The Constitutionality of Nullification: What the Framers ...
Beyond Myths: (Madisonian, Federalist, Liberal, and Nationalist)
The Constitutionality of Nullification What the Framers Really Intended, 1787-1800Within a year after Congress adopted the Bill of Rights in December of 1791 (as mandated by many of the states as a condition of their ratification of the Constitution), Thomas Jefferson wrote a most remarkable letter to James Madison. Dated October 1, 1792, Jefferson's missive contained the interesting and intriguing phrase "the counter-rights of the states" as follows:
I have reflected on Govr. Lee's plan of opposing the Federal bank by setting up a state one, and find it not only inadequate, but objectionable highly, and unworthy of the Virginia assembly. I think they should not adopt such a milk and water measure, which rather recognises than prevents the planting among them [of] a source of poison and corruption. . . .The assembly should reason thus. The power of erecting banks and corporations was not given to the general government [but] it remains. . .with the state itself. For any person to recognise a foreign legislature in a case belonging to the state itself, is an act of treason against the state, and whosoever shall do any act. . .shall be adjudged guilty of high treason and suffer death accordingly, by the judgment of the state courts. This is the only opposition worthy of our state [to convict of high treason and sentence to murder anyone found guilty of acting against the state on behalf of the federal bank], and the only kind which can be effectual. If N. Carolina could be brought into a like measure, it would bring the General government to respect the counter-rights of the states. [Italics added and enlarged] The example would probably be followed by some other states. I really wish that this or nothing should be done.
Madison's laconic reply is equally revealing. "Your objections to it [the branch bank] seem unanswerable." Later, during the first Nullification movement in Virginia, Madison had this telling comment about organizing an opposition to Alexander Hamilton's ambitious fiscal and economic plans: "the spirit of party revenge," he wrote to Jefferson, "may be wreaked thro' the forms of the Constitution."1
Although included in the modern edition of The Papers of Thomas Jefferson and reproduced in James Morton Smith's recent collection of the Jefferson-Madison correspondence, neither editor indicates anything unusual or out of the ordinary about this letter or its phraseology. As suggested here, however, that telling phrase highlighted above is just another way of saying "Nullification" or "State Interposition" albeit expressed in the heightened political language of the early 1790's so soon after the ratification of the Constitution. Could it be that Nullification was constitutional and a legitimate principle of republican and federal government in America, after all? Proving this central proposition is what this article is all about (readers should note that Jefferson alluded to Nullification as a general principle with respect not to civil liberties but to the problematical issue of banks and their constitutionality). What is more the claim is made that James Madison was the "father of Nullification" in Virginia.2
In the process, to say the least, questions are raised about long-accepted nationalist views of the Constitution, the flawed Madisonian analysis (that is only of late 20th century origins), and who the framers were (not the Federalists). For that matter, the historiography of Nullification taken as a whole, including the roles of James Madison and Thomas Jefferson in the formation of the Republican (Whig) party in the 1790's and the formulation of the principles of 1798-1799, does not add up to a satisfactory or a coherent analysis either. Besides treating the subject separately as various manifestations of a negative if not un-American sectionalism, most historians have dismissed Nullification outright (along with states' rights and the compact theory of government" as a "bastard doctrines" beyond the Constitution. In the case of Jefferson and Madison, however, they have excused their participation in the Virginia Nullification movement either as a defense of civil liberties (even if the means to that end were of dubious constitutionality) or as mere propaganda for electioneering purposes. Here, too, is the origin of the myth of Nullification in Virginia being different from later movements in New England and South Carolina so as to distance Jefferson and Madison from later and presumed reactionary or sectional manifestations of the doctrine.3
James M. Banner, Jr., however, suggests that Nullification sentiments existed in New England prior to 1798 and that they in fact were based on the view of the union as a compact of the states. In the 1790's, according to Forrest McDonald, many were of the opinion and declared so "that the states could interpose their power" between their citizens and the federal government. More recently, Kevin R. Gutzman has looked anew at Madison's inconsistencies from 1787 to 1836 (how he viewed the nature of the union together with his switch from Nullifier in 1799-1800 to anti-Nullifier from 1828-1833) while agreeing with the author that the principles of 1798-1799 were legitimate expressions of original intentions in defense of the republic.4
The key to this reconstruction of the past, ironically, is to be found in none other than the "Notes of Debates" recorded by James Madison during the Federal Convention of 1787. Accepted by all scholars of the founding era as authentic and authoritative relative to the intentions of the framers, Madison's "Notes" nevertheless contain similar phrases as do the debates in the state ratifying conventions. Taken together, a chain of documentary evidence emerges that explains Jefferson's 1792 letter and the later Virginia and Kentucky resolutions of 1798 and 1799 in light of the Constitution and its ratification. Not only was the idea of Nullification as a state negative or veto raised within the Federal Convention, it was also deemed to be an integral part of an evolving understanding of federalism and the concept of checks and balances to assure separation of powers within the new American government (by function, legislative, executive, and judicial) and between governments (federal or national and state).5
As will be amply demonstrated below, the issue of a state veto became with the rights of states themselves the two major problems not resolved at Philadelphia and ultimately the core of the ratification debate and thus the dispute between Federalists and anti-Federalists. In the language of that time, the debate was about drawing a line of demarcation between the powers of the federal government to be and those of the states as well as providing a necessary check or balance by which the states could positively protect their rights against encroachment. Therein is to be found as well another and overlooked theory of the extended republic that was both more consistent with republican ideology and more federal in nature.6
