In To Make a Nation: The Rediscovery of American Federalism, Samuel H. Beer seeks to refute James Madison’s conception of federalism. Beer traces his own, nationalistic, conception of federalism to Franklin Roosevelt, Herbert Croly, Abraham Lincoln, and James Wilson. In examining Beer’s argument, I shall first summarize it and raise questions with respect to its historical accuracy. I shall then discuss Croly and Madison, ending with a comparison of the merits of Madison’s conception with Beer’s.
1. Beer’s Argument on the Constitution’s ‘Prehistory’
Beer calls “the national idea” both a “concept of authority” that “identifies the whole people of the nation as the source of the legitimate powers of any and all governments” and a “concept of purpose” that “tells us that we are one people and guides us toward what we should make of ourselves as a people.” The national idea encompasses the sovereignty of the people and their self-government. [1] The combination of popular sovereignty and self-government yields democracy—government of, by, and for the people. Although the people are ‘unitary,’ the government is not; the government is dual or federal. “In establishing this system, the American people authorized and empowered two sets of governments—a general government for the whole, and state governments for the parts. The constitutional authority for the two sets of government is therefore coordinate.” (Beer 1).
The first section of the book, an account of the movement in political philosophy “from hierarchy to republicanism”—from Thomas Aquinas’s “rule of the wise and the holy” (1) to Benjamin Franklin’s empire of individual liberty, a journey stopping at destinations including John Milton and James Harrington—need not detain us. This journey ends with Beer’s main argument, an account of federalism as conceived by the American Founders.
Initially, he concedes, the Americans understood government as a compact. Before the Declaration of Independence, the Founders were not founders but reformers, engaged in a Franklin-like attempt to rewrite what they took to be the social contract between themselves and their king. As late as the framing of the Articles of Confederation, the Founders declared that each state would retain “its sovereignty, freedom and independence”; “while not without ambiguity, this strong assertion of state sovereignty gave comfort to advocates of the compact theory in later years” (194). However, what legal theory gave, political practice overstepped. The confederation acted as a government and as a constituent assembly, chosen not by colonial governments but by committees of correspondence and other popular modes of election. This body “authorized the creation of the states,” and then of the United States (196). The Declaration of Independence’s reference to “the good people of the several colonies” amounts to a lightly veiled reference to Whigs as distinguished from Tories, the bad people of the several colonies, both taken collectively (198). These actions justify Lincoln’s assertion that the Union is “older than any of the States, and, in fact, it created them as States” (Message to Congress, July 4, 1861, cited in Beer, 200).
Beer observes that “no colony declared its independence separately or gave itself a constitution before being authorized to do so by the Continental Congress” (200). New Hampshire delegates at Exeter asked “the advice and direction of the Congress” with regard to creating a legal government. “Congress,” Beer writes, “gave the desired authorization” (201, emphasis added). It then granted “similar authorization” to a request from South Carolina. On May 10, 1776, Beer continues, Congress adopted a general resolution “which over the following months ensured that all colonies would acquire state governments”—a declaration John Adams regarded to be tantamount to a declaration of independence (201). The formal Declaration of July 4, 1776 refers to “a people” dissolving the “political bands” that had connected them to another people. While the Articles of Confederation framed a government admittedly “based on a compact among the thirteen states,” the United States itself had already been created and declared in 1776 (202). “No more than an interstate compact today did the Articles of Confederation create a new and independent polity” (202). And the 1787 Constitution once more had recourse not to the states and their legislatures but to the people’s representatives assembled in constitutional conventions.
Beer’s argument is plausible, but slanted toward nationalism. The very manner in which he organizes his history—discussing first the Articles, then the events leading up to and including the Declaration of Independence, then back to the Articles and the 1787 Constitution—should raise suspicion. The suspicion is justified by presenting the events chronologically. When Lincoln mentions the creation of the Union by the States, he refers to the following sequence of events:
First, the Continental Congress was formed in 1774 not by colonial legislatures but by committees of correspondence (initiated by town meetings) and other informal and popular mechanisms. So far, Beer is right.
