James Madison on the Relationship Between Democratic Theory and Federalism

  by

  John Kearnes

Department of Criminal Justice, Social and Political Science
Armstrong Atlantic State University
11935 Abercorn St. Savannah, GA 31419

    The Federalist doctrine of popular sovereignty proved an effective rhetorical strategy to gain the adoption of the Constitution. While it gave legitimacy to the new regime, the political institutions created under the Constitution precluded that the public would directly operate the government.

     The Federalist doctrine on popular sovereignty is still embodied in our political institutions and continues to dominate contemporary thinking about our democracy. What is not so easily recognized is that this formulation of democratic theory also provided a framework for constitutional interpretation. This paper will demonstrate this relationship in the thought of James Madison. As an exercise in original intent, It is not simply to elucidate a problem in the history of ideas, but also to serve as a touchstone for understanding the Supreme Court’s own formulation of the relationship between democratic theory and constitutional Interpretation.

     In the debate over the ratification of the Constitution, Madison and other Federalists asserted that only a strictly republican government could make the new Constitution defensible. A piece of campaign literature for this purpose jointly authored by Madison, Alexander Hamilton, and John Jay was THE FEDERALIST. The authors argued that the Constitution offered a republican remedy for the evils of popular government. Why they insisted on popular government to make the Constitution defensible was in part related to the predisposition of their audience, but also to their belief in man’s political impulse for self assertion (Easton, 1984,6-7).

     In Federalist No. 39 Madison undertakes to convince his readers that the new government under the constitution was a republic that was national in scope but, for certain purposes federal in character. Madison asserted that the Constitution was founded on the assent of the people. This collectivity was not the majority of the people of the United States, but rather Individuals composing independent states. This ratification by states came from the supreme authority of each state, the people. The will of the majority in each state bound each state, making the adoption of the Constitution not a national but a federal act(1788,192-93).

    Since the central government under the Constitution would act directly on the people, It would be national In its operation; but In terms of Its powers It would be federal. Its jurisdiction would be confined to, “certain enumerated objects only, (this)... leaves to the several States a residuary and inviolable sovereignty over all other objects,”( 1788.194). The central government has “IndefInite supremacy,” over all of its enumerated objects. but a residuary sovereignty Is left to the states. Here Madison articulates the character of this popular sovereign. It has divided its expression of supreme will between a central and several state governments. thereby dividing its own sovereignty.

    Madison hastens to add that in controversies relating to boundaries between the states and the central government that it is the Supreme Court which is to decide such Issues. He assures the reader that the, “decision Is to be impartially made, according to the rules of the Constitution.” That without such a tribunal their would be a dissolution of the compact. And he concludes by suggesting that few would question that it is more safe for this tribunal to be constituted under the general government rather than the states (1788,194). This division of sovereignty makes, the proposed Constitution, “In strictness neither a national nor a federal constitution; but a composition of both” (1788.195).

     The republican basis of the Constitution rests on a popular sovereign that acts in an incremental way to fashion, as Madison would say later in his life, a government that was sui generis. It was unique it that that people had divided their sovereignty between a central and local governments. To resolve the boundary between this division, the Supreme Court would act as an impartial arbiter.

   In Federalist No. 44 Madison undertakes to discuss the powers of Congress. He asks what would be the consequence if Congress should misconstrue the Constitution. This usurpation could only be successful if the executive and judicial department agreed to it. The last resort would be from the people who could elect more faithful representatives to annual such acts. Since this usurpation of powers was an invasion of the powers of the states they would ever be ready to,” sound the alarm to the people, and to exert their local influence In effecting a change of federal representatives,”( 1788,230). Electoral politics was to be the ultimate arbiter of constitutional interpretation. Madison’s logical reduction was prophetic for the “Revolution of 1800” when Jefferson’s Democratic -Republican party wrested control of the national government from the Federalist party.

     In Federalist No. 46 Madison continues his argument over balancing the powers of the federal and state governments. Both governments are controlled by a common superior, the people. The people would naturally have a greater attachment to their local governments than to a distant national government. But even if that were not the case, members of the federal government would be more dependent on the members of the state governments. If there were an encroachment by the federal government on the authority of state governments, it would excite the opposition of several states and be a general cause for alarm. Should the matter be resolved by military force, the size of the state militias would be sufficient to repel the danger. Such an untoward event would be the result of a “long train of insidious measures,”(1788,243). Madison’s point is that the ability of the federal government to use its powers is dependent upon the will of the people, as expressed in elections and public opinion. That In any show down between the two governments the affections of the people for their local governments would generate force to resolve the issue In favor of the rights of the states.

