4.1.1 Mountain South (1770-1831): The Conflict Over Federalism

Conflict in the  1790s

The Kentucky Resolutions (1798)

  • Conflict between advocates of strong central government and decentralized government has always been a central feature of American political discourse.   When the U.S. Constitution was drafted in 1787 a key question was:  what would be the respective roles of the new national government and the states?  Federalists believed the central government derived its power from the people directly, not the states.  Antifederalists viewed it as a creature of the states. 
  • Virginia and Kentucky shaped the next phase of the debate: whether states have the right to interpose against perceived federal abuses of power.  In 1798 a federalist Congress enacted the Alien and Sedition Acts based on fears that French agents and their supporters were trying to recreate the French Revolution in America.  The Acts provided stiff penalties for criticizing the government and were deeply unpopular. 
  • Thomas Jefferson and James Madison organized the opposition:  Madison drafted resolutions for the Virginia legislature arguing that states, as co-equals of the federal government, had a duty to oppose and resist unjust federal laws. Kentucky followed the lead of its parent state, adopting similar resolutions authored by Jefferson.  (See § ___).    For many states, even some that opposed the Act, the Kentuckians’ theory of interposition was too much:  they issued counter-resolutions disapproving  the Kentucky resolutions.

“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: … 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 …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.”  – Resolution of Kentucky Legislature (1798)

“[T]he people of the United States …have committed to the supreme judiciary of the nation the high authority of ultimately and conclusively deciding upon the constitutionality of all legislative acts.  The constitution does not contemplate, as vested … [in] the several states, any right or power of declaring that any act of the general government ‘is not law, but is altogether void, and of no effect’; and this House considers such declaration as a revolutionary measure, destructive of the purest principles of our State and national compacts.”  - Resolution of Pennsylvania Legislature to Kentucky (1799)

Conflict in the 1820

Bodley v. Gaither – Kentucky, 1825 (19 Ky. 57); Townsend v Townsend – Tennessee, 1821 (7 Tenn. 1)

  • Jefferson and Madison’s Democratic-Republican party gained control of the federal government in 1800 and repealed the Alien and Sedition Acts, but another clash between Kentucky and the federal government erupted in the early 1820s. 
  • In return for Virginia’s 1784 cession of the territory that became Kentucky, the federal government confirmed that Virginians would retain all rights to land they owned in the new state even if it had been settled and worked by new The  Kentucky legislature objected and passed a law requiring Virginians to pay Kentuckians for their improvements before taking back the land, but in Green v. Biddle (1823) the U.S. Supreme Court struck down that law.  The court’s decision, together with local federal court decisions striking down relief laws passed to help Kentucky debtors weather the severe depression of 1819, prompted Gov. Joseph Desha and the legislature to express open defiance of federal courts and to resurrect the interposition doctrine.  In Bodley, Kentucky’s supreme court held that Green was not binding because it had not been decided by a majority vote, but the Kentucky court went out of its way to reject interposition and affirm that as to interpretation of the U.S. Constitution, federal courts were supreme.   

“That we should consider ourselves bound by the decisions of the Supreme Court of the United States settling a construction of the constitution, or laws of the United States, … we shall not pretend to controvert.” Justice William Owsley, in Bodley


Thomas Jefferson, author of the Kentucky Resolutions (1791) (Charles Wilson Peale, artist) - courtesy Wikimedia Commons

File:Joseph Desha by Katherine Helm.jpg
Joseph Desha - courtesy Wikimedia commons

“What chance for justice have the States when the usurpers of their rights are made their judges?  Just as much as individuals when judged by their oppressors.  It is therefore believed to be the right, as it may hereafter become the duty of the State governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience to the unconstitutional mandates of the federal judges.” – Governor Joseph Desha, Message to Kentucky Legislature (1825)