Second, at the first Continental Congress, Patrick Henry argued that British depredations had placed the colonies in a state of nature, that the colonial structure of government had dissolved. “I am not a Virginian, but an American,” he averred. But this was the minority view. Most delegates regarded Americans to be in a state of nature vis-à-vis Great Britain, but not vis-à-vis their own legislatures. [2]
Third, given these two points, the “Declaration and Resolve” of 1774 stated, “The good people of the several colonies… have severally elected, constituted, and appointed deputies” to sit in Congress (Solberg, 11, emphasis added).
Fourth, the July 1775 “Declaration of the Causes and Necessity for Taking Up Arms” states that “Our Union is perfect”; this union consists in “being of one mind resolved to die as freemen rather than to live slaves” (Solberg, 22, emphasis added). Here, union means unity of intention. This intention did not yet encompass independence, only self-defense.
Fifth, in June 1775, the Massachusetts Provincial Congress requested the “advice and consent” of the Continental Congress with respect to the crisis of civil authority precipitated by the Battle of Lexington. Congress passed a resolution recommending that Massachusetts appoint an interim government pending the King’s appointment of a governor willing to govern Massachusetts in accordance with its colonial charter.
Sixth, in 1775 the Congress recommended (not, as Beer contends, authorized) the Congress recommended (not, as Beer contends, authorized) that New Hampshire and South Carolina declare independence from Great Britain. This again reflects the “one mind” assertion, but cannot be said to imply any authority in the strong, nationalist sense Beer wants to establish. The Congress did not “create” the States as formal sovereignties. Congress urged and applauded their action.
Seventh, on May 10, 1776, Congress passed a resolution recommending that all colonial governments constitute State (i.e., independent) governments—and that all the governments be republican. Such governments, Congress stated, will “best conduce to the happiness and safety of their constituents and America in general” (Solberg 29, emphasis added). That is, Congress distinguished between the constituents of colonial governments—the people living within each of the colonies—and the people of America as a whole. This distinction is viewed as complementary, not contradictory.
Eighth, the Resolution of Independence (June 7, 1776) states that the colonies are united but not yet confederated (Solberg 32). This can only mean that “the Union,” the unitedness of the American States, is not a federal or even confederal union; at this point, there is no general government at all. The Congress is simply that: a congress.
Ninth, the final paragraph of the Declaration of Independence clearly refers to the representatives of the United States—plural—of America, in General Congress assembled, acting by the authority of “the good People of these Colonies”—again plural—to dissolve “all political connection between them and the State”—singular—of Great Britain. These are now “free and independent States”—plural.
Tenth, as Beer concedes, the Articles of Confederation was a compact between independent states; the States created the Articles. The Continental Congress, representing the “union” of the American people in the above-mentioned sense of ‘the American mind,’ had encouraged the colonies to reconstitute themselves as independent States. Under the Articles, these States would “retain” their “sovereignty” in “perpetual” union. What has been retained must be definition have existed before. Union now refers not only to the “one mind” committed to the defense of natural rights but to the confederation or “league of friendship” which is not yet fully a federal government.
Therefore, prior to the 1787 Convention, prior to the 1781 Articles of Confederation, and after the 1776 Declaration, the States were sovereign. They became sovereign by declaring their independence at the recommendation of the united American people (not the colonial governments) represented in the Continental Congress. This one, united people, divided into sovereign groups, further united formally by the Articles of Confederation, which nevertheless explicitly cited the states’ continued sovereignty. Lincoln was correct to say that the Union preceded the States. He was correct to say that the Union ‘created’ the States in the sense that “Union” meant a single “mind” or intention. this mental/moral union did not, however, create a national government. It did not even create the States as sovereign entities; they were created by the citizens of the colonies. There was one people, divided into several sovereign states. This is why Lincoln needed recourse to other arguments against secession—arguments based on natural rights, constitutionalism, and prudential reasoning.
Beer’s ‘practical’ point—that the Confederation acted in some measure like a government, despite its “rhetoric” about sovereignty (Beer 202)—is well noted. But it cannot carry the argument. The Articles’ language wasn’t rhetoric; it was treaty law. The treaty proved inadequate to perpetuate the avowedly perpetual union. Hence the need for a real government, not merely a strong treaty.