So much for the myths of James Madison as "the father of the Constitution" and The Federalist as being the last word about the intentions of the framers. Thus the title above and the need to go beyond the myths indicated and look anew at the creation of the American republic. In retrospect, the anti-Federalists deserve the title of "framers of the Constitution" for they were the ones who demanded amendments resulting in the Bill of Rights including the Tenth one that made our new government neither national (as proposed by Alexander Hamilton and James Madison) nor a "quasi-federal" one (the plan reluctantly accepted on the part of the nationalists who agreed to the Great Compromise of July 16, 1787 that provided for state representation in the Senate. Hence the respective and historically accurate terms of "Federalists" (those who supported the plan of government as reported from Philadelphia in September of 1787) and "anti-Federalists" (those who in increasing numbers opposed the limited federalism of 1787).7
The implication, of course, is that The Federalist has been overrated as the authoritative explication of the constitution's origins and meaning. Unlike most other scholars, Prof. Murray Dry credits the anti-Federalists with having clear and coherent principles that are "more relevant to an understanding of the American founding and American polity. . .than has usually been supposed." They are "entitled, then, to be counted among the Founding Fathers." Moreover, he observes, "the Constitution that came out of the deliberations of 1787 and 1788 was not the same Constitution that went in. . . ." Could it be that historians of a liberal and nationalist bias have not been completely honest in recounting what happened more than 200 years ago regarding the Constitution and its ratification? Apparently, this is the case indeed and it began, ironically, with Mr. Madison himself as well be explored at the end of this article.7
The Bill of Rights, it seems to be forgotten, was as much about states' rights as personal liberty and without guarantees for the protection of both, the proposed government of 1787 would not have been adopted. Nor would it have been a federal republic. On this point, the anti-Federalists were not opponents of the constitution but perfecters of it. Nor were they "men of little faith" since a dark view of human nature generally prevailed at the time. At the same time, the views expressed in the Kentucky and Virginia Resolutions and the Virginia Report of 1800 (the latter two authored by Madison) were not altogether new creations beyond the meaning of 1787. To the contrary, they simply expressed the original republican consensus in favor amendments to the constitution and the language used ("union of the states," "consolidation," "compact," "state sovereignty" as a reserved right, and drawing a "line of partition" between powers delegated and not) can all be found in the debates of 1787-1788. After all, the aim of the framers was to create an effective and a limited government in keeping with their radical Whig-republican principles of 1776.8
Since what follows is so contrary to accepted historical orthodoxy about 1787 and 1798-99, extensive quotes from relevant sources will be presented for documentary purposes. To do otherwise would only raise doubts about the author's interpretations. The evidence speaks for itself as does its impact on our understanding of later American and Southern history especially with respect to the nature of the Union whose meaning was not ambiguous to contemporaries. The government of America was a federal republic and a union of the states not the states united.9
Radical Whig-Republican Ideology: Reality versus MythWhile the evidence to be presented is certainly not new, there is a new way of looking at it and this is where republicanism comes into the story. When Bernard Bailyn, Gordon S. Wood, and other scholars recovered our original radical Whig-republican beliefs as a people, they did more than reinterpret early American history and thought. They literally cut through a "myth of democracy" that had been developed since the early national and antebellum eras and which made the framers and the Constitution more liberal and nationalist than they were. Although associated with Louis Hartz and the Consensus school of the 1950's and 1960's, the "myth of democracy" (as I call it) or the notion that American was born modern, liberal, egalitarian, and fully unified as a nation actually originated before the Civil War primarily by Northern historians of the Revolution and the Constitution. The impetus here was the need to legitimize the North's embrace of newer "isms" of the 19th century which is what happened with the democratization and nationalization of the past.
Here's how Joyce Appleby has described the liberal myth of democracy: "For a long time American historical writing simply explained how the United States became the territorial embodiment of liberal truths" which she identifies as the extension of suffrage, representation, the perfection of the two-party system, capitalism, and democracy. Originating in the "English philosophical tradition of Bacon, Locke, and Newton," liberalism then passed on to America. "Thus, the authors of the Federalist Papers became the true heirs of Locke, and America's democratic statesmen the practical interpreters of Adam Smith." (Appleby, Liberalism and Republicanism in the Historical Imagination [Cambridge, MA, 1992], 3 but see all of chap. one (pp. 1-33).
Referring to the Antifederalists, Appleby notes as follows: "Their views have not, like those of the Federalists, lived on to be incorporated within the history of a success. . . .[T]heir writings are reminders that other constitutions could have been written. Like the history of science, the history of the United States Constitution has been largely written as the history of its progress." (Liberalism and Republicanism in the Historical Imagination, 222.) "With the rejection after the Civil War of the concept of the Constitution as a compact of states," moreover, "constitutionalism merged with historicism to form the American variant of immanent values unfolding in space and time. Here again the haze of veneration that obscures the original reception of the Constitution hides as well the conceptual problems involved in integrating the Constitution into the didactic traditions of eighteenth-century America." (Ibid., 227.)
Another critic of the liberal myth of democracy is Anne Norton. As she notes, in Alternative Americas: A Reading of Antebellum Political Culture (Chicago, 1986), pp. 2-16 there was a liberal myth before Louis Hartz (The Liberal Tradition in America [New York, 1955] and invariably it excluded the South. "For Hartz the South was the 'alien child in the liberal family' . . . ." (Ibid., 3.) Prof. Norton, moreover, agrees with the author in that the liberal myth of democracy was of Northern and Puritan origin. "The mythic history of this America begins in Scripture and, through the Puritans, leads inexorably to industrial capitalism." (Ibid., 5.)
Writing in 1890, G. W. Hazleton commented that "It must be assumed that the statesmen who grasped the great problem which confronted them in 1789 clearly saw the necessity of a national organization. . . ." ("Federal and Anti-Federal," in the Magazine of American History, XXIII [January-June, 1890], 26-38, quote on 37.) A reviewer of George Bancroft's History of the Formation of the Constitution had this intriguing thought: "Many of the ideas set forth in the convention. . .appear sufficiently curious in our own day, and show the jargon out of which that instrument sprang into being." (B.F. Da Costa, Magazine of American History, VIII, 669-679, quote on 674. That "jargon," of course, is as we now know republican ideology. Da Costa also accused "Calhoun and his co-laborers" of playing "fast and loose with the Constitution. . . ." (Ibid., 672.)
