FIRST PRINCIPLES FOUNDATIONAL CONCEPTS TO GUIDE POLITICS AND POLICY

NO. 41 | February 21, 2012

Interposition and the Heresy of Nullification: and the Exercise of Sovereign Constitutional Powers Christian G. Fritz, Ph.D.

Abstract The seemingly unstoppable growth of the federal government has led to a revival, in some circles, of the discredited notion of nullification as a legitimate constitutional mechanism for states to reassert their sovereign powers. Proponents of this doctrine invoke the authority of James Madison to defend the claim that the Constitution empowers states to nullify laws passed by Congress. In this essay, Christian Fritz explains why Madison emphatically rejected the attempt by a single state to nullify national laws. Instead, Madison embraced something very different. The practice of —public opinion, protests, petitions, and legitimate actions of state legislatures—focused attention on whether the government was acting in conformity with the Constitution. Recovering Madison’s understanding of interposition offers a useful corrective to the mischaracterization of his views and makes clear that he rejected any constitutional basis for nullification.

olitical arguments frequently achieve particular political objec- mischaracterization of his views. Puse history for justification. tives, whether liberal or conservative. The episodes examined in this Invariably, such efforts are less about American politics today pro- essay—the and taking the past on its own terms vides a good example of this practice, Resolutions of the 1790s and the than the desire to make symbolic particularly in the invocation of the in the 1830s— historical references that resonate doctrine of nullification and seces- clearly raised a central question of with modern audiences in order to sion as legitimate constitutional : What are the respective options supposedly sanctioned in the powers of state governments and the thought of such Founders as James national government? Importantly,

This paper, in its entirety, can be found at Madison. But Madison emphatically however, those episodes were not http://report.heritage.org/fp41 rejected the attempt by a single state exclusively about federalism. They Produced by the B. Kenneth Simon Center to nullify national laws. Instead, he also raised key questions of consti- for Principles and Politics embraced a doctrine of interposi- tutionalism: Who were “the people” The Heritage Foundation tion—something very different from that underlay the national constitu- 214 Massachusetts Avenue, NE , DC 20002–4999 nullification but often mistakenly tion, and how could that sovereign (202) 546-4400 | heritage.org linked with it both at the time and in act and be recognized in action? Nothing written here is to be construed as necessarily our own day. Recovering Madison’s Questions of constitutionalism, reflecting the views of The Heritage Foundation or as an attempt to aid or hinder the passage of any bill understanding of interposition it should be emphasized, did not before Congress. offers a useful corrective to the involve matters of constitutionality FIRST PRINCIPLES | NO. 41 February 21, 2012

or the conformity of given actions over the puzzle at the heart of the state legislatures, not acting as the or decisions with a written constitu- new federal system: What did rule sovereign but as an instrument of tion. Rather, the term constitution- by a collective sovereign mean under the people to communicate concerns alism as used in this essay pertains a national constitution when the peo- about the national constitution. to the underlying authority of the ple who held this sovereignty were Alexander identified Federal Constitution residing in the also the sovereign of their individual that role in Federalist No. 26. He sovereign people and their relation- state governments? Overlooked described the state legislatures as ship with government. A failure to in most treatments of the Virginia naturally “jealous guardians of the recognize these questions of consti- and Kentucky Resolutions and rights of the citizens” of the state. In tutionalism has obscured the doc- the Nullification Crisis is how the the new federal system, the state leg- trine of interposition and miscast the American sovereign could—as the islatures, observed Hamilton, could Nullification Crisis as simply involv- concept of the people’s sovereignty “sound the alarm to the people” when ing a struggle over states’ rights. called for—oversee the workings of the national government exceeded Confusion over these issues is not the national government.1 its rightful powers.2 surprising. As those who debated These two controversies saw Public opinion, petitions, and interposition and nullification noted, Americans deploying a tool used protests as well as instructions to the language used to discuss these before the Civil War but little seen political representatives were some ideas was inherently ambiguous. today: the right of “interposition.” of the ways interposition could Moreover, the politics of Madison’s Often confused and wrongly associ- facilitate faithful execution of the day emphasized the practical conse- ated with nullification, Madison’s Constitution. Interposition could quences of a of the concept of interposition encouraged also involve resolving a constitu- states. The political question of the a spirited vigilance consistent with a tional controversy by seeking revi- relationship between the national proper understanding of American sion of the Constitution itself. James and state governments was so domi- constitutionalism. Madison described each of these nant that it overshadowed the ques- options as “the several constitutional tions of constitutionalism that were OFTEN CONFUSED AND WRONGLY modes of interposition by the States 3 part of Madison’s careful thought ASSOCIATED WITH NULLIFICATION, against abuses of powers.” about the theoretical foundation of The term “interposition” did not the Federal Constitution. Madison’s MADISON’S CONCEPT OF seem to prompt greater elabora- views about the constitutional impli- INTERPOSITION ENCOURAGED A tion by contemporaries than what cations of governments resting on a SPIRITED VIGILANCE CONSISTENT Madison provided. The word did not collective sovereign were easily over- WITH A PROPER UNDERSTANDING OF carry the implication, attached to it looked then just as they are today. today, that interposition nullified a AMERICAN CONSTITUTIONALISM. law, which was the understanding Madison’s Theory attributed to it during its use in the of Interposition Interposition sought reversal sectional debates preceding the Civil The right to monitor the constitu- of national laws that some thought War. Rather, what Madison and his tional operation of government was unconstitutional or simply wrong- contemporaries meant by “inter- a central issue of American consti- headed. It involved many potential position” seemed to come from its tutionalism after the adoption of the instruments and actions to maintain classic sense: As used in astronomi- Constitution in 1787. The struggle the Constitution’s health. It could cal and scientific texts of the period, over that right revealed a fundamen- involve individual citizens or groups it described the movement of some- tal disagreement among Americans of citizens. It might also involve the thing between two other things in a

1. For a discussion of how Americans struggled over the implications of founding governments on “the people,” see Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008). 2. Federalist No. 26, in Jacob E. Cooke, ed., The Federalist (Middletown, Conn.: Wesleyan University Press, 1961), p. 169. 3. James Madison, “To a Friend of the Union and States Rights,” 1833, in William C. Rives and Philip R. Fendall, eds., Letters and other Writings of James Madison, 4 vols. (: J. B. Lippincott, 1865), Vol. IV: p. 335 (hereinafter “To a Friend of the Union and States Rights”).