       The FEDERALISTS’S popular sovereign only acts in any collective sense at the creation of the republic. The federal government for all intents and purposes enforces the rules of the game between the states and the federal government. Elections, and constitutional amendments, are the only legal means that the popular sovereign can indirectly use In order to modify the usurpation of state powers by the federal government. If this is not enough, then the people have a natural right of revolution, but not a constitutional right, to assert their sovereignty over the terms of the compact. Despite all of the assurances of a limited federal government, dependent upon the will of the people, and a sovereignty reserved to the states, the balancing of this divided sovereignty was not dependent on the rules of the Constitution, but on the politics of federalism. In the hope that this would not be the case, the Antifederalist in their attack on the Constitution focused on the need for a bill of rights. It was this political expediency that led the federalists and Madison to agree to recommendatory amendments to secure the adoption of the Constitution in Virginia and other doubtful states. He kept his campaign pledge and at the first session of the House of Representatives, Madison proposed a set of amendments that he thought appropriate for the preservation of fundamental rights, and that were consonant with the purpose of the Constitution in creating a strong central government.

    Two of Madison’s proposals which later became the Ninth and Tenth Amendments were not statements about rights as such, but rather an affirmation about the nature of the Constitution, federalism, and a paradigm for interpreting the Constitution. The impetus for these proposals were a result of the way in which the Federalists had framed their response to the objection that the Constitution had no bill of rights.

    Even though the Antifederalists have been credited as the driving force for a bill of rights (Rutland, 1955,1983). their are other scholars who have argued that they were generally hostile to what we now call First Amendment rights (Kenyon, 1955). It seems that the Antifederalists that were In control of state governments benefited from “insider’ transactions like the issuance of paper money, The new Constitution would prohibit these practices directly affecting their pocketbooks. Proclaiming their personal economic interest as a grounds for defeating the Constitution would not be effective. What they needed was a "cause" for public consumption. and that proved to be a bill of rights (McDonald. 1975,1963).

   The Federalist objection to conditional amendments stemmed from the practical result that such would obviate the adoption of the Constitution. This does not mean that the Framers were hostile to civil liberties. but rather In their view a bill of rights was not the best means for obtaining them. As Madison observed about states that did have bills of rights, that they often proved to be,” parchment barriers,” regularly trampled upon by state legislatures. Rights were not protected by only having words on paper. Concrete checks against arbitrary power were the only real protection for rights, “power must check power.” The checks favored by Madison and the Federalists reflected their nationalistic bias, a federal republic with separation of powers. The Antifederalists on the other hand, held that state governments would be the principle means for checking the abuse of power (Hudson, 1988).

     The Federalist rhetoric about this debate precipitated the demand for what later became the Ninth and Tenth Amendments. James Wilson, delegate to the constitutional convention from Pennsylvania, was the first to publicly speak out on the issue in a state house speech three weeks after the close of the convention. He argued that there was no need for a bill of rights because the Constitution had no delegated powers touching on these topics and therefore these powers were reserved to the states:

 

When the people established the powers of legislation under their separate governments, they invested their representatives with every right and authority which they did not in explicit terms reserve: and therefore upon every question, respecting the jurisdiction is efficient and complete. But in delegating federal powers, another criterion was necessarily Introduced, and the congressional authority is to be collected not from tacit implication, but from the positive grant expressed in the instrument of the union. Hence it is evident, that in the former case everything which is not given is reserved (Kaininski and Saladino, eds., 1976- COMMENTARIES, 339-40).

