However, in email conversation with Professor Kevin Gutzman, it came to my attention that I had made a fundamental misunderstanding of these Resolutions, which many others of the time did as well, including both the Federalist Party (who rejected the Resolutions due to this misunderstanding), and the Southern nullification party (who eagerly embraced the Resolutions, erroneous understanding and all).
The issue was this: Madison had said,
...this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; ... and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by said compact, the states who are parties thereto have the right ... to interpose for arresting the progress of the evil...the authorities, rights, and liberties appertaining to them.
The Federalists responded that no, the Constitution was not ratified by the states (meaning the state legislatures), but that it was ratified by the people. And as a matter of history, they were quite right; it was popular ratifying conventions, not state legislatures, that had done the ratifying.
Madison responded, in the Report of 1800 (text form, scanned reproduction) that by "state", he meant not the government of a state and its legislature, but the sovereign people of the state, as a democratic body, working through their state. In the end, this meant interposition and nullification operated pretty much the same regardless, but it made a big difference as a matter of political philosophy.
I had already been coming to a realization that something was amiss, when I read Miracle at Philadelphia recently, and saw Madison successfully argue that the ratification of the Constitution must be done by the people, popularly, and not by the states, because the people too would be directly affected by the Constitution. This was not a federal compact among states, but a national government that would operate directly on the people. Furthermore, Madison said, as the states were themselves the products of the people, they could not do anything the people had not consented to. If the people had elected the state legislatures under the Articles of Confederation, the state legislatures lacked power to alter this arrangement.
At first, I was alarmed: what would happen to interposition and nullification?! Then, I was puzzled: what happened to the Virginia Resolution that said the Constitution was a compact of states?
First, eliminating my alarm and fear, I realized that this would do no damage to interposition and nullification. Madison's argument was based on social contract theory, that a return to the "original principles" of the Declaration of Independence was needed. So it meant, at worst, that the people ratified the Constitution and that the people could un-ratify it as well. Madison was taking power from the states, not to give to the federal government, but to give to the people. Furthermore, the people could always appoint the states as their inferior magistrates, as their interposing protectors, an idea that goes back at least as far as John Calvin's Institutes of the Christian Religion 4:20:31, and continually recurs in Reformed Christian writings (such as Theodore Beza's De Jure Magistratum and the anonymous Vindiciae Contra Tyrannos). As best I can tell, in America, the states replaced the feudal hierarchies which earlier Reformed Christians had assumed would be the interposing inferior magistrates. So even if all the power went back to the people, the people could in turn re-appoint the states as their protectors against the federal government, as had been a commonplace among Reformed Christians since the mid-16th-century.
Furthermore, a friend showed me a letter by Madison to Daniel Webster. There, we read,
[T]he undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. ... The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it...This confirmed my suspicion that the people could always appoint the states as their interposing inferior magistrates. According to Madison here, the Constitution was ratified by the people working through their states. If they could work through their states to ratify, then they could work through their states to nullify.
The only question remaining was, what happened to the VA Resolution, which said that the states alone had made a compact? In the Constitutional Convention and in his letter to Webster, Madison had said one thing, but in the VA Resolution, he said something else! And the Report of 1800 is the answer. It turns out that all along, in the VA Resolution, by "state", Madison had meant the people of the state.
Dr. Gutzman told me to see the following books:
* Chapter 4 of his Virginia's American Revolution: From Dominion to Republic, 1776-1840
* His The Politically Incorrect Guide to the Constitution
* His forthcoming biography of Madison.
* William Watkins's Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy
So there you go. I made a mistake, Calhoun made a mistake, but now you won't.
33 comments:
Mike,
Thanks for this. I am going to try to re-interpret in common language what I understood.
Since the federal government didn't have power of itself, but was granted power by the states, then states have the right to nullify or challenge federal power grabs? Furthermore, since the people in the state have voted for their representatives, then, the people of the state are the ones that government is accountalbe to?