It is this same "republican synthesis" that provides the missing clue to what happened in 1776 and 1787 and what has been lacking heretofore has been an appreciation of the founding generation's preoccupation with the abuse of political power. It is this context that makes clear the underlying concern for separation of powers, strict construction, and above all the rights of states. It also reminds us that republican ideology is still relevant for the creation of the American republic as well as for later American and Southern history despite being declared dead as a meaningful concept.9
1787 and the Rights of StatesThe first debate in the federal convention, and the most important one because it led to the defeat of the highly nationalist Virginia Plan (really Madison's) and made states' rights one of the highest priorities, was that between small and large states from May 30 until the Great Compromise of July 16. If the proposed government was not to be national nor a confederation as of old, how were the states to be incorporated into the structure of the new republic? What rights would they have now that they would no longer be independent and sovereign? Dr. Samuel Johnson summed up the situation very neatly on June 21 (Notes of Debates, 163):10
On a comparison of the two plans which had been proposed from Virginia & N[ew] Jersey, it appeared that the peculiarity which characterized the latter was its being calculated to preserve the individuality of the States. The plan from Va. did not profess to destroy this individuality altogether, but was charged with such a tendency. One Gentleman alone (Col. Hamilton) in his animadversions on the plan of N. Jersey, boldly and decisively contended for an abolition of the State Govts. Mr. Wilson & the gentlemen from Virg[ini]a who also were adversaries of the plan of N. Jersey held a different language. They wished to leave the States in possession of a considerable, tho' a sub- ordinate jurisdiction. They had not yet however shewn how this c[oul]d consist with, or be secured ag[ain]st the general sovereignty & jurisdiction, which they proposed to ive to the national Government. If this could be shewn in such a manner as to satisfy the patrons of the N. Jersey propositions, that the individuality of the States would not be endangered, many of their objections would no doubt removed. If this could not be shewn their objections would have their full force. He wished it therefore to be well considered whether in case the States, as proposed, sh[oul]d retain some portion of sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Gen[era]l Govt., without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils.
No Miracle at PhiladelphiaAnother myth besides that of Madison being the "father of the Constitution" is that of a "miracle at Philadelphia." Such were the conflicting interests to be accommodated in 1787, it has been argued, that any agreement at all was quite an achievement. Nothing could be farther from the truth. All agreed that a new government was necessary to preserve liberty in America. All agreed that the federal government needed enlarged powers at least in certain areas. Since a national government was out of the question and the Confederation government was obviously defective, the path to be taken was pretty much pre-determined. Put another way, compromise should have been easier than it was.11 The essential point was twice made by Charles Pinckney on June 16 and June 25 (Notes of Debates, 127, 187):
The whole comes to this, as he conceived. Give N[ew] Jersey an equal vote, and she will dismiss her scruples, and concur in the Nati[ona]l system. . . .
All that we have to do then is to distribute the powers the Govt. in such a manner, and for such limited periods, as while it gives a proper degree of permanency to the Magistrate, will reserve to the people, the right of election they will not or ought not frequently to part with. I am of the opinion that this may be easily done; and that with some amendments the propositions before the Committee the [Virginia and New Jersey plans] will fully answer this end.
Oliver Ellsworth and Benjamin Franklin said very much the same thing five days later using more home-spun and pragmatic language: "We are razing the foundations of the building, when we need only repair the roof." (Notes of Debates, June 30, 223.) "The diversity of opinions turn on two points. If a proportional representation takes place, the small States contend that their liberties will be in danger. If an equality of votes is to be put in place, the large States say their money will be in danger. When a broad table is to be made, and the edge of the planks do not fit, the artist takes a little from both, and makes a good joint. In like manner here both sides must part with some of their demands, in order that they may join in some accommodating proposition." (Notes of Debates, June 30, 227.)
Nationalists to BlameIf it was known what had to be done, why did the business of the convention drag on and almost come to a complete stop? To William Paterson and other small-state delegates, the blame lay squarely with the nationalists (James Madison, Alexander Hamilton, James Wilson, and Gouvernor Morris).12
"Mr. Strong. . . .It is agreed on all hands that Congress are nearly at an end. If no accommodation takes place, the Union itself must soon be dissolved. . . .He thought the small States had made a considerable concession in the article of [on] money bills; and that they might naturally expect some concessions on the other side." (Notes of Debates, July 14, 293.)
"Mr. Patterson [Paterson], thought with Mr. Randolph that it was high time for the Convention to adjourn that
the rule of secrecy ought to be rescinded, and that our Constituents should be consulted. No conciliation could be admissible [sic] on the part of the smaller States on any other ground than that of an equality of votes in the 2d branch. If Mr. Randolph would reduce to form his motion for an adjournment sine die, he would second it with all his heart." (Notes of Debates, July 16, 299-300.)
"Mr. Rutledge could see no need of an adjourn[men]t because he could see no chance of a compromise. The little States were fixt. They had repeatedly & solemnly declared themselves to be. All that the larger States then had to do, was to decide whether they would yield or not. . . .Had we not better keep the Govt. up a little longer, hoping that another Convention will supply our omissions, than abandon every thing to hazard. Our Constituents will be very little satisfied if we take the latter course." (Notes of Debates, July 16, 300-301.)
The New American Idea of Checks and BalancesWhat the small states wanted, of course, was protection for the rights of states in the form of a negative. Such an idea, it was argued, was consistent with the new American theory of checks and balances. Here's how James Madison explained it, a good summary of which is provided in his discussion of a "Council of Revision" as a possible check on the Executive or President.