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relationship so as to interrupt and co-operation of three-fourths of other states as well as with national bring attention to the essence of that the sister States, to correct the lawmakers in Washington. relationship. In this sense, the moon errors by amendments of the An early example of interposition interposed when it came between constitution.5 occurred in 1790 when Virginia’s the earth and sun, allowing those on legislature passed resolutions earth to reaffirm how the sun pro- instructing its Senators in Congress vided light to the earth.4 A SUCCESSFUL INTERPOSITION to make public the debates in the In a constitutional mode, inter- OCCURRED EITHER WHEN THE United States Senate, which had been position usually involved an action closed since the formation of the GOVERNMENT BACKTRACKED that came between the people as the Constitution. Virginia’s legislature sovereign and the sovereign’s agent, BY CONCEDING THAT IT HAD sent copies to every other state leg- the government. This interposition OVERSTEPPED CONSTITUTIONAL islature “requesting their coopera- was not a sovereign act, since the LIMITS AS ASSERTED BY THE tion in similar instructions to their people as the collective sovereign did respective Senators” in order to alter INTERPOSITION OR WHEN not take that step. It did not break a practice inconsistent with a nation- the ties between the people and their THE PEOPLE, IN LIGHT OF THE al government based on a sovereign government by, for example, nul- INTERPOSITION, CHOSE TO CHANGE people who had a right to scrutinize 6 lifying laws. Rather, the interposer, THE CONSTITUTIONAL ORDER. the workings of their government. through public opinion, protests, Four years later, Pennsylvania petitions, or even the state legisla- manufacturers concerned about an tures acting as an instrument of the From our modern perspective, it excise tax that Congress intended to people, focused attention on whether is difficult to understand the need impose on their products memorial- the government was acting in confor- for such a tool as interposition. Some ized their state legislature, asking for mity with the people’s mandates as of that difficulty arises from the fact “the interposition and influence of a expressed in their constitutions. that early 19th century Americans legislature which may be considered A successful interposition lived in a world far different from the most immediate guardians of the occurred either when the govern- today’s nearly instant communica- rights and liberties of the citizens ment backtracked by conceding that tion of congressional deliberations of Pennsylvania.” Ultimately, they it had overstepped constitutional and actions. In addition, unlike the hoped that “a seasonable interposi- limits as asserted by the interposi- regularized if not full-time opera- tion” by the legislature might pro- tion or when the people, in light of tion of state legislatures today, ear- tect them from an “odious excise” by the interposition, chose to change lier legislatures were in session less a misguided Congress.7 By 1824, a the constitutional order. As New frequently and met at varying times. Maryland commentator described Hampshire’s U.S. Senator and future Thus, there were significant barriers the settled use of the tool of inter- U.S. Supreme Court Justice Levi to learning about the proceedings position: “The right of state legisla- Woodbury put it in 1830: of Congress as well as responding tures to express their approbation or (much less coordinating a collective disapprobation of the proceedings [A] State may resolve, may response) to laws being considered and policy of the federal government express her convictions on the and even passed by that body. Given has been claimed, exercised, and con- nullity or unconstitutionality of an inevitable time lag, interposition ceded…from the establishment of the a law or decision of the General served as a useful communication federal government to the present Government. These doings mechanism by which citizens and day.”8 may work a change through their state legislators could share The underlying impetus for public opinion, or lead to a their sentiments with legislators in the tool of interposition naturally

4. Fritz, American Sovereigns, p. 193. 5. Register of Debates, 21st Cong., 1st Sess. (Senate), February 24, 1830, p. 186. 6. Elizabeth G. McPherson, “The Southern States and the Reporting of the Senate Debates, 1789–1802,” Journal of Southern History, Vol. 12 (1935), p. 229. 7. Daily Advertiser (New York, N.Y.), September 10, 1794. 8. “Curtius” to “The Freeman of Maryland,” Easton Gazette (Easton, Md.), January 1, 1825.

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lessened with the appearance and writing” that brought the President resolutions that Jefferson drafted expansion of a transportation and or Members of Congress into “con- after learning of the passage of the communication infrastructure of tempt or disrepute.”10 Sedition Act were eventually adopted canals, telegraphs, and railroads dur- Opponents of Federalist policy in modified form by the Kentucky ing the 19th century. The principal were likely targets of both acts, legislature.12 In passing the resolu- demise of interposition can be traced but particularly the Sedition Act. tions, both legislatures expressed to its stigma in being linked with the Consequently, Republicans consid- the judgment that the two federal discredited doctrine of nullification, ered these acts a political attack. The laws were unconstitutional. The but America’s transportation and Federalist bias of the American press Kentucky Resolutions instructed the communication revolution before diminished in the 1790s with the state’s congressional delegation to the Civil War undoubtedly played a appearance of more newspapers tak- seek the acts’ repeal. The governor role as well. Nonetheless, the prac- ing a Republican slant. The Sedition was to transmit copies to the other tice of interposition by state legisla- Act threatened the Republicans’ state legislatures in the hope that tures instructing their Senators and use of newspapers to counter their those bodies would adopt similar requesting their Representatives in Federalist opponents. measures. The Virginia Resolutions Congress to oppose national mea- Besides the acts’ effect on practi- were intended for a corresponding sures that were deemed unconstitu- cal politics, they appeared to sub- distribution. tional or impolitic would continue vert the federal constitutional order. Some contemporaries assumed through the Nullification Crisis of Republicans asserted that the Alien (as have some subsequent scholars) the 1830s and long after that time. Act exceeded Congress’s constitu- that the resolutions sought to nul- tional powers, while the Sedition lify the operation of the two objec- The Practice of Interposition: Act violated the First Amendment. tionable federal laws in Virginia The Virginia and Kentucky complained to and Kentucky. This assumption Resolutions Madison that both acts showed discounts the resolutions’ express The backdrop to the most dra- “no respect” for the Constitution. purpose—to stimulate a coordinated matic example of interposition in Madison called the Alien Act “a mon- national effort through state legis- the early national period was poten- ster” that would “for ever disgrace latures to repeal the laws by con- tial war with France because of its its parents,” the Federalists. The act gressional action. The resolutions interference with American ship- denied the people the “right of freely embodied a distinction between ping. In that context, Federalists in examining public characters and a state legislature’s opinion of the Congress reacted by passing several measures.”11 constitutionality of national laws laws in 1798. One law, the Alien Act, The and action by the sovereign people to allowed the President to deport prompted Madison and Jefferson to render those laws unenforceable. aliens he deemed “dangerous to the orchestrate protests. Most dramatic The Virginia Resolutions called peace and safety” of the nation or was a set of resolutions they drafted, the acts “unconstitutional,” while suspected of “treasonable or secret to be adopted by the legislatures of the Kentucky Resolutions described machinations.”9 Its companion, the Virginia and Kentucky as a form of them as “not law but utterly void and Sedition Act, permitted punishment interposition. Madison authored of no force.”13 Those words, Madison of “false, slanderous, and malicious the Virginia Resolutions, while later explained, simply emphasized

9. James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca, N.Y.: Cornell University Press, 1956), p. 442. 10. Ibid. 11. Fritz, American Sovereigns, p. 198. 12. Long after their appearance, the genesis and authorship of the two sets of Resolutions remained shrouded in mystery and misinformation. See Editorial Note, “The Kentucky Resolutions of 1798,” in Julian P. Boyd et al., eds., The Papers of Thomas Jefferson, 33 vols. (Princeton, N.J.: Princeton University Press, 1950–), Vol. XXX, pp. 529–535. 13. “Virginia Resolutions,” December 21, 1798, in William T. Hutchinson et al., eds., The Papers of James Madison, 17 vols. (Charlottesville: University of Virginia Press, 1962–1991), Vol. XVII, p. 190 (hereinafter “Virginia Resolutions”); “Kentucky Resolutions Adopted by the Kentucky General Assembly,” November 10, 1798, in Boyd, Papers of Thomas Jefferson, Vol. XXX, p. 552 (hereinafter “Kentucky Resolutions”).