Does this mean that if a senator over a certain state has the chair of a certain committe and decides to "help his state" with federal help or programs that the Stae, i.e. the people have a right to challenge the senator and the government over such a take-over???
Federalist 39;
"Each State, in ratifying the Constitution, is considered as a sovereign body, independent of all others, and only to be bound by its own voluntary act. In this relation, then, the new Constitution will, if established, be a federal, and not a national constitution."
Madison goes on to argue that the House, with direct election by the people, will have a national character.
The Senate used to be appointed by the state legislatures, a federal character. However the 17th Amendment provides for direct election, making it national.
Come to think of it, the only thing left making it federal is the election of the President by the Electoral College!
Just one major problem with the theory of nullification: Cooper v Aaron.
For those interested in Mark's reference to Copper v Aaron.
"The Supreme Court rejected the doctrines of nullification and interposition, which had been invoked by segregationists. Segregation supporters argued that the states have the power to nullify federal laws or court rulings that they believe to be unconstitutional, and that the states could use this power to nullify the Brown decision. The Arkansas laws that attempted to prevent desegregation were Arkansas' effort to nullify the Brown decision. The Supreme Court held that the Brown decision "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation." Thus, Cooper v. Aaron held that state attempts to nullify federal law are ineffective"
Thanks Mark.
So, is this case, Cooper vs. Aaron being used against Arizona and illegal immigrants?
What are the sides in the argument from a lawyer's perspective?
Angie said, "Since the federal government didn't have power of itself, but was granted power by the states, then states have the right to nullify or challenge federal power grabs? Furthermore, since the people in the state have voted for their representatives, then, the people of the state are the ones that government is accountalbe to?"
No. According to the final reading of Madison (according to the Report of 1800), it is not that the states granted the federal government any power. Rather, it is that the people, who created the states, who in turn created the Articles of Confederation, took all their power back for themselves, and used it to create the Constitution. So power is flowing simultaneously from the people to the states and to the federal government, and both derive their powers by delegation. The people, not the states, delegated powers to the federal government.
The state governments would have power to interpose and nullify because the people have granted the states those powers. The states (meaning the people of those states) have those powers, and they delegate them to the state governments.
Tom: I assume that in Federalist #39, "state" has the same easily-misunderstood meaning it does in the VA Resolution, meaning not the state government, but the people of the state. But yes, I would understand the House and Senate as being national and federal. It is said that ignorant Progressives, who had no idea what they were doing, destroyed the delicate balance in our government.
Mark: The problem with citing the Supreme Court, is that it begs the question. Marbury v. Madison announced the idea of judicial review, and I see no problem, as judicial review was a commonplace in common law. But Marbury v. Madison never said that only the Supreme Court practices judicial review. Presumably, one valid reason for the President to veto laws is that they are unconstitutional!
If the Supreme Court ever says that it alone can nullify unconstitutional laws, then this begs the question, who gave the Supreme Court that authority to make that declaration? For the Supreme Court to announce that it alone can nullify, and to further announce that states are obligated to abide by this decision that states cannot nullify, assumes from the outset that the Supreme Court contains all the judicial authority. If, on the other hand, the states can nullify, then they can nullify a decision by the Supreme Court saying that states cannot nullify. In other words, to rely on a Supreme Court decision denying state nullification, is to assume from the outset that the Supreme Court already had total authority in the first place.
As Thomas DiLorenzo shows here, it was not until after the Civil War that anyone thought the Supreme Court alone could interpret the Constitution. Madison's and Jefferson's VA and KY Resolutions said that if anything, the states must judge constitutionality, or else the federal government will be the judge of its own powers, giving rise to a conflict of interest.
And here's a nice article by Thomas Woods: here. I'll add that during the War of 1812, Gouverneur Morris told New England and New York to secede from the Union. And the abolitionists wanted the North to secede from the Union. Lincolnites must be suffering aneurysms.
Wow, Mike! I am liking our history even MORE! And our Constitutional government!!! We don't know what we have, do we? I mean, the balance of power!