Mr. Madison could not discover in the proposed association of the Judges with the Executive in the Revisionary check on the Legislature any violation of the maxim which requires the great departments of power to be kept separate & distinct. On the contrary he thought it an auxiliary precaution in favor of the maxim. If a Constitutional discrimination of the departments on paper were a sufficient security to each ag[ain]st encroachments of the others, all further provision would indeed be superflous. But experience had taught us a distrust of that security; and that it is necessary to introduce such a balance of powers and interests, as will guarantee the provisions on paper. Instead therefore of contenting ourselves with laying down the Theory in the Constitution that each department ought to be separate & distinct, it was proposed to add a defensive power to each which should maintain the theory in practice. [Italics added] In so doing we did not blend the departments together. We erected effectual barriers for keeping them separate. . . .(Notes of Debates, July 21, 340-341.)
James Madison: "If it be a fundamental principle of free Govt. that the Legislative, Executive, & Judiciary powers should be separately exercised, it is equally so that they be independently exercised." (Notes of Debates, July 19, 326.)
In the above analysis, Madison underscored one of the lessons learned since 1776. The old idea of separation of powers as propounded by Montesquieu had to be improved. Paper barriers did not prevent the abuse of power be it by rulers or by the people. A positive power of self-defense was essential to preserve the independence of the departments of government.13
A State Negative LogicalWhile scholars have long celebrated our system of checks and balances, and devising the proper ones was what the federal convention was all about, they have failed to appreciate that this great innovation in political science was also meant to apply to the states as well. To illustrate this most crucial insight, I offer the following quotes:
Doct[o]r Johnson. . . .The fact is that the States do exist as political Societies, and a Govt. to be formed for them in their political capacity, as well as for the individuals composing them. Does it not seem to follow, that if the States as such are to exist they must be armed with some power of self-defence. This is the idea of [Col. Mason] who appears to have looked to the bottom of this matter. Besides the Aristocratic and other interests, the States have their interests as such, and are equally entitled to likes [sic] means. . . .(Notes of Debates, June 29, 211.)
Mr. Elseworth [sic; Ellsworth]. . . .The power of self- defence was essential to the small States. Nature had given it to the smallest insect of the creation. . . . (Notes of Debates, June 29, 218.)
Mr. Elseworth [sic; Ellsworth]. the U. S. are sovereign on their side of the line dividing the jurisdictions____ the States on the other____each ought to have power to defend their respective Sovereignties. (Notes of
Debates, August 20, 493.)
Not one of the above framers, it should be noted, was Southern. All represented Northern states and interests. Nor can the concern for states' rights be attributed to the need to protect slavery (as most historians have concluded in order to diminish the validity of what was and is a fundamental principle of limited and balanced government).14
Clearly and unambiguously, then, a state negative was contemplated by the framers. The idea was explicit in the debate between the large and small states over the composition of the Senate with the latter insisting that the second branch of the national legislature ought to represent States and that they each, respective of size and wealth, be given an equal vote.15 The rationale here was made clear by Roger Sherman on July 14 (Notes of Debates, 291)when he "urged the equality of votes not so much as a security for the small States; as for the State Govts. which could not be preserved unless they were represented & had a negative in the Gen[era]l Government." [Italics added]
"Doct[o]r Johnnson. . . .He wished it therefore to be well considered whether in case the States, as was proposed, sh[oul]d retain some portion of their sovereignty at least, this portion could be preserved, without allowing them to participate effectually in the Genl. Govt., without giving them each a distinct and equal vote for the purpose of defending themselves in the general Councils." (Notes of Debates, June 21, 163.)
The idea of a positive power of self-defense on the part of the states did not end with the Great Compromise of July 16 giving states representation in the Senate and an equal vote (Notes of Debates, 297-301). It continued within the convention but became subsumed under another critical albeit neglected debate, that of drawing a line of demarcation between federal and state powers (the terminology here will be important later when the first Nullification movement is discussed). Again, contemporary quotes are presented for purposes of documentation.
Mr. Sherman who took his seat today [May 30], admitted that the Confederation had not given sufficient power to Cong[res]s and that additional powers were necessary; particularly that of raising money which he said would in- volve many other powers. He admitted also that the General & particular jurisdictions ought in no case to be concurrent . . . . [Italics added] (Notes of Debates, May 30, 35.)
Mr. Dickenson [sic; Dickinson] deemed it impossible to draw a line between the cases proper & improper for the exercise of the [national ] negative [proposed by James Madison]. We must take our choice of two things. We must either subject the States to the danger of being injured by that of the Natl. Govt. or the latter to the danger of being injured by that of the States. He thought the danger greater from the States. To leave the power doubtful, would be opening another spring of discord, and he was for shutting as many of them as possible. (Notes of Debates, June 8, 91.)
"Mr. Sherman observed that it would be difficult to draw the line between the powers of the Genl. Legislatures, and those to be left with the States. . . ." (Notes of Debates, July 17, 302.)
To cut short a long and complicated story, the matter of rights to be reserved to the individual states remained a sticking point. That it would become one of the critical issues during the ratification process was highlighted in the convention's last days by those already expressing objections to the proposed new government for the United States.16
From Federalism to Confederalism: The State Ratification Debates and the Drawing of A Line of DemarcationJust as states' rights (including the idea of a negative or a positive power of self defense) were of central concern within the Federal Convention of 1787, so too did they continue to be an issue in the state conventions called to debate the proposed new government. A sample of quotes follows:17 "Are not the terms, common defence and general welfare, indefinite, undefinable terms? What checks have the state governments against such encroach ments?" [Italics added] (Mr. Williams of New York, June 27, 1788, in Elliot, ed., Debates, II, 321.)
"Congress. . .is to be considered as only a part of a complex system. The state governments are necessary for certain local purposes. The general government for national purposes. The latter ought to rest on the former, not only in its form, but in its operations. It is therefore of the highest importance that the line of jurisdiction should be accurately drawn . . . ." [Italics added] (Mr. Melancton Smith of New York, June 27, 1788, in Elliot, ed., Debates, II, 316.)
"Let us be cautious how we divide the states. . . .[D]on't let us grow too fast, lest we grow out of shape." (Mr. Thompson of Massachusetts in Elliot, ed., Debates, II, 99.)
