FIRST PRINCIPLES FOUNDATIONAL CONCEPTS TO GUIDE POLITICS AND POLICY NO. 41 | FEBRUARY 21, 2012 Interposition and the Heresy of Nullification: James Madison 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 interposition—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 Virginia and Kentucky 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1790s and the than the desire to make symbolic particularly in the invocation of the Nullification Crisis in the 1830s— historical references that resonate doctrine of nullification and seces- clearly raised a central question of with modern audiences in order to sion as legitimate constitutional federalism: 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 Washington, 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 Hamilton 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 compact theory 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. (Philadelphia: J. B. Lippincott, 1865), Vol. IV: p. 335 (hereinafter “To a Friend of the Union and States Rights”). 2 FIRST PRINCIPLES | NO. 41 FEBRUARY 21, 2012 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-