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the legislature’s opinion of the acts; “distinctly affirm” the Kentucky state governments did not form the they were not a nullification of the Resolutions’ “important principles.” Federal Constitution. Meetings of acts. Neither legislature asserted Hopefully, this would dispel the state conventions, like those that that their resolutions made the acts a need to take matters “to extremi- ratified the Constitution, were the dead letter, nor did either state take ties.” As Jefferson wrote Virginia appropriate mechanisms to invoke steps to resist the acts’ enforcement. legislator John Taylor before the the “ultimate” right of the people to The resolutions, as Madison pointed Virginia Resolutions passed, it was correct “infractions” by the national out, did not “annul the acts” because premature to contemplate the ulti- government. This was “especially” they came “from the Legislature mate step by the people. “[F]or the true, noted Madison, since the peo- only, which was not even a party to present,” he told Taylor, “I should ple in “a Convention was the organ by the Constitution.”14 Only collective be for resolving the alien & sedi- which the Compact was made.”19 action by the people as the sovereign tion laws to be against the constitu- Both states’ resolutions acknowl- source of the Constitution could nul- tion & merely void.” Virginia should edged the ultimate authority of the lify the acts. ask other states to make “similar people as the sovereign to assess the When the Kentucky legislature declarations.”18 constitutionality of the government’s convened in early November 1798, acts. Interposition by state legisla- Governor James Garrard urged AS MADISON POINTED OUT IN tures operated differently from such legislators to assess “the conduct THE VIRGINIA RESOLUTIONS, final action by the people as a matter of the national government” and of last resort. Legislative interposi- offer it appropriate “applau[se]” or LEGISLATORS WERE DOING THEIR tion sought the repeal of unconstitu- “censure.” The legislature should “DUTY” TO “WATCH OVER AND tional laws by focusing attention on declare the state’s support for the OPPOSE EVERY INFRACTION” OF them. As Madison pointed out in the Constitution and “protest against all CONSTITUTIONAL PRINCIPLES. Virginia Resolutions, legislators were unconstitutional laws and impolitic doing their “duty” to “watch over and proceedings.”15 Indeed, Kentucky’s oppose every infraction” of constitu- 1798 Resolutions asked its “Co-states” Five days after the Virginia tional principles. to declare the acts “void and of no legislature acted, Madison reiter- Virginia’s and Kentucky’s leg- force.”16 ated that a state legislature lacked islatures were acting as Alexander On the other hand, Virginia’s the constitutional authority to Hamilton predicted they would Resolutions identified “the states” as nullify a national law. He wrote during the ratification debate. State the “parties” to the Constitution who Jefferson, concerned that in their legislatures, asserted Hamilton, could “interpose” to stop uncon- “zeal,” some legislators might over- functioned as “jealous guardians stitutional acts.17 The resolutions look “the distinction between the of the rights of the citizens” to were an interposition by each state power of the State, & that of the “sound the alarm to the people” if legislature offering its constitutional Legislature, on questions relating the national government exceeded opinion. They were obviously not an to the federal pact.” While states its rightful powers. Hamilton also ultimate intervention by the people were “clearly the ultimate Judge of noted that after identifying excesses of the states themselves. infractions” of the Constitution, it of “national authority,” those legisla- Upon receiving the Kentucky did “not follow” that legislatures tures could “communicate with each legislature’s resolutions, Jefferson were “the legitimate organ” for other” and “at once adopt a regular sent a copy to Madison. Opponents rendering that ultimate judgment. plan of opposition.” By 1794, the of the acts nationwide should Unlike the Articles of Confederation, Virginian John Taylor asserted that

14. Fritz, American Sovereigns, p. 198. 15. Ibid., p. 199. 16. “Kentucky Resolutions,” p. 555. 17. “Virginia Resolutions,” p. 189. 18. Fritz, American Sovereigns, p. 199. 19. Ibid., pp. 199–200.

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state legislatures had “as good a right and remonstrances against the destroy the Union, undermine the to judge of every infraction of the acts. Keeping government “within national government, and introduce constitution, as Congress itself.”20 the just Limits of the Constitution,” “discord and anarchy.”24 Many Americans considered observed Virginia’s congressional Republicans questioned whether guardianship of the federal consti- delegates, required “wise and firm the judiciary was the sole interpreter tutional order an obligation extend- State Measures.”22 of the Constitution. A New York ing well beyond state legislators and state senator insisted that his col- legislative action. The “true lesson” The Federalist Response leagues, both “individually and in a of “the Representative principle,” Instead of rallying other leg- legislative capacity,” were entitled Madison observed, taught “that in islatures to protest the Alien and to express their views about how the no case ought the eyes of the people… Sedition Acts, the Virginia and national government was operating. be shut” to “the conduct of those Kentucky Resolutions stimu- The Senate should “proclaim” the entrusted with power; nor their lated Federalist attacks. George existence of unconstitutional acts. tongues tied from a just wholesome Washington dismissed criticism of Keeping the national government censure” of public officials. Ensuring the acts as party politics. Republican within constitutional bounds was the constitutional operation of leaders were deaf to any arguments the responsibility of the state legisla- government was the responsibility justifying the laws because they ture as well as private citizens.25 of individual citizens in addition to “have points to carry, from which no Indeed, Republican legislators their state legislators.21 reasoning, no inconsistency of con- in Vermont thought the resolu- Protests against the Alien and duct, no absurdity, can divert them.” tions exemplified “the most press- Sedition Acts preceding the reso- Virginia’s Resolutions tended to “dis- ing” duties of citizens “to guard with lutions in Virginia and Kentucky solve the Union.” Washington’s fears a watchful scrupulosity” against emphasized the duty of citizens to were echoed by other Federalists. For breaches of the Constitution. identify overreaching acts of govern- example, Massachusetts Federalist Guarding that Constitution, “the ment. Congress received a stream of Theodore Sedgwick believed the great and impregnable bulwark” petitions from counties in New York, resolutions were “a declaration of of America’s “political salva- New Jersey, and Pennsylvania as well war,” while his colleague Timothy tion,” could not safely be left to the as from Virginia and Kentucky. Pickering thought they implied “a national government or its judiciary. Despite these local efforts, the right to disobey” national laws.23 Just a few years earlier, Virginia effect on the national government Legislative responses reflected Republican John Taylor had insisted seemed minimal. By September the view—by no means universally that the people of “the nation itself 1798, Virginia legislator Wilson held—that constitutional interpreta- must watch over the constitution” Cary Nicholas thought that “town or tion was “exclusively vested” in the and “preserve it from violation.” county meetings will never produce federal courts and especially the Republican legislators were now the effect” of gaining national atten- Supreme Court. Federalists thought being denied a right “daily exercised tion for a repeal. Only a month earlier, the legislatures of Virginia and by individual citizens.”26 a Kentuckian also wanted “united Kentucky had no business assess- and official action” by the legislature ing the constitutionality of the Madison’s to supplement the other “constitu- acts. Their legislative opinions were In the face of these negative reac- tional measures” of letters, petitions, “unwarranted” and threatened to tions, the Virginia and Kentucky