Croly’s Argument
At the outset of his book, Beer writes that he has “pretty well confirmed” the “insights” of Herbert Croly with respect to the question of “how the leading minds among the framers conceived the Constitution in general and its federal arrangements in particular” (Beer xi). He does not elaborate on what Croly’s insights were. It is therefore useful to review and evaluate those insights.
Croly speaks not in the Founders’ language of natural right but in terms of German idealism. Americans are loyal not only to “historical tradition,” he writes, but to “the imaginative projection of an ideal national Promise”—a “vision of a better future.” [3] Unfortunately, Americans conceive of their duty as consisting “fundamentally in remaining true to traditional ways of behavior, standards, and ideals” (Croly 5). “[E]ntertain[ing],” as he does, “an active and intense dislike of the foregoing mixture of optimism, fatalism, and conservatism,” Croly seeks to steel Americans to sacrifice “traditional American ways” to arouse Americans “from their patriotic slumber”—event as Kant had been aroused from his dogmatic slumber by Hume—for the task of constructing a “better future” (Croly 5-6, 21).
While popular sovereignty and representative government need not be sacrificed, in view of the new social and economic conditions imposed by concentrations of great wealth these now need to be turned “to good account” by the means of “a more highly socialized democracy” (Croly 25). Croly’s self-described “radical critique” (28) of the American regime apparently culminates in his celebrated formula, ‘Hamiltonian means for Jeffersonian ends’—ends Croly describes as “essentially equalitarian and even socialistic” (43). This German-style synthesis of apparent irreconcilables depends upon an organic-historicist-vitalist reading of American history (60, 69-70)—again, entirely consistent with German idealism. Thus: “Lincoln’s peculiar and permanent distinction as a democrat will depend rather upon the fact that his thoughts and his actions looked towards the realization of the highest and most edifying realization of the highest and most edifying democratic ideal” (74)—a formulation that elegantly elides Lincoln’s own attachment to natural rights. Citing the undeniably changed socioeconomic conditions of his contemporary America, Croly appeals not to constitutional law or to natural rights but to “national opinion” (131, 134). He praises Theodore Roosevelt as having “divined that the national principle involved a continual process of internal reformation,” a ‘permanent revolution’ of progress; Croly’s Roosevelt is “the founder of a new national democracy” (168,170). “Divined” is exactly right: for Croly, Roosevelt is not so much a statesman as a political prophet, a man of “leadership” (170). This prophet follows not so much the will of God; rather, “his intelligence has been the handmaid of his will” (174). Roosevelt’s one flaw is his continuation of the “Jeffersonian bondage,” that is, his identification of democracy “with the legal constitution of a system of insurgent, ambiguous, and indiscriminate individual rights” (172). Croly is more than helpful, indeed eager, to liberate Roosevelt from this bondage, to reinterpret his enterprise for him, and even to await the day “when a national reformer will appear who can be figured more in the guise of St. Michael, armed with a flaming sword and winged for flight” (175). In the event, Woodrow Wilson would have to do.
The Jeffersonian “principle of equal rights encourages mutual suspicion and disloyalty” (Croly 185). Croly prefers to speak not of American republicanism, with its separated and balanced power and its federalism, as of democracy—defined as popular sovereignty that is effective, not self-binding, and as equal civil (not natural) rights (178). A strong national state must be constructed to make democracy effective. Croly thus outlines a ‘soft’ or social version of Social Darwinism, distinguished from Marxism by Croly’s emphasis on the power of nationalism. But Croly isn’t entirely ‘soft’; he praises Bismarck’s deliberate provocation of war for the purpose of enhancing national unity (256), and lauds Bismarck’s rejection of “individualistic ‘liberalism'” (249-250). In America, Jeffersonian fears of governmental centralization are “absurd” (277). “[T]he Federal government belongs to the American people even more completely than do the state governments, because a general climate of public opinion can act much more effectively on the single Federal authority than it can upon the many separate State authorities” (278). But by “the people” Croly does not mean merely those who supply majorities in elections. The “true people,” as Bismarck said, are “an invisible multitude of spirits—the nation of yesterday and tomorrow, organized for its national historical mission” (280)—a sort of Burkeanism of the Left. This organized and “living movement” (282), based on “the whole complex of human powers and interests” (283), will “sanctify” the robust loyalty of American citizens (285). The ‘totalized’ movement will require a central authority to organize it: authority will go to the central government, with responsibility reserved for the states (322-323). A plebiscitary system whereby the president proposes referendum items to be voted on by the nation (with the executive himself to be restrained by the existence of a recall provision) will replace the old system of federalism, and to a decisive extent, the old system of representation (331). An “efficient national industrial policy” that extends the commerce clause of the Constitution to all levels of the economy (351-352) will serve as the economic counterpart to political centralization.