"But may not some middle course be struck, some plan be adopted to give the general government those rights of internal legislation necessary for its safety, and well being. . .and yet leave to the states other powers they might exercise to advantage?" (James Monroe, "Observations on the Constitution," in Stanislaus M. Hamilton, ed., The Writings of James Monroe [7 vols., New York: G. P. Putnam's Sons, 1898], I, 320-321.)
"I think the State retains all the Right of Sovereignty which it has not expressly parted with to the Congress of the United States. . . ." (Samuel Adams to Elbridge Gerry, August 22, 1789, in Harry A. Cushing, ed., The Writings of of Samuel Adams, [4 vols., New York: G. P. Putnam's Sons, 1904-1908], IV, 330-332.)
"Those whom I call the best___the most judicious & disinterested Federalists, who wish for the perpetual Union, Liberty & Happiness of the States & their respective Citizens, many of them if not all are anxiously expecting them [amendments]. They wish to see a Line drawn as clearly as may be, between the federal powers vested in Congress and the distinct Sovereignty of the several States . . . .Without such Distinction there will be Danger of the Constitution issuing imperceptibly and gradually into a consolidated Government over all the States." (Ibid., August 22, 1789 in ibid., IV, 330-332.)
Despite assurances by nationalists that the rights of states were secured under the proposed government, true federalists and republicans nevertheless insisted on amendments to preserve the states and the all essential power of self-defense.18
"The government unaltered may be terrible to America; but it can never be loved, till it be amended." (Patrick Henry of Virginia in Elliot, ed., Debates, III, 537.)
"We must have amendments as will secure the liberty and happiness of the people on a plain, simple construction, not on doubtful ground. We wish to give the government sufficient energy, on real republican principles, but we
wish to withhold such powers as are not absolutely necessary in themselves, but are extremely dangerous. We wish to to shut the door against corruption. . . .We ask such amendments as will point out what powers are
reserved to the state governments." (George Mason of Virginia in Elliot, ed., Debates, III, 263.)
"[L]et us examine whether it [the proposed government] be calculated to preserve the invaluable blessings of liberty, and secure the inestimable rights of mankind. If it be so, let us adopt it. But if it be found to contain principles that will lead to the subversion of liberty; if it tends to establish a despotism, or what is worse, a tyrannical aristocracy, let us insist upon the necessary alterations and amendments . . . .The constitution should be so formed as not to swallow up the state governments: the general government ought to be confined to certain national objects; and the states should retain such powers, as concern their own internal police." (Mr. Williams of New York, in Elliot, ed., Debates, II, 241.)
"[Hamilton] seemed disposed to render the federal government entirely independent, and to prevent the possibility of it ever being influenced by the interests of the several states: and yet he had acknowledged them to be the necessary fundamental parts of the system. Where then was the check?" [Italics added] (Mr. Lansing of New York in Elliot, ed., Debates, II, 296.)
Among the amendments proposed by several states were those that reserved to the states all powers not delegated to Congress. Rhode Island wanted the following: "1st. The United States shall guarantee to each State its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this Constitution expressly delegated to the United States." It also declared in its letter of acceptance "That the powers of government may be reassumed by the People whensoever it shall become necessary to their happiness." Similar language was used by the Virginia convention: that "the powers granted under the Constitution being derived from the people. . .be resumed by them whensoever the same shall be perverted to their injury or oppression; and that every power, not granted thereby remains with them and at their will." (Elliot, ed., Debates, III, 591.)19
Let Experience Be Our GuideAfter all was said and done, the government as amended represented a not so radical departure after all. It was, in effect, only a modification of the old Articles of Confederation (as Madison himself would long insist). To attempt more, as was noted time and again, was to go against the American experience of federalism and republicanism. 20
"Mr. Butler. The people will not bear such innovations. The States will revolt at such encroachments. . . .We must follow the example of Solon who gave the Athenians not the best Govt. he could devise; but the best they w[oul]d receive." (Notes of Debates, June 5,73.)
"Mr. Patterson considered the proposition for a pro- portional representation as striking at the existence of the lesser States. . . .The Convention he said was formed in pursuance of an Act of Cong[res]s. . . .that the amend-
ment of the confederacy was the object of all the laws and commissions on the subject. . . .We ought to keep within its limits, or we should be charged by our Constituents with usurpation. . . .We have no power to go beyond the federal scheme, and if we had the people were not ripe for any other. We must follow the people. . . .A confederacy supposes sovereignty in the members composing it & sovereignty supposes equality." (Notes of Debates, June 9, 95.)
Mr. Lansing. . . .was decidedly of opinion that the power of the Convention was restrained to amendments of a federal nature, and having for their basis the Confederacy in being . . . .N. York would never have concurred in sending deputies to the convention, if she had supposed the de- liberations were to turn on a consolidation of the States, and a National Government." (Notes of Debates, June 16, 122.)
Now we can understand John Dickinson's famous phrase, "Experience must be our guide. Reason may mislead us," which accurately expressed the majority viewpoint especially with respect to the rights of the states. "It was not Reason that discovered the singular & admirable mechanism of the English Constitution" or "trial by Jury," he noted. (Notes of Debates, August 13, 447). Experience, he observed earlier, also proved that the "accidental lucky division of this Country into distinct States" was a good and not a bad thing. (Notes of Debates, June 2, 57) and their "preservation. . .in a certain degree of agency [was] indispensable. . . .To attempt to abolish the States altogether, would degrade the Councils of our Country, would be impracticable, would be ruinous." (Notes of Debates, June 7, 84). His countrymen agreed.21
No to Consolidation and the Madisonian Extended RepublicBesides the lack of a Bill of Rights, the anti-Federalists' next most potent argument against the proposed Constitution centered on the issue of consolidation. While admitting that "Our object has been all along, to reform our federal system, and to strengthen our governments," the "Federal Farmer" nevertheless objected to the proposed new government. "The plan of government. . .is evidently calculated totally to change, in time, our condition as a people. Instead of being thirteen republics, under a a federal head, it is clearly designed to make us one consolidated government." ("Federal Farmer" #1, Oct. 8, 1787, In Kaminski, ed., Documentary History, XIV, 18-27 quote on 21.)