As a practical matter, nullification died when the Supreme Court refused to allow the southern states to nullify the 14th Amendment and the various civil rights statutes enacted pursuant thereof. Cooper v. Aaron ends the debate. No Supreme Court will reverse Cooper v. Aaron. It is fused into the constitutional law jurisprudence of the country, and now undergirds virtually all of the constitutional jurisprudence since it was decided. No court is going to destablize that much con-law. Sorry.
And no justice wants to be Roger Taney 2.0. No justice wants to vote for a doctrine which will result in the south returning to a regime of racial barbarism. Scalia won't vote for it. Thomas won't vote for it. Kennedy (the one justice who really counts nowadays) won't vote for it. Alito won't vote for it. Chief Justice Roberts won't vote for it. Nullification is dead, dead, dead. Thomas Woods can write books about it -- and cash in on it -- until the cows come home, but it is dead, dead, dead.
As for judicial review, that is well established by Marbury v. Madison, to name just one case. And Marbury itself was not a novum, but was built on a solid ground of Supreme Court precedent up to that point.
Even a staunch Jeffersonian legal scholar like St. George Tucker acknowledged that the Supreme Court was the decider regarding questions of constitutionality. He had no truck with the doctrine of nullification when it appeared, arguing in his legal commentaries that it was the Supreme Court that held the authority to declare a law constitutional or not, not a state acting alone.
RE: The simultaneously flowing power from the people theory.
This seems to suggest that The People, acting through their state government, can nullify laws that The People enacted through their federal government.
I assume that nullification could, or would have to, extend to the Constitution and amendments. What about the 14th equal protection clause?
When I said, "This seems to suggest that The People, acting through their state government, can nullify laws that The People enacted through their federal government," I should also have asked if The People, acting through their federal government, could nullify laws that they enacted through their state governments. Why would power flow disproportionally one way or another?
If the state acts in a tyrannical manner I should have the ability to ask the federal government to interpose on my behalf, no?
jimmyraybob,
I would think so, but what do I know about Constitutional law :)!?
Wouldn't any tyrannical power over an individual's life be accountable to the equal protections clause? Wasn't it Jefferson who said the smallest minority is the individual?
Mark, I realize no Supreme Court justice is going to rule in favor of nullification. I just meant that as a matter of fact, nullification is a valid principle, and the Supreme Court alone is not the only judge of constitutionality. The VA and KY Resolutions are correct, even if the Supreme Court will ignore them.
And apparently, nullification is not dead after all. Several states have passed laws invalidating Obamacare. Virginia is considering a bill to replace the Federal Reserve Notes with a proprietary Virginia currency of some sort. In some Midwestern counties, sheriffs have promised to arrest any federal officials who attempt to implement certain laws.
And allowing nullification will not suddenly result in racial barbarism. I don't see the south as returning to Jim Crow.
Jimmiraybob asked "if The People, acting through their federal government, could nullify laws that they enacted through their state governments. Why would power flow disproportionally one way or another? If the state acts in a tyrannical manner I should have the ability to ask the federal government to interpose on my behalf, no?"
My answer is: that's basically what people do with the 14th Amendment nowadays. Anytime a state does something someone doesn't like, the 14th Amendment is called in sooner or later.
If we hadn't had the 14th Amendment, then I don't think anyone would call in the federal government to interpose against the state. There are at least two reasons:
(1) More often than not, it will be the federal government, not the state government, that is tyrannical. The more distant the government, the more liable it is to abuse and degeneration. A state government, generally, is more secure and trustworthy than the national government.
(2) In terms of constitutional law, before the 14th Amendment destroyed federalism, the principle was that the Constitution had only limited, delegated powers, while the states had unlimited powers. The Bill of Rights applied only to the federal government. So if a state abused its citizens, people wouldn't ask the federal government for help, because the federal government was not perceived as having that jurisdiction. Instead, people would amend their state constitution to protect against the abuse in question. I suppose that conceivably, the federal government could be asked to rely on the natural law principle that a man can help another man in need even if he doesn't technically have the legal jurisdiction (if I see someone being attacked, I can defend him even though I am not a police officer), but no one ever thought of invoking the federal government like this. The federal government was seen as limited to its delegated powers, and to invoke it for aid, beyond that allowed by the Constitution, would have been seen as an invitation to tyranny. It would be like when two Hasmonean brothers in Israel invited Rome to decide which of them should be king of Israel. How do you think that ended?