By now it should be clear that the formula ‘Hamiltonian means for Jeffersonian ends’ is fake, on both ends. Plebiscitary rule has no place in Hamilton’s thought; locating rights in ‘History’ instead of nature has no place in Jefferson’s. Croly’s “democratic scheme of moral values” is nothing less than a “religion” of “loving-kindness” (453)—but, for the first time, one with efficiency. “[T]he soil will be prepared for the crowning work of some democratic Saint Francis,” for “some democratic evangelist” who sees that democracy cannot be disentangled from an aspiration toward human perfectibility” (453-454). That sounds a bit more like Wilson.
Whatever it may be, this kinder, gentler Bismarckism bears little resemblance to the thought of the American Founders. Beer applauds Croly, and very prudently does not describe the real character of Croly’s thought. Beer’s applause does account for his selective story about the American founding, which gives historical credence to Croly’s much more forthrightly radical agenda.
Madisonian federalism
Beer devotes the final section of his book to a critique of Madison’s federalism and a celebration of James Wilson’s ‘nationalism.’ Before considering this critique, one must recall how Madison conceived of federalism.
Although many have claimed that Madison contradicted himself on federalism—veering from nationalism in the 1780s to states’-rightism in the 1790s and then back to nationalism in his last years—Madison denied any inconsistency. I maintain that he was right, that his federalism remained essentially the same throughout his career. [4]
In the forty-sixth Federalist Madison argues that both “the federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and for different purposes.” These governments are controlled by “a common superior,” “the ultimate authority” residing in “the people alone.” The people have ordained that the powers of the federal or national government be separated and derived from a mixture of national and State sources—the “compound republic” seen in Federalist 39. This compound republic crucially stipulates federal/national authority for guaranteeing republican governments in all the States: “The more intimate the nature of such a [confederal] union may be, the greater interest have the members in the political institutions of each other; and the greater right to insist that the forms of government under which the compact was entered into should be substantially maintained” (Federalist 43). That is, just as one who enters a contract will insist that the terms of the contract be maintained, so will he also insist that the contract be performed by the same person with whom he enters the contract. Here, the States are the contracting ‘persons’ or parties; each has the rightful expectation that the others will not change into substantially different ‘persons.’ The sovereignty of the States is justified only to the extent that it effects the happiness of the people; that sovereignty has been sacrificed to the extent seen in the new, compound republic, and no further (Federalist 45).