In his fifth essay, "Federal Farmer" admitted "that we want a federal system" but "This subject of consolidating the states is new; and because forty or fifty men have agreed in a system, to suppose the good sense of this country. . .must adopt it without examination, and. . .without endeavouring to amend [it]. . .is truly humiliating." (October 13, 1787 in Dry, ed., The Anti-Federalist, 61-62.) Samuel Adams was equally direct and to the point. "I confess," he wrote to Richard Henry Lee, "as I enter the Building I stumble at the Threshold. I meet with a National Government, instead of a foederal Union of Sovereign States." (December 5, 1787, in Documentary History, XIV, 333).22
Pointing to the development of a new federalism, Adams also had this to say: "But should we continue distinct sovereig[n] States, confederated for the Purposes of mutual Safety and Happiness, each contributing to the foederal Head such a Part of its Sovereignty as would render the Government fully adequate to these Purposes and no more, the People would govern themselves more easily, the Laws of each State being well adapted to its own Genius & Circumstance, and the Liberties of the United States would be more secure than they can be. . .under the proposed Constitution." (Ibid., 333.) "Brutus" agreed. The best government for America was a confederation of independent states "for the conducting [of] certain general concerns, in which they have a common interest, leaving the management of their internal and local affairs to their separate governments." "How far the powers to be retained by the states shall extend, is the question. . .?" (#V, December 13, 1787, in Documentary History, XIV, 422, 426.)23
As the anti-Federalists reiterated again and again, a federal government implied the existence of states. To quote Nathaniel Ames from Massachusetts: "The state governments represent the wishes and feelings of the people. They are the safeguards and ornament of our liberties- - -they will afford a shelter against the abuse of power, and will be the natural avengers of our violated rights." (Elliot, ed., Debates, II, 71.) Patrick Henry of Virginia concurred. After calling the new government a consolidated and a dangerous one, he added that "States are the characteristics, and soul of a confederation. If the states be not the agents of this compact, it must be one great consolidated national government, of the people of all the states." "The distinction between a national government and a confederacy is not sufficiently discerned." The people never sent delegates but the states did. (Elliot, ed., Debates, III, June 4, 1788, 54, 79, 80; II, 71.)24
Agreeing with Montesquieu, that a republican government could only subsist in a small territory, the anti-Federalists came to the obvious conclusion: America would have to be a federal republic and a union of the states (not the states united). As small republics themselves, the states would provide the foundation for republican and limited government in America. Here's what "Centinel" had to say: ". . .from the nature of things, from the opinions of the greatest writers and from the peculiar circumstances of the United States," it is not practical to establish and maintain "one government on the principles of freedom in so extensive a territory. . . ." The only plausible system "by which so extensive a country can be governed consistent with freedom," therefore, is "a confederation of republics, possessing all the powers of internal government, and united in the management of their general and foreign concerns. . . .("Centinel" #3 in Kaminski, ed., Documentary History, 61.) Brutus agreed (December 27, 1787, in Documentary History, XV, 116): 25
"It is admitted, 'that the circumstances of our country are such, as to demand a compound, instead of a simple a confederate, instead of a sole government'. . . .The government then, being complex in its nature, the end it has in view is so also; and it is necessary, that the state governments should possess the means to attain the ends expected from them. . . .Neither the general government, nor the state governments, ought to be vested with all the powers to be exercised for promoting the ends of government. The powers are divided between them — certain ends are to be attained by the one, and other certain ends by the other; and these, taken together, include all the ends of good government. ("Brutus" #VI, Dec. 27, 1787, in Kaminski, ed., Doc. History, XV, 110-117 quote on 116.) To the "Federal Farmer", the United States could exist as one nation only as "Distinct republics connected under a federal head. In this case the respective state governments must be the principal guardians of the peoples [sic] rights, and exclusively regulate the internal police; in them must rest the balance of government." ("Federal Farmer" #1 in Kaminski, ed., Doc. History, 24.)26
The Federalist and The Madisonian Extended Republic RejectedIn rejecting the arguments of the Federalists and The Federalist, the anti-Federalists also exploded Madison's much celebrated theory of the extended republic which, by contrast, was basically and boldly nationalist and consolidationist in intent. Based on his failed Virginia plan, representation was to have been proportional in both Houses of Congress so as to cut through the power of the states or state sovereignty (the bane of the Confederation and, to Madison, the greatest threat to the republic). As Forrest McDonald has revealed, in his analysis of "the Madisonian constitution," the frame of government proposed by Madison in 1787, the one we know as the Virginia Plan, had as its purpose the virtual elimination of the states. Supreme power was to concentrated in a national Congress (bicameral) which he also desired to have a negative over state legislation.27
Small wonder, then, that the Madison or Virginia plan was opposed from the beginning and ultimately rejected for being too national and too innovative. It went, in short, beyond the American political experience and the theory of republicanism. His much praised idea of "the extended republic" was in fact not very republican at all. Madison's solution to the problems of faction and majority tyranny or "democratic despotism" (the new issue that arose in the 1780's and which prompted the movement for a new constitution) was based not on states but on individuals who in the aggregate would comprise such a diversity of interests as to inhibit any collusion and the possibility of their gaining control of the government. Should this not work, there was always the power of the national government to be called upon.28
Madison's "extended republic" had one major flaw. It assumed a direct relationship between individuals or the people and the national government (via proportional representation). In terms of the radical Whig-republican ideology of the time, however, this type of government was an Asian despotism defined to be one where rulers had direct and unlimited control over their subjects.