More often than not, it will be the federal government, not the state government, that is tyrannical.
This, of course, has no basis in history and little merit as a proposition. State and local governments can be and certainly have been horribly corrupt and have often acted against the general welfare of their citizens and/or against the best interests and general welfare of the citizens of adjoining states.
...before the 14th Amendment destroyed federalism...
Before the 14th Amendment, federalism protected institutionalized and state sanctioned slavery. And afterward it took the further interposition of federal power to protect its citizens against institutionalized and state sanctioned Jim Crow.
...while the states had unlimited powers.
The states powers were limited by the powers delegated to the federal government. At the very least review Article I Section 10 and all three clauses starting with "No State shall...".
Or Article IV Section 4: "The United States shall guarantee to every State in this Union a Republican Form of Government."
Or Article IV, second clause: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
This has not been an exhaustive survey.
I suppose that conceivably, the federal government could be asked to rely on the natural law principle that a man can help another man in need...
No. I don't have to rely on the federal government to act voluntarily as a good Samaritan. As a citizen of the Union, I am entitled to its protection and have delegated to the federal government to act on my behalf in its capacity to establish Justice, secure the Blessings of Liberty and to provide for the general welfare within the union.
Ok, as long as we are agreed that any talk about nullification actually occurring is fantasy, and that anyone who seriously proposes nullification is divorced from reality, then I am happy to talk about it as a purely hypothetical and mythical concept that will never, ever have any application in the real world of American law. In much the same way that I like to discuss unicorns, talking rabbits and the Seahawks one day winning the Superbowl. As long as we are at that level of discussion, fine.
That established, here is my take on it. First, the declarations of 1798 never had any legal force. They were never tested in court, and as such their constitutionality was never established. Second, Madison expressly distanced himself from nullification during his presidency and thereafter. This shift by Madison is what has lead Calhoun scholar and southern nationalist historian Clyde Davis to denounce Madison as a hypocrite. Third, states can pass whatever symbolic or idiotic legislation they want, that doesn't make such legislation lawful if said legislation violates the Constitution. That's what Cooper v. Aaron is about, in part. A state could enact a statute that claims to nullify a federal statute or constitutional provision, but that would not make the state's action legal. It would be declarative ("we don't like this"), a state is free to waste its taxpayers' money on such useless declarations. But it would not be legal.
Fourth, the 14th Amendment was passed precisely to prevent states from controlling the basic civil and human rights provided not only to citizens but to all "persons" in those states. Read the actual text of the 14th Amendment, both the first and the last sections. The last section of the amendment expressly authorizes Congress to enforce the amendment with appropriate legislation -- legislation that would be enacted and enforced against the states. The simple fact is that the constitutional order was changed by the 14th Amendment. Whatever the constitutional merits of nullification when Jefferson and Madison and Calhoun were out and about trying to defend the slaveocracy of the south, the 14th Amendment precludes the view of "states' rights" that nullification requires. The 14th Amendment establishes a national community that is separate from the states -- national citizenship for example is no longer dependent on state citizenship (as it was prior to the War to Liberate the South from Slaveocracy) but now under the 14th Amendment state citizenship is now dependent on national citizenship.
Instead of "Clyde Davis," I meant "Clyde Wilson" in the earlier post. My apologies.
Fifth, the statement that states are less likely to abuse their power than the federal government simply cannot be taken seriously. The long train of blatant and barbaric violations of human rights -- of basic human decency -- carried out under color of state law in the South prior to the War to Liberate the South from Slaveocracy and from that point to the end of Jim Crow cannot be ignored. The rapes, castrations, lynchings, burnings, blindings, mutilations, assaults -- most carried out with the willing participation or acquiescence of law enforcement in the south are simply too well-documented to ignore. Trying to do so is simply a species of the same kind of delusion that leads to Holocaust denial. Strange fruit, indeed.