But was this the principle of the partial transfer of power from the States to the federal/national government not rejected by Madison in the 19790s, the Madison of the Virginia Resolutions? In that decade, Alexander Hamilton’s financial system raised serious questions concerning the centralization of power in the national government at the expense of the States. Characteristically, Madison’s response was nuanced. He opposed the bill establishing a national bank on the grounds that a broad construction of the Constitution’s “necessary and proper” clause resting on the doctrine of implied powers could not be sustained. The national government has “a grant of particular powers only, leaving the general mass in others hands.” “Necessary” must never come to mean “convenient.” The same argument holds against the use of the commerce clause as justification of internal improvements. Nonetheless, although Madison opposed the Bank he supported internal improvements—that is, he endorsed the substance of a major element of the Federalist (later the Whig) program. He could find no constitutional warrant for either, however, and remained consistently opposed to “broad and pliant” construction of the Constitution while supporting, against Jefferson, the constitutionality of judicial review. [5]
The Virginia Resolutions amounted to an attempt to supplement judicial review by review of national legislature by the States. Madison struck not at the national government outlined in The Federalist but at what he took to be the Hamiltonian concept of “consolidation.” Consolidating the States into one government would cause the aggrandizement of executive power at the expense of Congress because only the executive branch could regulate the vast number of matters taken over from state governments. Also, a single, national government over such a large territory and population as existed in the United States would make public opinion impossible to hear; “neither the voice nor the sense of ten or twenty millions of people, spread through so many latitudes as are comprehended within the United States, could ever be combined or called into effect, if deprived of those local organs, through which both can now be conveyed.” The national government would run on a “self-directed course, which, it must be owned, is the natural propensity of every government.” Republicanism itself would fail. [6]
The Virginia Resolutions cited “the compact to which the states are the parties” as the source of the origin of the national government. The powers of that government are “no farther valid than they are authorized by the grants enumerated in that compact, and in case of a deliberate, palpable and dangerous exercise of other powers not granted by the said compact, the states who are parties thereto have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.” By “the states” with respect to the origin of the Constitution, Madison meant “the people composing those political societies, in their highest sovereign capacity.” The judiciary must not “be raised above the authority of the sovereign parties to the constitution”; “however true… it may be that the Judicial Department, is, in all questions submitted to it by the forms of the constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts.” To claim otherwise violates “the fundamental principle of the revolution,” namely, “that the colonies were coordinate members with each other, and with Great Britain” of an empire “united by a common Executive Sovereign” but “not united by any common Legislative Sovereign.” With executive sovereignty removed, the States/ people alone retained sovereignty. There was no American common law. There is now a supreme law of the land, the Constitution, which enumerates the powers of the national government, subject to review by the states as undertaken by their only possible spokesmen for such a purpose: their governments. [7]
Madison insisted that the Virginia Resolutions and Madison’s Report of 1800 supplied no grounds either for the later doctrine of nullification nor for unilateral secession. A compact established by the peoples of the several States “as sovereign communities” does not mean that the power to review national legislation rests with the States “in their individual Characters”; that would mean that “the Constitution of the U. S. might become different in every State, and would be pretty sure to do so in some.” The United States remain one nation. The Declaration of Independence was “our National birth,” the “fundamental act of Union of these States.” The Constitution’s “true meaning” is what was understood to be such “by the nation at the time of its ratification” by the states. “Were this a mere league, each of the parties would have an equal right to expound it; and of course, there would be as much right in one to insist on the bargain, as in another to renounce it. But the Union of the States is, according to the Virginia doctrine… a Constitutional Union; and the right to judge in the last resort, concerning usurpations of power, affecting the validity of the Union, referred by that doctrine to the parties to the compact.” But this power derives “its authority from the whole not from the parts, from the States in some collective not individual capacity”; “it is the nature and essence of a compact that it is equally obligatory on the parties to it, and of course that no one of them can be liberated therefrom without the consent of the others.” “[N]o individual or set of individuals can at pleasure, break off and set up for themselves, without such a violation of the compact as absolves them from its obligations.” It was the argument of the Declaration of Independence that exactly such violations had been committed by the British king and parliament. Secession may be justified but it will always be extraconstitutional; nullification cannot be constitutional at all; the Virginia Resolutions mean that a State that objects to a national law must appeal successfully to all other parties to the compact before it can consider the objectionable law to have been overturned. In the event, of course, the seven states that replied to the Virginia Resolution unanimously opposed them; the objectionable laws, the Alien and Sedition Acts, had to await a change in the national administration in order to be repealed. [8]