As opponents within the convention and without stated again and again, a federal government pre-supposed the existence of states. These had to be recognized and somehow incorporated into the structure of the government. Determining their role, in effect, was one of the essential tasks of the federal convention as described above. As the "Federal Farmer" had already observed, "In a federal system we must not only balance the parts of the same government. . .but we must find a balancing influence between the general and local governments- - -the latter is what men or writers have but very little or imperfectly considered." ("Federal Farmer" #VI, in Dry, ed., The Anti-Federalist, 69.) 29
Like so much else in the writings of the Federalists (including The Federalist), the anti-Federalists believed with Patrick Henry that they "smelled a rat." Indeed, The Federalist emphasis upon the limited nature of the proposed government even without a Bill of Rights just did not ring true, a point highlighted by Charles Johnson of North Carolina: Writing to James Iredell of the same state, he agreed that The Federalist was "elegantly written. . . .But I am surprised that he should have thought it necessary to take so much pains to establish, what appears at the first glance, at least to me, an incontrovertible truth, which is — that the States, united under one government, properly balanced, will be much more powerful, have fewer causes either of internal or external quarrel, and will be able to procure greater commercial advantages, more respectability and credit, than the States disunited into distinct, independent governments, or separate confederacies." "I shall be particularly desirous to see the numbers [of The Federalist] that treat of the additional security which the adoption of the new Constitution will afford to the republican form of government, to liberty and property."30 (Letter of January 14, 1788 in Kaminski, et al, eds., Documentary History, XV, 363-365.)
For all if its republican rhetoric, The Federalist ironically helped the cause of the anti-Federalists. If what The Federalist said was true, then how could its authors and others of like persuasion object to amendments? The idea of The Federalist having a split personality, it would appear, is by no means a new problem. It was there from the beginning and only serves to underscore the purpose of that collection of essays: to prevent amendments altogether and to regain some of the political momentum that its authors had lost during the Federal Convention. 31
In the end, the anti-Federalists rather than the Federalists are entitled to the claim of being the real founding fathers of the Constitution we so revere today. Without them, there would have been no Bill of Rights or a line of partition specifying delegated versus reserved powers. Without them, there would have been no new American science of politics- - -of modern federalism, divided powers, and a complete system of checks and balances finally applied to the states with the Tenth Amendment and originally meant to include a positive power of self-defense or Nullification. (If that N-word is not there explicitly, the intent most certainly is. To suggest otherwise is to deny at the same time the existence of "federalism," "separation of powers," and "checks and balances" which no where appear in the Constitution.).32
By no means opposed to granting extraordinary powers to the proposed new government, the anti-Federalists instead of the Federalists or The Federalist were the ones who saw the need for new and different safeguards to assure that the rights of individuals and of states were secure. Opposing the highly nationalist Virginia Plan from the beginning, based on radical Whig-republican ideology, the anti-Federalists held out initially for state representation in the Senate as a first step toward a new definition of federalism that went beyond the old idea of a Confederacy but which did not include a consolidated or a national government. As for the nature of the new government as amended, it was truly a federal republic or union of the states and not the states united. In the language of the day, it was as Hamilton described it a "confederate. . .republic." To James Madison, "the proposed Constitution. . .is, in strictness, neither national nor a federal Constitution, but a composition of both." In keeping with radical Whig-republican ideology, not only had the wheels and springs of government been created anew to afford new safeguards against the abuse of power, but incorporating the states into the new federal system made republican government possible in such a large territory as America.33
From Principle to Action: James Madison as the Father of NullificationWhile Nullification continued to be believed after 1791 and long before 1798 as Forrest McDonald and James M. Banning, Jr. have noted (with little noticeable historiographical impact) and as indicated by Jefferson's 1792 letter to Madison, its espousal in Virginia as a remedy to be "wreaked thro' the forms of the Constitution" is to be attributed to none other than James Madison (and above the claims made for Thomas Jefferson or John Taylor of Caroline). For beginners, there is the direct assertion of Irving Brant made way back in 1950. . In his words, "The basic doctrine of state opposition to unconstitutional laws had been suggested by Madison to Jefferson in 1788." As we know, too, the Madison-Jefferson collaboration about resistance to "Hamiltonianism" and "Federalism" continued uninterrupted through 1796 and reached the point that Madison actually loaned his "Notes" for Jefferson to copy in 1796. 34
Using his "Notes," moreover, it was Madison who authored the Virginia Resolution of 1798. This document is of particular interest because it contains a clue that links its language to the debates in the federal convention of 1787, knowledge of which only Madison himself possessed. The telling phrase is as follows:
"Encroachments springing from a Government, WHOSE ORGANIZATION CANNOT BE MAINTAINED
WITHOUT THE CO-OPERATION OF THE STATES, furnish the strongest excitements upon the State Legislatures to watchfulness, and impose upon them the strongest obligation, TO PRESERVE UNIMPAIRED THE LINE OF PARTITION." (Elliot's Debates, IV, 556.)
This is precisely the language used in the debates of 1787 as recorded by Madison and which refer to the necessity of drawing a line of demarcation between federal and state powers or those reserved versus those delegated.35
In sum, not only was Nullification constitutional (meaning that it was raised within the Federal Convention and later incorporated into the Tenth Amendment), but it was entirely in keeping with the new American science of politics described so well by Gordon S. Wood (who, significantly, used John Taylor of Caroline to illustrate what the framers had accomplished). For Madison and Jefferson, raw politics and party propaganda were certainly motives behind the first Nullification movement in Virginia. So too was the deeply felt and real need to restore the Whig-republican principles of 1776 and 1787 that were already being forgotten so early in the history of the republic. What they themselves said, it appears, can now be more readily accepted at face value.