20. Ibid., p. 200. 21. Ibid. 22. Ibid., p. 201. 23. Ibid., p. 202. 24. Ibid. 25. Ibid. 26. Ibid., pp. 202–203.

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legislatures drafted responses, from nullification, the use of the lat- either individuals or state legisla- aided by Madison and Jefferson. ter term in Kentucky’s 1799 resolu- tures. Protests and declarations— Kentucky’s response consisted of a tion inevitably contributed to later by citizens or legislatures—were resolution passed in November 1799 confusion and misconceptions. merely “expressions of opinion” to clarifying that its intent was not to In his draft for Virginia’s response, prompt “reflection” on the govern- secede or “disturb the harmony” of Madison wanted to correct the “mis- ment’s actions. Virginia’s resolutions the Union. conception” in the formal replies were only one form of interposition. Kentucky’s legislature asserted of state legislatures that Virginia’s All Americans shared a responsibil- that “the several states” (and by resolutions threatened the Union. ity to maintain the constitutional implication the people of “the several He insisted that states had a “right limits on government and vigilantly states”), as the sovereign source to interpose a legislative declaration defend constitutional principles. of the Federal Constitution, had of opinion on a constitutional point.” There were many other legitimate the “unquestionable right” to judge Published in 1800, Madison’s Report means of interposing to preserve the infractions of that Constitution and justified the resolutions as legitimate Constitution. In addition to state “that a nullification by those sover- and appropriate interposition to legislatures, “private citizens” could eignties of all unauthorized acts done monitor the Constitution.28 interpose to object to acts of the under color of that instrument, is the In his Report, Madison pointed government that they believed were rightful remedy.” Such a step could out that Virginia’s resolutions only unwarranted by the Constitution.30 be exercised by the whole people “communicat[ed]” to the other states Declaring the acts unconstitu- as the sovereign who created that its view that the acts were “uncon- tional did not exhaust the legisla- Constitution. stitutional.” This communication ture’s powers of interposition. State was not improper, unconstitutional, legislatures could have made a VIRGINIA’S LEGISLATURE DID or hostile to the Union. The resolu- “direct representation” to Congress, ITS “DUTY” BY SIGNALING tions reflected the “intermediate explained Madison, either seeking existence” of state governments the repeal of the “two offensive acts” THE PEOPLE ABOUT THESE “between the people” and the nation- or a revision of the Constitution by “ALARMING INFRACTIONS OF THE al government. Virginia’s legisla- amendment or through a consti- CONSTITUTION” REPRESENTED BY tors exercised a right defended by tutional convention. Interposition THE ALIEN AND SEDITION ACTS. the Constitution’s supporters—the included all of these approaches right of scrutiny. Madison recalled for influencing the operation of the that in 1788, Federalists insisted that national government. They were On the other hand, Kentucky’s the “vigilance” of state governments some of the “several means…consti- legislative protest against the Alien “would sound the alarm” at the first tutionally open for consideration” and Sedition Acts was a “SOLEMN signs of “usurpation” by the national as a legislative protest. Still, “the PROTEST” intended to attract atten- government. Virginia’s legislature first and most obvious” step for tion and bring corrective action. did its “duty” by signaling the people Virginia’s legislature was issuing its The state recognized that those about these “alarming infractions of resolutions.31 acts were “laws of the Union,” and the constitution” represented by the The interposition by Virginia’s the state would “bow” to such laws, Alien and Sedition Acts.29 legislature did not preclude the sov- despite the legislature’s opposition to Madison’s Report surveyed the ereign—being the people of the states them, in a “constitutional manner.”27 American practice of interposition. that included, but was not limited to, Despite distinguishing interposition This practice was not a “novelty” for those in Virginia—from using other

27. “Kentucky Resolutions of 1799,” November 14, 1799, repr. in Ethelbert Dudley Warfield,The Kentucky Resolutions of 1798: An Historical Study (New York: Putnam, 1894), pp.125–126. 28. Report of 1800, January 7, 1800, Madison Papers, Vol. XVII, p. 349 (hereinafter Report of 1800); “To a Friend of the Union and States Rights,” p. 335. 29. Report of 1800, pp. 349–350. 30. Ibid., p. 348. 31. Ibid., p. 349.

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“farther measures that might become sovereign capacity” was justified Constitution.” However, given “the necessary and proper.”32 Among the only when unconstitutional acts of object and reasoning” of those docu- “farther measures” for responding to government “deeply and essentially ments, specifics were “not neces- unconstitutional laws was the sover- affect[ed] the vital principles of their sary.” “It was sufficient to show that eign’s right to dictate a final constitu- political system.” This final resolu- the authority to interpose existed, tional solution. As Madison observed, tion of the Constitution by the people and was a resort beyond that of the “The authority of constitutions over should not occur “in a hasty man- Supreme Court of the United States.” governments, and of the sovereignty ner, or on doubtful…occasions.”37 If the sovereign people invoked their of the people over constitutions” The Virginia Resolutions referred to ultimate right to intervene, how they meant that a sovereign people held a right and duty of the people of the did so was their “own choice.”39 greater authority than the govern- states “to interpose” collectively in Historians often consider the ments they established.33 In America, cases of the national government’s Virginia and Kentucky Resolutions a “The people, not the government, “deliberate, palpable and dangerous failure because no other state issued possess the absolute sovereignty.”34 exercise” of powers not granted to similar resolutions. Yet the interpo- These were “fundamental princi- it by the Constitution.38 Madison’s sition by these two states in 1798 and ples” that Virginia’s and other state analysis of the Alien and Sedition 1799 focused attention on the Alien constitutions “solemnly enjoined” Acts provided a justification for such and Sedition Acts, as interposition Americans to observe.35 Virginia’s ultimate interposition. was designed to do. legislature did nothing revolutionary Consistent with the theory of by noting this ultimate right of the CONSISTENT WITH THE THEORY OF interposition, in 1800, American people in their protest. INTERPOSITION, IN 1800, AMERICAN voters went to the polls and chose The constitutionalism reflected between candidates who took oppos- by the resolutions presumed that VOTERS WENT TO THE POLLS AND ing positions on those acts. Jefferson the sovereign who adopted a written CHOSE BETWEEN CANDIDATES WHO made “violations of the true prin- constitution had the final word on TOOK OPPOSING POSITIONS ON ciples” of the Constitution a central the constitutionality of government’s THOSE ACTS. campaign issue for the Republican actions. For many Americans, as for Party. His election to the presidency Madison, this was “a plain principle, and that of his followers to Congress founded in common sense, illustrat- The people of the states “as reflected public opinion about ed by common practice, and essential co-parties to and creators of the the constitutionality of the acts. to the nature of compacts.” Because constitution” could exercise their Madison later concluded that the “resort can be had to no tribunal ultimate authority by amending the resolutions achieved “a triumph over superior to the authority of the par- Constitution or finding other ways to the obnoxious acts, and an apparent ties, the parties themselves must be express their constitutional under- abandonment of them forever.”40 the rightful judges in the last resort, standing. Madison later conceded Following the lead of the first whether the bargain made, has been… that the resolutions and his Report generation of Americans who lived violated.”36 lacked specifics about “what mode under the Constitution, subse- According to Madison, an “inter- the States could interpose in their quent generations employed inter- position of the parties, in their collective character as parties to the position in responding to national

32. Ibid. 33. Ibid., p. 312. 34. Ibid., pp. 336–337. 35. Ibid., p. 312. 36. Ibid., p. 309. 37. Ibid., p. 310. 38. “Virginia Resolutions,” p. 189. 39. Fritz, American Sovereigns, p. 207. 40. Ibid., p. 210.