A unique feature of the United States, Madison argued throughout, is divided sovereignty. “[T]he sovereignty of the people of the States” was divided “between the States in their united and the States in their individual capacities that as the States, in their highest sovereign character, were competent to surrender the whole sovereignty and form themselves into a consolidated State, so they might surrender a part and retain, as they have done, the other part, forming a mixed Government with a division of its attributes as marked out in the Constitution.” The Nullification doctrine asserts the opposite: that sovereignty remained within each State, and that the States “acted as indivisible sovereignties” in forming the Union. But if this were the case, either with respect to the original social contract or the constitutional compact among the States, majority rule could not prevail; or, alternatively, the majority could prevail over every right of the parties to the compact. But majority rule can and does prevail in societies where the reserved rights of the contracting parties are nonetheless preserved. Sovereignty “resides not in a single state but in the people of each of the several states, uniting with those of the others in the express and solemn compact which forms the Constitution. To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.” “Had it been formed the people of the U. S. as one society, the authority could not have been more competent, than that which did form it; nor would a consolidation of the people of the States into one people, be different in validity or operation, if made by the aggregate authority of the people of the States, than if made by the plenary sanction given concurrently as it was in their highest sovereign capacity…. Whether the centripetal or centrifugal tendency be greatest, is a problem which experience is to decide….” Those who would run to either extreme of consolidation or mere confederation “aim a deadly blow at the last hope of true liberty on the face of the Earth”—words Lincoln paraphrased some twenty-five years later. [10]
Beer’s Critique of Madison
In support of his claim that the Constitution of 1787 is a ‘nationalizing’ document, Beer cites the well-known statement of Patrick Henry at the Virginia ratifying convention—that “We the People” in the Constitution’s Preamble means the people of America taken in one mass (Beer 254). He ignores Madison’s reply: the Preamble does not say, “We the people of the States of New Hampshire, Massachusetts, Rhode Island….” and so on because no one at the Philadelphia convention had known if all the States would ratify the new constitution. Madison further said that “We the People” refers to “the people as composing thirteen sovereignties.” [10]
In Philadelphia, far from eschewing compact theory, Madison had refined it. He distinguished two kinds of compact: the league or treaty and the Constitution. Treaties are compacts between or among sovereign states specifying “certain duties to which the parties were to be bound, and certain rules by which their subjects were to be reciprocally governed in their intercourse”; such a treaty may be founded on the ratification of legislatures and may be morally inviolable but politically weak, in that “a breach of any one article by any of the parties, frees the other parties from their engagements.” Compacts forming constitutions create “an authority… paramount to the parties, and making laws for the government of them”; these are not only morally but politically inviolable, and so a breach of the compact by one part does not necessarily free the other parties from their engagements.” [11] This supports the “partly national, partly federal” concept of the American system enunciated by Madison in Federalist 39. As a constitutional compact, the 1787 Constitution issues from all the States as sovereign peoples—and thus from the American people as a whole—but it limits the powers of the State governments.
Beer claims that Federalist 39 contradicts Madison’s own argument made only a few numbers later, in Federalist 46. There Madison describes both national and state governments as “substantially dependent on the great body of the citizens of the United States.” “The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers and designed for different purposes.” This discrepancy is a “fatal gap in Madison’s reasoning” (Beer 314-316). But there is no contradiction at all. The more States ratify the Constitution, the more the people as a whole have exerted their sovereignty in perfecting their union of sovereign States. In perfecting that union, they have taken some of the sovereign powers they exercise through the States’ governments and transferred authority for certain acts—regulating commerce, making treaties, and so on—to the national government. Obviously, the Framers of the Constitution do not envision an intrusion of the national government, representing the sovereign people as a whole, into areas still reserved for the States. The sovereignty of the people within each State does not contradict the sovereignty of the American people as a whole. If it did, the language of the Declaration, referring to “the good People of these Colonies would have made no sense to its authors. It is rather Beer who contradicts himself in discussing the “rule of nine” whereby the 1787 Constitution was to be enacted if nine States ratified it (Beer 339). The rule of nine clearly implies that any States ratifying the Constitution would remain sovereign, as they were under the Articles of Confederation.
Madison’s treatment of union in Federalist 39 and in the writings of his old age are correct. These arguments are not contradicted by the writings of his ‘Jeffersonian’ period. The Webster-Lincoln argument goes too far with respect to the “course of events” in the 1770s and 1780s. However, in conjunction with Lincoln’s other arguments—based on natural rights, constitutionalism, and prudential reasoning—Lincoln’s defense of the Union is decisive against the secessionists.
Conclusion
Having said all this, the obvious question is, So what? Does it make any real difference to endorse Madison’s dual sovereignty as distinguished from Crolyan uniate sovereignty?
It makes a difference to historians, clearly. Madison’s account is noticeably more faithful to the events of the founding period and to the stated intentions of the Founders. The Madisonian account requires no German intellectual imports such as Idealism and Hegelian historicism in order to justify it. Nor does Madisonianism require a democratized version of Burke to justify itself. Madisonianism stands squarely with natural-rights political thought as seen in the Declaration of Independence and other authoritative documents of the founding period.
