trouble With France

France saw the treaty as a violation of the 1778 treaty it had made to support the American colonies quest for independence.  To Jefferson and many in the Jefferson-Republican party, France was considered a sister republic, a kindred spirit in the quest for liberty for its people. 

But France began to increase the seizure of the American merchant vessels, capturing up to 300.  That presented a problem for the Jefferson-Republicans because France was not acting just as the British had, and seizure of naval vessels and goods was a direct violation of America’s sovereignty.

France continued to escalate tensions when it refused to admit the new minister Charles Pinckney.  1797 marked the beginning of the Quasi War with France as a result.  John Adams was now president, and the issues with France were a threat to the stability of the United States.  Adams began the gradual build up of naval capability while trying to reach a resolution with France.  His aim was to avoid war, and he sent a delegation to France for negotiations. 

The French demanded outrageous terms such as:

• A bribe of $250,000. 

• A loan of $12 million.

• An apology for President Adams’s critical speech and the Jay Treaty.

• An apology for President Washington’s Farewell address where Washington spoke of avoiding foreign entanglements.

Kentucky Resolution (1798)

Jefferson argued that the federal government had exceeded it’s authority and invented powers that could rescind rights.  

Here are the key arguments made by Thomas Jefferson in the Kentucky Resolutions:

• The Alien and Sedition Acts were unconstitutional. Jefferson argued that the Alien and Sedition Acts violated the First Amendment’s protection of free speech and press. The Kentucky Resolutions, based on Jefferson’s draft, declared these acts unconstitutional and void.
• States have the right to nullify unconstitutional federal acts. In his original draft, Jefferson explicitly used the word “nullification” to describe a state’s right to reject federal laws it deemed unconstitutional. He believed that when the federal government assumes powers not granted to it, states have a natural right to nullify those actions within their borders.
• The federal government has limited powers. The Kentucky Resolutions heavily relied on the 10th Amendment, emphasizing that powers not delegated to the federal government are reserved for the states or the people.  Jefferson argued that the federal government’s powers resulted from a compact agreement with the states, and any exercise of powers beyond those explicitly granted was a violation of that agreement.
• Unchecked federal power leads to tyranny. Jefferson warned that allowing the federal government to assume undelegated powers could lead to tyranny. He saw the Kentucky Resolutions as a crucial step in defending the Constitution’s principles and limiting federal power.

Although John Breckinridge removed the explicit term “nullification” from the version of the Kentucky Resolutions presented to the legislature, his arguments during the debate made it clear that he intended the Resolutions to lay the groundwork for nullification if Congress refused to repeal the Alien and Sedition Acts. Jefferson also affirmed this understanding in his later correspondence, indicating that while he didn’t want to push to extremes immediately, he wanted to maintain the option to do so in the future.

Jefferson considered the Kentucky Resolutions to be a significant document, comparing their importance to the Declaration of Independence. He believed that affirming the principles laid out in the resolutions was essential for protecting individual liberties and maintaining the balance of power between the states and the federal government.