 

   A government of enumerated powers made a bill of rights unnecessary. Alexander Hamilton in Federalist No. 84 extended the argument of reserved powers to suggest that a bill of rights would even be dangerous because it, “would contain various exceptions to powers which were not granted; and on this very account, would afford a colorable pretext to claim more than were granted,”(1788, 437). Portraying rights as powers reserved meant that one had to enumerate all rights, or otherwise it could be inferred that they were powers granted, and it would be impossible to enumerate all of the rights of the people. The Federalists by framing the issue of a bill of rights in this manner, led the Antifederalists to demand a residuary clause for the protection of unenumerated rights. Interpreting the Constitution as confined to enumerated powers and amendments as powers reserved would leave by Implication powers to the federal government that were not enumerated. This conundrum led the Antifederalists not only to want a residuary clause for unenumerated rights, but also to demand a guarantee against the possibility that rights under state law could not be nullified under the proposed constitution. This is what Samuel Spencer at the North Carolina ratifying convention argued:

(As the government was not to operate against states, but against individuals, the rights of Individuals ought to be properly secured. In order to constitute this security, it appears to me their ought to be such a clause in the Constitution as there was in the Confederation, expressly declaring, that every power, jurisdiction, and right, which are not given up by it remain in the states. Such a clause would render a bill of rights unnecessary. But as there is no such clause, I contend that there should be a bill of rights, ascertaining and securing the great rights of the states and the people. (4 J. Elliot, 163; Caplan, 1983,1989,266-267)

  Antifederalists argued that Article II of the Articles of Confederation should be included as a way of protecting individual as well as states’ rights:

  Each state retains its sovereignty, freedom and independence, and every power, jurisdiction and right, which is not by this confederation expressly delegated to the United States, in Congress assembled. (9 JOURNALS OF THE CONTINENTAL CONGRESS 1774-1789,908, W. Ford, ed., 1907; Cf. Caplan, 1983,1989,256)

  At the Virginia ratifying convention George Mason urged that an amendment similar to Article II be added to the proposed Constitution so that rights would not be given up by Implication. The Virginia convention narrowly ratified the Constitution but not without a bevy of recommendatory amendments. The first sought to preserve the guarantees of Article H, and the seventeenth sought to ensure a rule of construction for Interpreting the constitution that would prevent the enhancement of congressional power:

  1st. That each state in the union shall respectively retain every power, jurisdiction, and right, which is not by the Constitution delegated to the Congress of the United States, or to the departments of the federal government.

  2nd. That those clauses which declare that Congress shall not exercise certain powers, be not interpreted, in any manner whatsoever, to extend the powers of Congress; but that they may be construed either as making exceptions to the specified powers where this shall be the case, or otherwise, as Inserted merely for greater caution. (3 J. Elliot, 659; cf. Caplan 1983,1989,272)

    When Madison proposed his amendments to the House, he borrowed from Virginia’s first and seventeenth recommendatory amendments for the final clause of his forth resolution. Its purpose was to guarantee the rights protected under state law would not be supplanted by federal law simply because they were not listed in the Constitution. This amendment was needed to obviate the concern that a bill of rights which granted exceptions to powers would not delimit those rights not Included in the enumeration. It was to guard against this construction of the Constitution that this amendment was Included:

  The exceptions here or elsewhere in the constitution, made in favor of particular rights, shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the constitution; but either as actual limitations of such powers, or as inserted merely for greater caution. (Schwartz, II, 1027)

  With some modification by the House and the Senate, Madison's resolution became the Ninth Amendment. ‘The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” The first eight amendments were intended to preserve individual rights by explicit federal protection through express enumeration, but the Ninth was intended to shield state laws from interference by Congress, thereby leaving intact those individual rights contained in state constitutions, statutes, and common law (Caplan, 1983,1989,282-283).

  This amendment would resolve what Madison felt was the most serious objection to having a bill of rights, that a partial enumeration would forfeit by implication unenumerated rights. It was to be a rule of construction preserving the divided sovereignty of federalism, and at the same time characterizing the nature of rights enumerated in the Constitution (Schwartz, II, 1031).

 

  In contrast Madison introduced his eight resolution to the House by explaining that he was doing so because several state conventions had proposed amendments to this effect, even though he thought it was superfluous, “there can be no harm In making such a declaration.”   “The powers not delegated by this constitution, nor prohibited by it to the States are reserved to the States respectively.” (Schwartz, 11,1 033, 1028). This sentence with the emendation, “or to the people,” became the Tenth Amendment. This was a modified version of Article II of the Articles of Confederation intended to describe the federal system already set forth In the Constitution Itself, therefore the practical effect of the amendment was to change nothing.