In a practical, political sense, Madisonian compact theory no less than Crolyism annuls nullification and precludes secession as a constitutional—though never of course as a natural—right. Madisonian compact theory in no way allows the States to tie the hands of the federal government. If anything, the review process promoted by the Virginia Resolutions is much too cumbersome to work as an effective check on any but the most blatant and unpopular encroachments on the States’ powers, as Madison and Jefferson themselves discovered. In a nation not of fifteen but of fifty states, the impracticability of intercession is all the more obvious. The normal political process is really the only way to trim the wings of the national state. Indeed, any encroachment so unpopular as to raise the ire of all fifty States would likely be too unpopular to be enacted in the first place.
The revival of the Madisonian doctrine might have some rhetorical utility for those who, in the face of strong pressures from the national government, desire to strengthen federalism. To the extent that the intentions of the Founders may count for anything politically, Madison’s argument might be helpful for that purpose.
Notes
- Samuel H. Beer: To Make a Nation: The Rediscovery of American Federalism. Cambridge: Harvard University Press, 1993, p. 1. Subsequent page references in text.
- Cited in Winton U. Solberg, ed.: The Federal Constitution and the Formation of the Union. Indianapolis: The Bobbs-Merrill Company, 1958, p. lxii. Subsequently cited as “Solberg.”
- Herbert Croly: The Promise of American Life. Cambridge: Harvard University Press, 1965, p. 3. Originally published in 1909. Subsequently cited as “Croly.’
- My argument has been anticipated by Leonard R. Sorenson: Madison on the “General Welfare” of America: His Consistent Constitutional Vision. Lanham: Rowman and Littlefield, 1995.
- Speech on the Bank Bill, United States House of Representatives, February 2, 1791, in Robert A. Rutland et al., eds: The Papers of James Madison XIII. 374-378. See Sorenson 50-61; Veto Message, March 3, 1817, in Gaillard Hunt, ed.: The Writings of James Madison VIII. 388; Letter to James Monroe, November 11, 1817, WJM VIII. 397; Letter to Spencer Roane, September 2, 1819, WJM VIII. 450; Letter to Thomas Jefferson, June 27, 1823, WJM IX. 142-143.
- “Consolidation.” Essay in the National Gazette, December 3, 1791, PJM XIV. 138.
- Virginia Resolution, PJM XVII. 189; The Report of 1800, January 7, 1800, PJM XVII. 309-312, 315-316; 327-328.
- Letter to Spencer Roane, June 29, 1821, WJM IX. 66; Letter to John G. Jackson, December 27, 1822, WJM IX. 74; Letter to Thomas Jefferson, September 6, 1823, WJM IX. 156; Letter to Thomas Jefferson, February 8, 1825, WJM IX. 221; Letter to Joseph C. Cabell, September 7, 1829, WJM IX. 347-348; Letter to N. P. Trist, February 15, 1830, WJM IX. 354-355. Thus Madison explicitly refuted the arguments of Senator Robert Y. Haynes, the pro-nullification senator to whom Senator Daniel Webster made his celebrated “Reply” (Letter to Robert Y. Haynes, January 19, 1830, WJM IX. 388-391) and he praised one of Webster’s speeches against nullification as “crushing” to that doctrine (Letter to Daniel Webster, March 15, 1833, WJM IX. 604-605).
- “Sovereignty” (unpublished essay, 1835), WJM IX. 568-572; “Notes on Nullification” (unpublished essay, 1835) WJM IX. 575-576, 603, 606.
- Eliot, Jonathan, ed.: Debates on the Adoption of the Federal Constitution, Philadelphia: J.B. Lippincott, 1845.
- Madison, Speech at the Constitutional Convention, Philadelphia, June 28, 1787, Farrand, Max, ed.: The Records of the Federal Convention (4 volumes, New Haven: Yale University Press, 1966), I. 446; Speech at the Constitutional Convention, Philadelphia, July 23, 1787, Ibid. II. 93.
Recent Comments