Mark,
I appreciate your knowledge and love for the law and our Constitution! Thanks for sharing your passion!
I also affirm your love of the law, as that was the foundation of our government, NOT people. Law was to protect citizens, not Kings, and rulers!!
...and the Seahawks one day winning the Superbowl.
That remote of a chance, huh? :)
Posted from Rams Country
Yeah, pretty remote!
I think that there is a legitimate point to be made that we need greater subsidarity in our system -- a larger role for the states and for local governments, less direct federal intervention in the economy, health care system, etc. I am not adverse to efforts to redress structural imbalances in our federalist (with a small "f") system to provide greater voice to the states as states in our national government (something that was obliterated by the 17th Amendment, btw). I think the Barnett Amendment is an interesting example of the kind of thinking that I would like to see more of in terms of trying to come up with reasonable, thoughtful responses to the problems of over-centralization in our national system. But nullification isn't such a proposal. It simply doesn't take into account the changes in the country since the 1830's.
And the last time it was proposed, during the Civil Rights movement, it was, to be frank, proposed to defend a brutal system of apartheid in our own country, a system that was defended by state and local governments, enforced by state and local law enforcement, and reinforced by a culture of intimidation, violence and murder. A culture of violence carried out by night-riders in bedsheets spreading terror against people who sought nothing more than to defend their basic rights as human beings, as American citizens, and as people of faith seeking to live out that faith in our public square.
And why would the "Lincolnites" be suffering aneurisms? Last I checked, Lincoln did not support the Hartford Convention, or efforts by abolitionists to remove New England from the Union. Lincoln was a Unionist first and foremost -- he wanted to put slavery on the road to eventual extinction while maintaining the Union at the same time. Read the Lincoln-Douglas debates to see Lincoln's position on this. Lincoln's position was a prudentially conservative one that sought to maintain, within the existing Consitutional order of his time, the Union while working to correct the abuse of natural rights constituted by slavery.
By the way, does the fact that Madison was contemplating marching an army though New England if that region had attempted succession during the War of 1812 undermine in any way the Jeffersonian/Madisonian position on states' rights?
Mark,
Yes, the South practiced slavery. But if we look at EVERYTHING that ALL the states ever did, I'm somewhat confident - not entirely sure - that we would find that on the whole, the states were less tyrannical than the federal government. Slavery is one single counter-example. An important counter-example, but hardly a good summary of the entire history of the South.
And if nullification was used to nullify law that were (at least according to natural law, if not the Constitution) just and legal and legitimate, and shouldn't have been nullified (according to natural law, at least), then that does not invalidate the principle. Just because the South used nullification in a case we wish they had not, does not invalidate the principle. That's like saying the First Amendment shouldn't be binding anymore because some people misused that right. The Declaration of Independence is clear: all men have a right of revolution, given the proper conditions.
And the 14th Amendment would merely prevent nullification of just and legitimate and moral laws (according to natural law), i.e. nullification of laws that agree with the Bill of Rights. Nothing in the 14th Amendment would prevent nullification of unconstitutional laws. The 14th Amendment merely made the Bill of Rights apply to states. This destroyed much of federalism, and is quite lamentable, I think (for example, how do you incorporate the First Amendment, when some states interpreted it as merely protecting their state churches from federal interference?), but it thankfully does nothing to impair nullification.
As for Lincoln, his letter to Horace Greeley clearly presents him as an imperialist despot who wanted nothing more than solidify the power of the Union, irrespective of the morality of this. Moral principles seem to have been the last thing on his mind. He fought to preserve the Union. By any logic - but of course, as you have shown with Madison (opposing Calhoun and planning to march on New England in 1812), not all men consistently follow logic - Lincoln should have slaughtered the abolitionists who wanted to secede just as surely as he did the Southerners. So I said that Lincolnites should be having aneurysms, because when they support the Civil War as ending slavery, I suspect that learning about Lincoln's stance on John Brown and on the secessionist abolitionists, would drive them insane as the seeing of Cthulhu.