    During the ratification debate over the amendments in Virginia, Governor Edmond Randolph objected to the thrust of what became the Ninth Amendment by arguing that it would have been more consistent with the Virginia’s First and Seventeenth recommendatory amendments had their been a specific amendment prohibiting Congress from expanding Its powers by Its own authority rather than a partial listing of enumerated rights followed by saying that all unspecified rights were retained by the people. This made the, “protection of rights reducible to no definite certainty,” according to Randolph. Madison in a letter to Washington confessed that he did not see the force of the distinction made by Randolph:

  If a line can be drawn between the powers granted and the rights retained, it would seem to be the same thing, whether the latter be secured by declaring that they shall not be abridged, or that the former shall not be extended. If no line can be drawn, a declaration in either form would amount to nothing. (Madison to Washington, Dec. 5, 1789, in Schwartz, II, 1190)

    For Madison reserved powers were an analog for rights. Rights retained were powers limited. That this may be logical In theory, but not true In reality would evolve upon the use of Congress’s Implied powers. The presumption that rights In the Constitution could be either limits on powers granted, or declaration of powers reserved may have made no difference In determining the boundary for enumerated powers, but It would give no guidance as to which side of the coin you look at first in determining rights or powers.

    The Ninth and Tenth Amendments provide a Janus face to federalism. Taken together they provide a method for Interpreting the Constitution, and secondly, a theory of popular sovereignty as the basis of the republic. Derived from Article II of the Articles of Confederation, they were intended to quell the fear of federal encroachment on states rights. They were paired in the final version of the Bill of Rights for this analogous purpose. The Ninth was intended to preserve individual rights under existing state laws in 1791, and those rights which states would later enact. The Tenth permitted states to continue to exercise their powers based on the residual sovereignty of the people to establish government. The Ninth Amendment looks to the past, the rights retained, or that will be retained by the states. The Tenth Amendment looks to the future allowing states the power to legislate and revise their constitutions. One reserves the rights legislated by the states, the other reserves the powers of the states to legislate (ci. Dean Roscoe Pound, Introduction to Patterson, 1955, iv-vti; Caplan, 1983,1989,285-286).

    In Madison’s rhetoric over the ratification of the Constitution, and the adoption of the Bill of Rights their emerges a theory about the nature of sovereignty and federalism under the new republic. This theory conveyed a sense of balance between the federal government, its powers and the rights of the states. It denoted the idea of impartiality in defining that divided sovereignty. Its goal was a perpetual union of states Into an American empire.

   Being a participant observer to the first half century of this republican experiment, Madison would be the last of the Founding Fathers, outliving all of the framers of the Constitution. It was during this period that his democratic theory was further developed by the tempering of republican politics. There were two specific events that proved to be crucial In this development. The first is the story of the Virginia and Kentucky Resolutions of 1798, and the other is its derivative, the nullification controversy in the 1830’s near the end of his life.

    The Allen and Sedition Acts of 1789 were the results of war hysteria and partisan politics. President John Adams had respond to French depredations on American shipping with preparations for war. Congress responded by passing a bill giving power to the Administration to send away suspected Aliens, and also a sedition bill designed to suppress the Whig press which had been violently assailing the President. The Act was limited in duration to March 3, 1801, clearly It was intended to terrorize Jefferson’s Republican party during the elections of 1798, and 1800, thereby limiting Jefferson’s ability to succeed Adams as president.

    Under the Sedition Act it was a penal offense to publish any false, scandalous, and malicious writing against the government with the Intent of bringing it into disrepute. With Jefferson as Vice President, and Madison at home in Virginia. their party faced an unparalleled threat to political liberty (Brant, 111,452-458). It was Jefferson who Initiated a state to protest these laws and to set the campaign against the Federalists in the next presidential election. Since the judiciary was also controlled by the Federalists there was no hope of redress from partisan justice. What he proposed with the cooperation of Madison was that state legislatures protest these laws as violations of the Bill of Rights. Jefferson anonymously authored resolutions for use by the Kentucky legislature, and Madison did the same for Virginia. The Virginia and Kentucky Resolutions not only protested the Sedition Act, but they also put forward a method of redress other than their repeal by Congress.