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legislation they believed violated the to northern manufacturers. this occasion generated increasing Constitution. However, as the revo- The protests against the tariffs frustration. lutionary generation began to die off, initially followed the traditional pat- By late 1831, the South Carolinian the next generation lost sight of the terns of interposition that sought the John C. Calhoun, then Vice President legitimate tradition of interposition. repeal of unconstitutional laws, and of the United States, observed the effort was not limited to South that citizens of his state had “peti- The Nullification Crisis Carolina. Protests came from coun- tioned, remonstrated and resolved” In the late 1820s, another con- ties, such as from Madison’s neigh- for “years” against the tariff. South troversy divided the Union when bors in Orange County, Virginia, as Carolina’s legislature did its “duty” southern critics asserted that a tariff well as from state legislatures, such in bringing attention to the tar- on imports imposed by Congress in as Georgia’s petition to Congress iff’s “unequal and unconstitutional 1828 was unconstitutional because seeking relief. burden.” Meeting with “other States” it primarily aided northern manu- Eventually, tariff opponents orga- at the Philadelphia Free Trade facturers rather than advancing a nized a national convention, the so- Convention was ’s proper constitutional purpose of called Free Trade Convention, held “last effort at redress.” For tariff raising revenue for the nation. The in Philadelphia in September and opponents, the convention’s failure tariff’s protectionist motive and ten- October 1831. South Carolina sent a made other steps necessary.42 dency to make imports more expen- large delegation reflecting the state’s One new step involved an sive reduced government revenue view that the tariff was “unconstitu- approach that promised to redress as people bought less of the goods tional.”41 Many other states, northern not only the constitutional imbal- subject to the tariff. as well as southern, also attended the ance represented by the tariff, but convention. The convention adopt- also later national measures that WHAT DISTINGUISHED THE STATE ed a memorial asking Congress to might unconstitutionally disadvan- VETO FROM EARLIER PROPOSALS adjust the tariff. Although Congress tage the South. This step found a ignored the memorial, from the per- solution, Calhoun maintained, in TO REBALANCE THE FEDERAL spective of many in South Carolina, the way the Constitution provided CONSTITUTIONAL ORDER WAS the convention avoided the central “checks against the abuse of power ITS NATIONAL EFFECT AND THAT issue: It failed to address the concern on the part of the absolute majority.” IT SEEMED TO BE A SOLUTION that the tariff was only an example The current tariff crisis did not stem of what southern states would face from a flaw in the Constitution’s ADVANCED BY NATIONAL FIGURES in the future if the constitutional design but rather from the neglect of RATHER THAN SIMPLY BY LOCAL OR balance of the federal system was not southern states “to make application REGIONAL LEADERS. restored. of the proper remedy.” According to Years of trying to repeal the tariff advocates of the next step, what had For opponents, particularly in brought little relief. Many South always been available was the use of South Carolina, this demonstrated Carolinians concluded that the tradi- the individual state veto.43 that Congress lacked a proper pur- tional tools of protest through inter- The names proponents used to pose in imposing the tariff, exceed- position were not working. Petitions, describe the state “veto” seemed ing its constitutional authority. For remonstrances, and even the multi- rather innocuous at first: The veto many southerners, it represented a state convention were well-known was a state’s “protest,” its “interpo- perversion of the Union: One section means of interposition employed to sition,” or its exercise of “reserved was using its influence to transfer review and protest actions of govern- rights.” As the heat of the national the earnings of southern agriculture ment, but their ineffectiveness on debate intensified, other, more dire

41. “South Carolina on Internal Improvements and the Tariff,” December 16, 1825, in Herman V. Ames, ed.,State Documents on Federal Relations: The States and the United States (Philadelphia: University of Pennsylvania, 1906, repr. 1970), p. 140. 42. Fritz, American Sovereigns, p. 220. 43. “A Rough Draft of…the South Carolina Exposition” [completed ca. November 25, 1828], in Robert L. Meriwether et al., eds., The Papers of John C. Calhoun, 27 vols. (Columbia: University of South Carolina Press, 1959–2003), Vol. X, p. 496 (hereinafter “South Carolina Exposition”).

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names came into use. Proponents One key question went to the core raising government revenue. Instead, of the state veto were described as of American constitutionalism: To it was designed to benefit manufac- embracing “nullification, secession, what extent were Americans united turing states by placing commensu- disunion, and revolution.” What dis- about the meaning of a government rate burdens on southern agricul- tinguished the state veto from earlier in which the people were the sover- tural states. proposals to rebalance the federal eign? The scope of the controversy Calhoun described his theory as constitutional order was its national is best illustrated by several par- an interposition, something both effect. The state veto proposed in ticipants in the debate over the state envisioned and exercised by the the 1820s and 1830s anticipated that veto, principally John C. Calhoun, Constitution’s Framers. Proponents any single state could invalidate a its chief theorist. Opposing the of the state veto justified their read- national law for the Union as a whole. state veto was , U.S. ing of the Constitution by finding What also distinguished the state Senator from Massachusetts. words and actions of the Framers veto was that it seemed to be a solu- that they felt demonstrated a rec- tion advanced by national figures CALHOUN DESCRIBED HIS THEORY ognition of such a veto. Like other rather than simply by local or region- AS AN INTERPOSITION, SOMETHING political mechanisms operating al leaders.44 within the constitutional framework The theory justifying the single BOTH ENVISIONED AND EXERCISED of the national government, such as state veto came from the pen of BY THE CONSTITUTION’S FRAMERS. political parties or the presidential South Carolina’s John C. Calhoun. Cabinet system, important devices Calhoun considered that the 1828 A final, at times reluctant, partici- for sustaining the Constitution did tariff affected the South dispropor- pant was James Madison, in retire- not have to be specified in the text. tionately, insufficiently promot- ment at Montpelier. Both sides of They could be fairly implied from the ing the general welfare and raising the debate claimed that Madison’s actions of the Founders in imple- national revenue. writings justified their positions. menting the Constitution. In November 1828, at the request Madison was frustrated in trying to Calhoun found just such proof of his state’s legislature, Calhoun set the record straight. His efforts for his theory in the Virginia and anonymously drafted what became to clarify that he had not justified a Kentucky Resolutions and Madison’s known as the South Carolina state veto were undermined by the Report of 1800. Calhoun credited the Exposition, published by the legisla- heated debate. resolutions and Madison’s Report ture. Like Madison’s Report of 1800 Calhoun’s Exposition asserted as “the basis” of his discovery of the for Virginia’s legislature, South that the veto was a specific remedy state veto. He cast the state veto as Carolina’s Exposition focused atten- justified by the Constitution. It could an interposition as equally justi- tion on the power of the national be exercised when a power of the fied as the interposition taken by government. The Exposition’s justifi- Constitution granted the national Virginia’s and Kentucky’s legisla- cation of a state veto became a matter government to achieve “one object” tures in 1798.46 of national debate over whether the was used “to advance another” and Calhoun’s concept of a single Constitution included such a check in so doing sacrificed the proper state veto provoked a storm of con- on the national government. That object to which that power was to be troversy, in part because it claimed debate raised many of the same ques- directed. This was a “perver[s]ion” of the authority of Madison and tions that had been at issue during the Constitution, and according to Jefferson. For example, a south- the controversy over the Virginia and Calhoun, the 1828 tariff presented ern Senator described nullifica- Kentucky Resolutions. In addition, an example of such a perversion.45 tion by a single state veto as settled the veto debate raised other sensitive Congress had used its authority to “Republican doctrine.” He traced and unsettled issues in American exact a tariff. However, that tariff its origins to Madison’s “celebrated constitutionalism. was not for the legitimate purpose of ‘Virginia Resolutions.’” This heritage

