The Doctrine of '98

by Jon Roland

The debates on ratification of the Constitution were not so much over whether a constitution for a federal union of some kind ought to the adopted, as over the perceived defects in the constitution proposed by the Philadelphia Convention of 1787, whether those defects were serious enough to justify rejecting the proposal and calling a new convention, or whether the proposed constitution should be adopted and then amended to correct the defects. It was also a debate over construction of many of the provisions of the proposed constitution. The proponents of ratification prevailed by assuring the opponents that amendments would be adopted to correct most of the defects, and by assuring them concerning how the language of the proposed constitution was to be understood and interpreted.

Fulfillment of the first assurances was achieved by proposal and adoption of the first ten amendments to the Constitution, called the Bill of Rights, and for a time, during the administration of George Washington, and while many of the Founders held seats in Congress, the interpretive assurances were fulfilled by the care they took to keep legislation in compliance with the original understanding. However, during the administration of John Adams, many of the original proponents of ratification formed a dominant faction, led by Alexander Hamilton, which came to be called Federalists, who proceeded to propose and adopt legislation which violated the assurances concerning construction of the Constitution, most notably the Alien and Sedition Acts of 1798. They were opposed by a faction which came to be called Republicans, led by Thomas Jefferson and James Madison.

It was not just the passage or enforcement of these acts that was a problem. Elements of the Federalist faction began to engage in a kind of reign of terror, inciting mobs to attack Republican newspapers, such as the Philadelphia Aurora, and drive their publishers into hiding. The mail of Republicans was often opened, leading Jefferson and others to resort to covert methods to protect themselves.

Jefferson and Madison led the reaction to these excesses. Jefferson drafted, anonymously, a set of resolutions that were introduced in the legislature of the newly admitted state of Kentucky, which after some debate, were adopted with only minor revisions Nov. 10, 1798, which came to be called the Kentucky Resolutions of 1798. Madison drafted a similar but shorter resolution which was introduced in the Virginia Legislature by John Taylor, and after some debate, adopted Dec. 21, 1798, which came to be called the Virginia Resolutions of 1798. These resolutions set forth the doctrine of constitutional construction, which came to be called the "Doctrine of '98", which they considered the Alien and Sedition Acts to have violated.

The most controversial element of this doctrine was its apparent implication of the doctrine of interposition — that the states had the power to declare unconstitutional a federal act which violated the Constitution, and forbid, as an official act of the state, the enforcement of the offending act within the territory of that state. It was argued by some that the Constitution was a compact of states, rather than a legislative act of the people, and as such each member state retained the power to withdraw from the compact if it were violated, either partially, by nullification of an offending act, or entirely, by secession.

Understanding the Kentucky and Virginia Resolutions to maintain the doctrine of interposition, many other states adopted counter-resolutions arguing against that doctrine, and some even held the Alien and Sedition Acts to be constitutional. The need for clarification on this point led Jefferson to have introduced in the Kentucky Legislature a second, shorter, clarifying resolution which was adopted as the Kentucky Resolutions of 1799. In Virginia, Madison issued what was called the Virginia Report, and was called by some Madison's Report, which further clarified the doctrine.

In the final clarification of Madison, the Doctrine of '98 does not maintain that the Constitution is a compact of states, but is the legislative act of the people, voting by state, and that while a state government does not have the power to nullify an unconstitutional federal act as an official act of that state, it can adopt a resolution expressing an opinion that such act is unconstitutional, and urging individuals not to comply with that unconstitutional act. In other words, on an issue of the constitutionality of a federal act, a state government may only urge, and not coerce, defiance of an unconstitutional act.

Madison's clarification did not lay to rest the state compact doctrine, which was further developed by John C. Calhoun and others into a "States Rights" doctrine that led to secession and the Civil War of 1861-65. It persists among many to this day, although it is fundamentally flawed as a matter of history. This does not mean, however, that other contentions of persons holding this doctrine are invalid, because they do not properly rest on the state compact theory, but on the limited delegated powers doctrine represented by the Ninth and Tenth Amendments.

The Doctrine of '98, properly understood and grounded, is a valuable guide to interpretation of the Constitution in accordance with the original understanding of the Founders and the assurances concerning construction that were the basis for ratification and which therefore are an unwritten part of the Constitution. The documents which comprise it stand as a manifesto of constitutionalism, strict constructionism, or originalism, and are comparable in importance to Madison's Notes on the Debates in the Federal Convention, the Federalist Papers, and the ratification Debates in the Several State Conventions, collected and published by Jonathan Elliott. It has several key components:

  1. Rights arising out of the state of nature and civil society are recognized by the Constitution, not created by it. They would exist even if not recognized, and repeal of such recognitions would not authorize violations of them.
  2. Privileges or immunities, which includes rights, recognized or created by the Constitution, are those of persons, not just citizens, unless otherwise stated.
  3. Criminal or penal powers, that is, the power to define and punish crimes, are distinct powers which are not implied by delegations of other powers, such as the power to regulate interstate or foreign commerce, which do not explicitly delegate such criminal or penal powers. In the original Constitution, this would be limited, on state territory under state jurisdiction, to four:
    1. Counterfeiting
    2. Treason
    3. Piracy and felonies on the high seas
    4. Offenses against the laws of nations
    5. Violations of lawful orders while in military or militia service
    The only exception would be the municipal or police powers delegated over parcels of land ceded to the exclusive jurisdiction of Congress by act of a state legislature under Art. I Sec. 8 Cl. 17.
  4. There are no common law crimes permitted. All criminal prosecutions must be of violations of statutes in effect at the time and place the offense was committed.
  5. The power to impose criminal penalties, that is, disablements of the rights of life, limb, or liberty, is only the power to punish acts which cause actual injury. It does not include the distinct powers to prevent or promote anything.
  6. The location of an offense for the purpose of assigning jurisdiction is the location of the offender when he committed the act.
  7. Except for military or militia personnel and offenses against the laws of nations, union and state courts do not have extraterritorial jurisdiction.
  8. Rights may not be disabled by legislation, either in whole or in part, for any class of persons. Legislation may only prescribe the rights to be disabled as the result of judicial due process ending in an order of the court, with each individual having the right to have his case tried and proven separately.
  9. Having a right implies having the right to acquire, possess, and use the means to exercise the right, and neither the exercise or the means may be taxed.
  10. The power to regulate does not imply the power to prohibit, prevent, or to promote, or to regulate things which affect the objects of regulation. It is only a power to issue regulations, supported by civil penalties, to prescribe the modalities of the the objects of regulation.
  11. "Commerce" consists only of trade in commodities. It does not include primary production, such as agriculture, mining, hunting, or fishing, nor does it include manufacturing, transport, possession, or use of anything.
  12. The power to tax may only be exercised to raise revenue, and not as a way to regulate or prohibit something for which no power to regulate or prohibit has been delegated.
  13. There is no power to impose criminal penalties for failure to pay a tax or for interference in the performance of duties under other delegated powers, except on federal, non-state, territory.
  14. Public revenues may only be raised and expended in a way that is of general benefit to the nation as a whole and that does not favor any state or region within it. Most "public works" are therefore unconstitutional, although promotion of the sciences, arts, and education may be constitutional if done in a way that does not favor or disadvantage any locality.
  15. The only "necessary and proper" powers are those for the administration of a power. They do not include other powers which might be needed to prevent or promote certain outcomes intended by the exercise of the delegated power.
  16. The militia may be regulated but not disarmed or disbanded, and in the absence of positive regulation may regulate itself.

The main documents which set forth this doctrine are found in the following collections:

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