The States as Final Interpreters
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the States to determine the scope and meaning of these freedoms. As the
Tenth Amendment made clear, the States had retained ‘‘to themselves the
right of judging how far the licentiousness of speech and of the press may
be abridged without lessening their useful freedom. . . .’’
Taken together, the Kentucky and Virginia Resolutions served as the
well-spring for the development of the State sovereignty theory of the
Union, a theory that became the point of reference for political and legal
debate until 1865, when it was officially put to rest with the defeat of the
Confederacy. The doctrines of Interposition, Nullification, and Secession
that southern writers, lawyers, and politicians employed to justify resistance to Federal laws were derived from the Resolutions of ’98.
The doctrine of Interposition, articulated by Madison in the Virginia
Resolutions, suggested that State officials had the right to ‘‘interpose’’
themselves between the Federal government and the people to protect
the latter, and that such interposition was necessary to prevent the enforcement of oppressive laws. ‘‘[I]n case of a deliberate, palpable, and
dangerous exercise of other powers not granted by the said compact,’’
wrote Madison, ‘‘the States, who are parties thereto, have the right and
are in duty bound to interpose for arresting the progress of the evil.’’
Going a step further, Jefferson argued in the Kentucky Resolutions
that nullification by the States was the proper remedy for unconstitutional acts of Congress. The Federal government, he said, cannot be the
judge of its own powers. The States are ‘‘sovereign and independent,’’
and for this reason ‘‘have the unquestionable right’’ to determine whether
Federal laws are constitutional. The ‘‘rightful remedy,’’ he concluded, is ‘‘a
nullification . . . of all unauthorized acts done under the color’’ of the Constitution. Later generations, led by John C. Calhoun of South Carolina,
took these arguments to the conclusion that any State could nullify Federal laws or secede from the Union if necessary, since the Union was a
voluntary compact of States that had retained their individual sovereignty.
From time to time State legislatures may and do express their views
on constitutional questions in the form of resolutions and petitions to
Congress. Though strongly worded, the Kentucky and Virginia Resolutions amounted to no more than a formal protest, based on the claim that
the States have a right to offer their own interpretations of the Constitu-