44. Fritz, American Sovereigns, p. 220. 45. “South Carolina Exposition,” p. 446. 46. Fritz, American Sovereigns, p. 222.

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alone ensured that the doctrine, like “enfeebled by age” and that his memo- individual state. As he explained, the Madison’s Report of 1800, would ry was too bad to be credible.49 Constitution, “when formed, was “last as long as the Constitution submitted for ratification to the 47 itself.” FOR CALHOUN, THE PEOPLE WERE people of the several States; it was Learning of such arguments, UNQUESTIONABLY THE SOVEREIGN, ratified by them as States, each State Madison felt compelled to enter the for itself; each by its ratification bind- fray. Madison insisted that neither AND THEY EXPRESSED THEIR ing its own citizens.” Although each he nor Jefferson was responsible for SOVEREIGN POWER THROUGH THEIR state independently bound itself to nullification, a doctrine with a “fatal ORGANIZATION INTO INDEPENDENT the Union, that did not mean that it 50 tendency.” Rather than protecting STATES. THE PEOPLE WERE THE lost its independence. the diverse interests of the Union, For Calhoun, the people were SOVEREIGN WHO CREATED THE Madison believed, nullification put unquestionably the sovereign, and “powder under the Constitution and INDEPENDENT STATES, BUT IT WAS they expressed their sovereign power Union, and a match in the hand” of THESE INDEPENDENT STATES THAT through their organization into inde- any faction, leaving it to their whim WERE THE SOVEREIGN OF THE pendent states. The people were the whether “to blow them up.” Secession sovereign who created the indepen- NATIONAL GOVERNMENT. was a “twin” to the “heresy” of nul- dent states, but it was these indepen- lification, warned Madison. Both dent states that were the sovereign of doctrines sprang “from the same poi- the national government. sonous root.” The growth from this Calhoun and Calhoun thought it insignificant root would bring “disastrous con- State Sovereignty that the Constitution’s Preamble sequences.” By 1832, he noted how What made the “poisonous root” declared that it was “ordained by inexpressibly “painful” it was that of the state veto and nullification so the people of the United States.” Calhoun’s doctrine might cause the toxic was that it drew on the same Those words, for Calhoun, did not Constitution to be “broken up and principle that underlay American make a national people rather than scattered to the winds.”48 constitutionalism: In America, the the individual states the sover- Even before Madison went public people were the sovereign. A half- eign. Irrespective of the Preamble’s with his opposition, he corresponded century after Americans established language, Calhoun noted that the widely, disclaiming any connec- their governments on this principle, Constitution’s “article of ratification” tion to the state veto. As his views the concept remained as elusive as provided that, “when ratified, it is became known, they prompted it was when it first energized the declared ‘to be binding between the unpleasant attacks by advocates of Revolution. The problem was that States so ratifying.’” This made the veto. After South Carolina acted Americans remained divided on pre- on the propositions described in the cisely how that sovereign could give the conclusion…inevitable, that Exposition, Madison felt powerless effect to an expression of its will. the Constitution is the work of and hoped others would take up For purposes of the national gov- the people of the States, consid- “[t]he task of combating such unhap- ernment, all agreed that the people ered, as separate and indepen- py aberrations.” He mused that his were the sovereign, but how could dent political communities—that efforts were unavailing in bringing they exercise their sovereignty? they are its authors—their power serious attention to his ideas on con- Proponents of the state veto, such created it—their voice clothed stitutionalism; instead, his explana- as Calhoun, argued that the sov- it with an authority—that the tions were met with silence or with ereign for purposes of the Federal Government it formed is in real- dismissive statements that he was Constitution was the people in each ity their agent—and that the

47. Ibid. 48. Ibid., p. 223. 49. Ibid. 50. Ibid.

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Union, of which it is the bond, is simply represented “revolution or It was not, like the Articles of an Union of States, and not of rebellion”; it could never amount to Confederation, formed “by the gov- individuals.51 “constitutional resistance.”53 ernments of the component States,” As Webster’s position illustrated, as Calhoun maintained. Individual one’s understanding of the nature states were not the sovereign of the Webster and Popular of the federal union was shaped by national government. “[N]or was it Sovereignty how one described the sovereign formed by a majority of the people of Opponents of the state veto, that created the Constitution. The the United States, as a single commu- including Daniel Webster, dis- sovereigns envisioned by Webster nity, in the manner of a consolidated missed such arguments. In refuting and Calhoun were each different Government,” as Webster main- Calhoun’s concept of the sovereign, from the sovereign recognized by tained. Therefore, the people in the Webster described a different sov- the Constitution’s founder, James individual states retained constitu- ereign. This sovereign was also “the Madison. Madison thought that both tional significance.55 people.” The Constitution was not of their concepts of the sovereign As Madison explained, the “the creature of the States,” observed shared a “not uncommon” mistake Constitution was “a mixture of Webster. It was created by a much in understanding the “true char- both” consolidated and confeder- greater entity—“The people of acter” of the Constitution. Both ated governments. Neither Webster’s the United States.” The American Calhoun and Webster thought that claim that the American people in people “in the aggregate” formed the only one of two options was possible: “the aggregate” were the sovereign Constitution.52 America had either “a consolidated who formed the Constitution nor By their act as the national Government” or “a confederated Calhoun’s position that individual sovereign, they henceforth bound Government.”54 sovereign states were the parties themselves to the terms of that creating the Constitution accurate- Constitution. Thereafter, any effort NEITHER WEBSTER’S CLAIM THAT ly described the federal founding. to alter the constitutional order THE AMERICAN PEOPLE IN “THE Rather, “the undisputed fact is, that required “submission to the laws” by the Constitution was made by the compliance with the constitutional AGGREGATE” WERE THE SOVEREIGN people…as imbodied into the several revision provisions of Article V. The WHO FORMED THE CONSTITUTION States…and, therefore, made by the attempt to change the operation of NOR CALHOUN’S POSITION THAT States in their highest authoritative 56 the Constitution by other means—for INDIVIDUAL SOVEREIGN STATES capacity.” States acting in their example, by the theory of the state highest sovereign capacity were not WERE THE PARTIES CREATING veto—necessarily relied on the natu- the sovereign people of each state ral-law right of resistance to tyranny. THE CONSTITUTION ACCURATELY acting individually. According to There was no “middle course,” no DESCRIBED THE FEDERAL FOUNDING. Madison, a state acted in its “highest alternative between either comply- sovereign capacity” only when the ing with the Constitution’s proce- sovereign people of the state acted dural requirements or the people Madison and the Sovereignty in combination with the sovereign exercising the natural-law right of of the People in the States people of other states.57 revolution. By allowing each state a Madison explained that the During the federal conven- veto, argued Webster, nullification Constitution created neither. tion, Madison had argued that the