Yes, the South practiced slavery.
It was not a benign situation and not so casually dismissed. And, with state expansion to the west, it certainly wasn't just a southern problem. The first undeclared half of the Civil War, or as I like to call it, the War of Southern Aggression, was fought in Missouri and Kansas, with slave interests fighting tooth and nail to expand the bloody institution.
As for Lincoln, his letter to Horace Greeley clearly presents him as an imperialist despot who wanted nothing more than solidify the power of the Union, irrespective of the morality of this. Moral principles seem to have been the last thing on his mind.
Saving the Union was foremost on his mind, as is befitting of his sworn position to defend the Constitution. The moral principles regarding slavery, far from being last on his mind, were a close second. This is not a closely guarded, aneurysm-inducing secret as you imply - it is well known and was prominently featured in the last Lincoln television special that I watched (PBS?).
To understand the evolution of Lincoln's incorporating the issue of slavery into his war effort, it's best to look at his relationship between him and Frederick Douglass (for instance, here and here).
I'm pretty sure that George Washington would have been our nation's first "imperialist despot" if it meant fighting to preserve the Union that so many had sacrificed and died to bring forth.
Nullification is a logically confused mess. So, what Mark said. Probably best just to go for the big kahuna, secession.
Lincoln's overwhelming concern was for liberty under the law of the Constitution. He was willing to abide by the Constitution's express provisions on slavery, so long as it was clearly understood that slavery was an evil that was on the eventual road to destruction. Lincoln's judgment was that any action undertaken to force abolition upon the south would result in far greater harm than the evolutionary fading away of slavery as it was constrained and made less viable as a moral and legal institution. Lincoln was a prudential politician, who understood that as someone who advocated conformity with the natural law principles of the Declaration of Independence, he himself could not then seek to undermine the overall authority of the legal manifestation of American independence, the Constitution.
Lincoln's reverence for the Constitution can be seen in the scope of the Emancipation Proclamation -- where he did not free all the slaves in the United States, but only those slaves in areas then in rebellion. Slavery in Kentucky, Maryland, Delaware, etc. remained intact. Lincoln also endorsed amending the Constitution to prohibit slavery, but insisted that as president and commander-in-chief he had no legal authority to end slavery as it was protected under the Constitution. Only in those areas then under armed insurrection to the legitimate authority of the federal government did he have authority as the commander-in-chief to free the slaves.
What that episode demonstrates is how Lincoln reconciled in himself his profound and enduring respect for our Constitution -- including its flaws -- and his convictions about the natural rights of all human beings. By embracing the legitimate mechanisms of constitutional change embedded in our system, Lincoln sought its improvement. Not through radical or utopian schemes, not through anarchic nullification, but through prudent statesmanship and the amendment process found within the Constitution.
This is why, btw, Lincoln is a model conservative politician -- who stands not only in the tradition of Washington but also Jefferson in this regard. Principle united with prudent statesmanship in the service of liberty protected by the rule of law. Would that every politician took that has his or her motto!
...except the Constitution never permits the President to abolish slavery in conquered areas.
"Only in those areas then under armed insurrection to the legitimate authority of the federal government did he have authority as the commander-in-chief to free the slaves."
Not in my Constitution.
How does manumission fit into Lincoln's view of freeing slaves?
As commander-in-chief, Lincoln had the right to free the slaves in areas that were under active insurrection as a military tactic. Just as the government may confiscate or destroy property during wartime in areas of combat, the government had the right to free the slaves who were held in bondage in those areas of the country in a state of insurrection against the legitimate government.
In those areas of the south that were not in such a state of insurrection -- parts of Louisiana, for example -- the Emancipation Proclamation had no effect because freeing slaves there would have exceeded Lincoln's powers as commander-in-chief.
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