While many explanations for the rise of the Republican (Whig) party and the development of the first party system have been advanced, states' rights and Nullification have been largely dismissed. Not without meaning, however, did Jefferson use the term "Whig" to describe the Republican party he and Madison organized. And the designation of "Whig" reminds us that "republicanism" was "anti-Federalism" carried into the 1790's and beyond. In this context, Charles A. Beard was at least half-right about a "counter-revolution" on the part of the Federalists. It came, however, not with the Federal Convention as he supposed but after the new government was organized in 1789. 36
Dominated by Federalists, the early Congresses abandoned the original intentions of 1787-1788 altogether for many reasons and not all of them sinister. According to David P. Currie, the Constitution only provided an outline of government; "translating the generalities of this noble instrument into concrete and functioning institutions was deliberately left to Congress. . . .Thus in a very real sense the First Congress was a sort of continuing constitutional convention, and not simply because so many of its members — James Madison, Oliver Ellsworth, Elbridge Gerry, Rufus King, Robert Morris, and William Paterson being only the most conspicuous examples — had helped to compose or to ratify the Constitution itself." Prof. Currie's interpretation, however, stops short of Madison's own increasing concerns about the course of legislation advanced by Alexander Hamilton as Secretary of the Treasury.37
More recently, Prof. Joseph M. Lynch has looked anew at the issue of original intentions and comes to a similar conclusion as that of Currie. "A close reading of the debates of the first six congresses," he notes, "makes clear that policy goals, not fidelity to past position, most often influenced the construction placed on the Constitution in discussions of the scope of federal power or, within the federal government, the scope of executive power. Those goals also determined the use — or deprecation of the use — made of a framer's recollections, of essays in the Federalist, or of the reports of the proceedings of the state conventions. Politics, the desire to attain or maintain control of the government and to set its policies, personal rivalry, and the rivalries of state and region all played an integral part in the construction of the Constitution." 38
Yet, Prof. Lynch himself admits the following contradictory point: "the Federalists, under Washington's quiet — and Hamilton's outspoken — leadership, disregarded the Federalist thesis that the Article I legislative powers of the federal government were few and defined, and opted instead for a broad formulation of the enigmatically phrased Necessary and Proper Clause and the spending power, so as to authorize Congress to legislate in the general interests of the country."
If "Madison and his allies" were not paragons of consistency in invoking original intentions, they more often than not invoked "ratification assurances" or "a framer's recollections." 39
More to the point of the thesis of this article, Profs. Currie and Lynch reveal another very interesting development. By the Fourth Congress, original intentions were dismissed as irrelevant altogether with the consequence that the records of the Federal Convention and of the state ratification debates were regarded as unimportant. Besides his own flip-flop about the value of the Convention debates, Elbridge Gerry even went as far as to declare that "the records of the state ratifying conventions were no better since they were 'generally partial and mutilated'." (809) The publication of Jonathan Elliot's Debates would disprove this statement. Nevertheless, only in the 20th century would a complete documentary history of the Federal and state ratifying conventions be available to scholars which lacunae to say the least inhibited an understanding of original intentions and who the framers were. 40
What Happened to Nullification?With the issues of Nullification's origins and legitimacy clarified if not settled, the question of what happened to its constitutionality can now be addressed (which paradigm offers a more fruitful approach rather than the standard assumption of its unconstitutionality and illegitimacy). For the period at hand, several things happened that would impact Nullification negatively. Besides the absence of documentary evidence, more immediately there was the triumph of the Republican Party in the election of 1800 which obviated any need for further constitutional protests. More crucial was the course of anonymity pursued by Madison and Jefferson. Understandable as this was in light of anti-party sentiment and their respective reputations, without the prestige and weight of their names the principles of 1798 and 1799 became identified for what they are today: as something sectional, sinister, and disunionist. And so it has remained ever since despite evidence to the contrary that has always existed but which Madison kept hidden from the public during his lifetime.41
After 1800, the story of Nullification's history from constitutional to unconstitutional concept is more complicated. More immediately, the Hartford Convention further contributed to "nullify" Nullification and reinforce its sectional and divisive nature. Curiously again, Madison and Jefferson were strangely quiet at least publicly about this matter and its consequences. In addition to fomenting political and constitutional dissent in New England, the near disastrous War of 1812 also revived liberalism defined here as neo-Hamiltonianism as an antidote to old-fashioned republicanism that seemed more and more irrelevant to the needs of the young republic. 42
Without Madison's "Notes," Nullification could not be linked to the debates of 1787-1788 and without a history before 1798-1800 this theory was considered as being beyond the Constitution. Thus the strange phenomenon of states' rights without Nullification with the rise of the Old Republicans in the renewed struggle between liberalism and republicanism (a la the 1790's all over again). For this same reason, the earliest histories of the Constitution were quiet on the subject as well although they accurately described the federal rather than the national nature of the American republic. 43
In the longer run, and following the transformation of the republic between 1815 and 1860, early American and Southern history were re-written from a 19th century and more liberal-democratic-nationalistic perspective giving us the myths of democracy (American was born modern and liberal) and a reactionary South that persist today. To this historical revisionism, James Madison contributed himself by reversing course later on during the twilight of his life and becoming the leading anti-Nullifier. In the process, even more myths were created like Nullification in Virginia being different from that in South Carolina, the Constitution as establishing neither a federal or a national government (Madison's so-called "middle position"), and the charge that South Carolina Nullifiers were only reviving the old Articles of Confederation (the meaning of federal as used by Madison). 44
Now that a complete documentary record of the history of the Constitution and the process of ratification leading to amendments is available at last, is it not time to get beyond the myths of Madison, the Federalists, and The Federalist to understand who the real framers were and what they really intended including the right of Nullification?
Clearly a new look at the origins of our federal republic is needed as we enter a new century. Since the nature of the union remained a source of controversy from 1800 to 1860, understanding original intentions lends credence to the Lost Cause of the South and the Confederacy (which began long before 1860) while it clarifies the process of Northern-nationalist historical writing between 1815 and 1860 for what it was: mythmaking on a grand scale to make the North the heirs of 1776 and 1787 rather than the South.
The myths of old (of democracy and a reactionary South) live on and still influence interpretations of the Revolution, the Constitution, the South, and the Civil War.