51. Ibid., p. 224. 52. Ibid. 53. Ibid. 54. Ibid. 55. Ibid., p. 225. 56. Ibid. 57. Ibid.

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sovereign was the people in the dis- so ignored Madison’s concept of the sovereign party to the Constitution. crete states acting collectively. The Constitution’s formation. Calhoun assumed that when draft constitution, he noted, sprang Madison was appalled by how Madison’s Report and the Virginia “not immediately from the people, proponents of the state veto used Resolutions referred to the powers but from the States which they his Report. That Report explained of the sovereign who created the respectively composed.” During the and justified the interposition by Constitution, Madison meant pow- ratification debate, he identified the the Virginia and Kentucky legisla- ers exercised by the people within a sovereign behind the Constitution as tures but did not suggest that the single state. Reading the Report in “the people of America,” acting “not people of a single state could con- this way affirmed Calhoun’s belief as individuals composing one entire stitutionally veto a national law. that “a sovereign State as a party to nation; but as composing the distinct Nonetheless, Calhoun inferred this the Con[stitutiona]l comp[ac]t” could and independent States to which they from Madison’s Report. nullify an unconstitutional national respectively belong.”58 law.61 Calhoun’s theory asserted that Similarly, in 1798, fellow Virginian MADISON’S USE OF THE PLURAL— each state was a sovereign of the John Taylor described “the people in THAT IT WAS THE PEOPLE OF THE national government and thus could state conventions” as “incontrovert- act authoritatively and independent- ibly the contracting parties” behind STATES WHO WERE A COLLECTIVE ly of the others and veto unconstitu- the Constitution capable of effect- SOVEREIGN—CRUCIALLY tional laws. ing such changes. In 1800, Madison DISTINGUISHED HIS VIEWS Calhoun used Madison’s descrip- described “the people composing” FROM CALHOUN’S CONCEPT OF tion that the collective people of the political societies of their respec- all the states were the sovereign A CONFEDERATION OF STATES, tive states acting “in their highest to justify a single state’s veto. That sovereign capacity” as creating the WITH EACH INDIVIDUAL STATE argument failed to recognize that Constitution. Likewise, the consti- A SOVEREIGN PARTY TO THE Madison identified a majority of the tutional commentator St. George CONSTITUTION. people of all the states—and not indi- Tucker in 1803 described the foun- vidual states—as the sovereign of the dation of the Constitution as resting national government. on the consent of “the people of the Madison replied that he had several states, separately, and inde- consistently referred to “the ‘States’” What Is Meant by “the States”? pendently taken, and expressed.”59 when describing “the people…in their Madison acknowledged that “the Even though 30 years had elapsed highest sovereign capacity” who had term ‘States’” was ambiguous. since he authored the Virginia ratified the Constitution.60 Likewise, First, Madison noted, it could Resolutions, Madison remained he made the same reference when mean individual state governments. unshaken in his belief that the people identifying the people’s constitu- Second, it could mean the people of the states in their collective capac- tional right to intervene in extraor- within a state as the sovereign of ity had created the Constitution and dinary circumstances when actions that state. Third, it could mean the were the sovereign of the national of government had gone hopelessly American people who lived in the government. Nonetheless, much to amiss. Madison’s use of the plural— different geographic areas known as his frustration, Americans in the that it was the people of the states “states.” Madison’s definition of the 1830s began (and would continue) who were a collective sovereign—cru- sovereign that underlay the Federal to describe the Constitution in the cially distinguished his views from Constitution encompassed this binary terms of either a consolidated Calhoun’s concept of a confederation third meaning of the people in “the or a confederated government. Doing of states, with each individual state a ‘States.’”62

58. Ibid., p. 194. 59. Ibid., p. 195. 60. Report of 1800, p. 309. 61. “South Carolina Exposition,” p. 520. 62. Fritz, American Sovereigns, p. 196.

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These different meanings of the and only a majority of that collective of the judicial as well as other term “the states” dictated how one sovereign could alter or abolish the branches of the Government.”64 might understand the Constitution Constitution outside of its “purview This was simply a matter of the as a “compact” among “the states.” and forms.”63 unlimited power of the sovereign. Under the first meaning attributed to Madison’s terminology dem- As “the last resort of all” for chal- “the states,” the Constitution could onstrated that describing the lenging the proper meaning of the mean a compact of individual state Constitution as a compact did not Constitution, explained Madison, governments. The second meaning demand an acceptance of individual there could be no “tribunal above” implied the sovereign people of an state governments or the sovereign the people in the states when they individual state compacting with the people of individual states as the acted as the sovereign. As the “par- sovereign people of other states to parties who created the Constitution. ties to the constitutional compact,” adopt the Constitution. Rather, Madison’s description of “the they collectively could “decide states” as parties to the federal com- whether” their constitutional com- 65 FOR MADISON, THE CONSTITUTION pact envisioned a collective sover- pact had been “violated.” WAS A “COMPACT” REFLECTING AN eign that created the Constitution as As the Constitution’s sovereign defined neither in solely individual creator, the people were not subor- AGREEMENT BY THE PEOPLE OF THE state terms nor in purely national dinate to their creation, the national INDIVIDUAL STATES ACTING NOT terms. In the political climate of government. The people had a final AS THE SOVEREIGN OF THEIR OWN the 1830s, the deliberate distinc- authority. The Constitution was STATES, BUT RATHER IN CONCERT tion Madison had long articulated merely “a description of those pow- found his view positioned between ers which the people have delegated WITH THE PEOPLE OF OTHER STATES a “state rights” understanding of to their Magistrates, to be exercised AS THE COLLECTIVE SOVEREIGN OF the Constitution as a compact of for definite purposes.” Interposition THE NATIONAL GOVERNMENT THEY states and a nationalistic view of the alerted the people to whether their WERE CREATING. Constitution as the product of an agent, the government, was acting undifferentiated American people. in conformity with constitutional dictates. It remained up to the people For Madison, in using the The Collective Sovereignty as the collective sovereign whether third meaning of “the states,” the of the People. The fact that the to resolve matters by exercising their Constitution was a “compact” Constitution provided means for final or, as Madison put it, “ultimate” reflecting an agreement by the peo- resolving constitutional questions, authority, which could also be exer- ple of the individual states acting not however, did not and could not cised outside the “purview and forms” as the sovereign of their own states, preclude the people collectively of the Constitution.66 but rather in concert with the people as the sovereign from deciding a Thus, Madison distinguished the of other states as the collective sov- constitutional issue for themselves. Virginia and Kentucky Resolutions ereign of the national government Even after a decision by the judiciary from South Carolina’s “nullifying they were creating. The people of the or another branch of the national process.” South Carolina, Madison nation—while still identified in terms government, the sovereign—the noted, did not distinguish the con- of the individual states in which they people of the states—as “the parties stitutional “right of the parties to acted—was a different sovereign col- to the Constitution” might still the Constitution” to nullify national lectively from the people acting as exercise their “authority above that laws from the ability of “a single sovereigns of their respective states. of the Constitution itself” (emphasis party” to withdraw from the Union This collective sovereign was the sov- added). Their authority “to interpose” in the face of oppression as an act of ereign that created the Constitution, existed regardless of “the decisions revolution. “[T]he plural term States,”

63. Ibid. 64. Ibid., p. 230. 65. Ibid., pp. 230–231. 66. Ibid., p. 194.

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Madison noted of his Report of 1800, to redress any challenged exercise of our natural rights, or the right of “was invariably used in reference” to government power—as the Virginia revolution,” but insisted they were actions taken by states and not by and Kentucky Resolutions attempted acting under “a CONSTITUTIONAL a single state. This meant that the in prompting the people to use the right.”71 collective sovereign, acting through rights of petition, speech, and the the people in the states, could cancel franchise to reverse ill-conceived ONLY WHEN THE PEOPLE OF A GIVEN a national law regardless of Article government action. In the exercise STATE ACTED IN COMBINATION V’s requirements for amending the of these forms of the Constitution, Constitution.67 the judiciary properly and ulti- WITH THE SOVEREIGN PEOPLE OF This constitutional authority of mately interpreted the scope of the OTHER STATES COULD THERE BE A the collective sovereign that had cre- Constitution. However, if the people LEGITIMATE CLAIM OF THE ULTIMATE ated the Constitution was obviously acted outside the Constitution’s SOVEREIGN AUTHORITY OF “THE not available to an individual state forms and exercised their power as PEOPLE.” and hence could not justify an indi- the collective sovereign, the judicia- vidual state’s veto. Any state could, ry’s determinations could not prevail. however, abdicate its constitutional As a practical matter, Madison Under Madison’s view of consti- obligations by withdrawing from the noted, the Supreme Court was tutionalism, had the people of South Union “in extreme cases of oppres- the “surest expositor” of the Carolina acted with the people of the sion.” This drew on a natural right of Constitution.70 The judiciary could other states rather than as an indi- revolution, or what Madison called a act relatively quickly to construe the vidual state, their collective nullifi- right to “cast off the yoke” of tyranni- Constitution under the forms and cation would have been an act of the cal government by exercising “origi- procedures for the operation of that sovereign that created the national nal rights.” That revolutionary step branch of government. In contrast, Constitution. Although occur- was outside the bounds of American action by the ultimate authority over ring outside of the “forms” of the constitutionalism.68 the meaning of the Constitution, the Constitution, if joined by a major- Madison described both the people collectively, was much more ity of the people of other states, that Supreme Court and the sovereign gradual. For example, it had taken action would have constitutional people as having ultimate author- that sovereign nearly two years to legitimacy. This reflected Madison’s ity regarding the Constitution’s put in place the Constitution in 1789. long-held view that the people of meaning in “the last resort.”69 This Simply because there were physical the states in their collective capac- need not be a contradiction. For difficulties in manifesting an authen- ity constituted the sovereign of the Madison, the Constitution allowed tic action by that collective sovereign national government. Only when the the judicial branch, using the forms did not preclude the power of that people of a given state acted in com- and procedures established by the sovereign to act on constitutional bination with the sovereign people of Constitution, to check and balance questions. other states could there be a legiti- the national government’s exercise The key, of course, was authen- mate claim of the ultimate sovereign of authority. Even so, the sovereign ticating an act of the sovereign. In authority of “the people.” who gave life to the Constitution did November 1832, delegates for the As unilateral defiance by one not limit its own powers as the sov- people of South Carolina gathered state, South Carolina’s nullification ereign in adopting the Constitution. in a convention and purported to presented the prospect of disunion. The sovereign could use the forms nullify the tariff as unconstitutional. Linking nullification with disunion and procedures of the Constitution They did not rely on “what are called dealt a heavy blow to the concept of

67. Ibid., p. 227. 68. Ibid. 69. Ibid., p. 231. 70. Ibid. 71. Journal of the Convention of the People of South Carolina: Assembled on the 19th November, 1832, and Again, on the 11th March, 1833 (Columbia, 1833), p. 60.

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the people as a meaningful monitor time, that the South Carolina doc- understood, interposition was inher- of the federal constitutional order. trine is an illegitimate and danger- ent in American constitutionalism President Andrew Jackson’s swift ous inference from this resolution.”76 because, as Madison put it, the sov- response to South Carolina’s declara- ereign could always—in the end—act tion made this clear. He issued a nul- MADISON AGREED WITH JACKSON outside of the “purview and forms” lification proclamation that, while THAT NULLIFICATION THROUGH of the Constitution. For Madison, acknowledging the people’s “inde- despite acting outside of such proce- feasible right of resisting acts which A SINGLE STATE’S VETO, LIKE dures, the collective sovereign of the are plainly unconstitutional and too SECESSION, WAS A “REVOLUTIONARY majority of the people of the states oppressive to be endured,”72 declared ACT,” NOT A CONSTITUTIONAL RIGHT. exercised constitutional author- that South Carolina had taken “the ity. This was distinctly different, as strange position” that a single state Ultimately, Andrew Jackson in Madison argued, from an individual could “declare an act of Congress that same month engineered a con- state deciding on its own to nullify a void” and “prohibit its execution.”73 gressional resolution of the crisis by national law—constituting a revolu- This was “incompatible with the suggesting a lower tariff with greater tionary act. existence of the Union” and “destruc- enforcement power. Congress passed Madison distinguished carefully tive” of the Constitution because the a Force Bill (enhancing presidential between interposition—groups of Union was not a “compact between authority to collect national reve- citizens or state legislatures identify- sovereign States.”74 Jackson conclud- nues) as well as a Compromise Tariff ing unconstitutional laws—and any ed, as did Webster, that a national (reducing tariff rates). After Jackson effort by individual states to nul- American people as the sovereign signed both bills, South Carolina lify such laws. A single state lacked had formed the national govern- “nullified” the Force Bill but accepted constitutional authority to nullify ment. Madison disagreed with both the Compromise Tariff. These joint national laws or secede from the Jackson and Webster on that point. maneuvers and symbolic gestures Union, Madison maintained. He con- Nonetheless, Madison agreed with effectively ended the confrontation sidered the people of the states the Jackson that nullification through a between South Carolina and the ultimate judge of the constitutionali- single state’s veto, like secession, was national government. Later that year, ty of acts of the government. A major- a “revolutionary act,” not a constitu- Calhoun judged the attempted nul- ity of the collective sovereign held tional right.75 lification a “success” and “indeed a the ultimate constitutional authority In early January 1833, some triumph” because a political major- to render national laws void or give Virginians suggested that their ity responded to the grievances of a constitutional text final meaning. state might make an ideal mediator minority.77 Because American constitutions between the national government expressed the voice of the people and South Carolina. Virginia “should Conclusion as the sovereign, the people could re-assert in the most emphatic terms Monitoring the constitutional also weigh in directly on whether our Resolutions of ’99,” especially operation of government was an government acted consistently with James Madison’s 3rd Resolution, active responsibility of all citizens their directions. Some Americans which proclaimed “the right of the and not just their elected offi- asserted that the Supreme Court States to judge and interpose for cials. As the sovereign, the people was the sole authority to determine arresting” potential constitutional who created the Constitution also questions of constitutionality, but “evil” while “declaring at the same served as its final arbiter. Properly for 18th and 19th century Americans,

72. Andrew Jackson, “[Nullification] Proclamation,” December 10, 1832, in James D. Richardson, ed.,A Compilation of the Messages and Papers of the Presidents, 10 vols. (Washington, D.C.: U.S. Government Printing Office, 1896–1899), Vol. II, p. 641 (hereinafter “Nullification Proclamation”). 73. “Nullification Proclamation,” p. 641. 74. Ibid., pp. 643 and 648. 75. Ibid., p. 649. 76. Richmond Enquirer (Richmond, Va.), January 3, 1833. 77. Fritz, American Sovereigns, p. 232.

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such a monopoly was hardly obvious could bring voters’ attention to such as political parties in a concep- or inevitable. Before the Civil War, matters that might help focus the tion of constitutionalism shared by many Americans believed that indi- exercise of the suffrage. The consti- Madison and many other Americans vidual citizens, state legislatures, and tutional guarantee of voting did not before the Civil War. ultimately the people themselves— preclude the use of more informal Whether Madison’s concept of not just the federal judiciary—played means such as interposition. interposition remains a viable and a significant role in ensuring the While interposition could be used appropriate mechanism today is a Constitution’s proper functioning. to express a view on the constitu- question that the present generation Interposition was a tool for scruti- tionality of a law, it did not preclude of Americans must decide. At the nizing the national government to the role of the Supreme Court as very least, however, Madison would ensure that it acted as desired by the interpreter of the Constitution. The have approved of a vigilant citizenry sovereign people. judicial branch continued to play participating in monitoring the fed- Interposition supplemented other an important role in monitoring eral constitutional order. devices built into the Constitution the operation of the national gov- —Christian G. Fritz, Ph.D., is itself to ensure the government’s ernment. As a supplement to more Keleher & McLeod Professor of Law responsiveness to the sovereign— formal and informal institutions (2010–2012) at the University of such as periodic elections. Like elec- of government, interposition was a New Mexico School of Law and the tions, interposition could reflect the sporadic tool available to the people author of American Sovereigns: The will of the people. Unlike elections, it when circumstances warranted People and America’s Constitutional served to clarify issues that could not the exercise of that authority. This Tradition Before the Civil War (2008). be clarified simply by voting for one informality gave it no lesser role than candidate or another. Interposition was played by other informal devices

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