    The Resolutions as passed by Kentucky stated that the Union was a compact of the states. Only limited powers were assigned to the federal government. Those not assigned were reserved to the states. When the federal government went outside of its powers, it had invaded the powers of the states, and therefore each state retained the right to judge for itself both the infraction of the Constitution and the means of redress. The Resolution ended however only with a request that the other states assist Kentucky in securing the repealing of the Acts. Had Jefferson’s original draft passed the legislature, Kentucky would have taken an even stronger position. Jefferson had written that, “where powers are assumed which have not been delegated, a nullification of the act is a rightful remedy: that every State has a natural right in cases not within the compact. . . to nullify of their own authority all assumptions of power....” He also went on to invite the other states to, “concur in declaring these acts void and of no force.” (Ford, WRITINGS, VII, 289-308; cf. Koch and Anunon, 1948, 157)

    Virginia’s Resolutions protested the seemingly unconstitutional manipulations of the Federalists. It asserted that since the compact derived its existence from the states they had a right to, “Interpose for arresting the progress of the evil and for maintaining.. . the authorities, rights, and liberties appertaining to them.” (Hunt, WRITINGS, VI, 326-332)

    Madison was troubled by Jefferson’s claim that states had a right to declare an act of Congress null and void. In a letter to Jefferson he analyzed the difficulties of such an approach for federalism:

  I have not seen the result of the discussions at Richmond.... It is to be feared their zeal may forget some consideration of which ought to temper their proceedings. Have you ever considered thoroughly the distinction between the power of the STATE, & that of the LEGISLATURE, on the question relating to the federal ultimate Judge of Infractions. It does not follow that the latter is the legitimate organ, especially as a convention was the organ by which the compact was made. This was a reason of great weight for using general expressions that would leave to other States a choice of the modes possible of concurring In substance, and would shield the General Assembly against the charge of usurpation in the very act of protesting the usurpations of Congress (Hunt, WRITINGS, Vl1,327-329).

     Although the Kentucky Resolutions made no specific statement that the state legislature was the proper agent to declare a federal law unconstitutional, the tenor of its language was In that direction. Madison accepted that the Union was based upon a compact among the states, but his idea of a divided sovereignty precluded the possibility that a state legislature could declare a federal law null and void.

    As a member of the Virginia legislature, it became Madison’s task to prepare a reply to the negative response of the other states to Virginia’s and Kentucky’s appeal. This was done in the “Report of 1800”. The Report characterized the Resolutions as only an expression of opinion by the respective legislatures. and that the Alien and Sedition Acts were unconstitutional. It was not a claim by Virginia that it had the power to declare an act of Congress unconstitutional ( 314-404). The protest achieved Its political purpose of ousting the Federalists from power In the election of 1800. But the suggestive language of the Resolutions was like tares sown In a field, waiting to bring an unwanted harvest. That day of reckoning came from an unlikely issue, the tariff.

    That the tariff would bring a constitutional crisis was a complete surprise to Madison. Beginning with the first session of Congress In 1789, Congress had regularly approved protective duties without any controversy as to their constitutionality. Certainly their were differing views as to the expediency of tariffs, but as to their constitutionality, that Madison felt was indisputable. The idea that the tariff was unconstitutional emerged among a vocal coterie of state’s rights Virginians. By the mid-1820’s their attacks on the “consolidation,” doctrines of the Marshall Court had been extended to Include Henry Clay’s American System of protective economic nationalism which included high tariffs and internal improvements. To these Virginians this was nothing less than a monstrous revival of Hamiltonian heresies. In the 1824 congressional debate over the tariff, Representative Philip P. Barbour of Orange County, Virginia, made what seems to be the first systematic case against the tariff on constitutional grounds. When President Adams endorsed the American System some Virginians verged on panic. But it was not until Jefferson had passed away that Governor William Giles armed with a letter from Jefferson, which he construed as supporting his position, took the Virginia legislature with him in explicitly denying the constitutionality of the federal tariff (McCoy, 1989,123-124; cf. Dice Robbins Anderson, WILLIAM BRANCH GILES: A STUDY IN THE POLITICS OF VIRGINIA AND THE NATION FROM 1790 TO 1830, Menasha, Wis.... 1914).

    Madison was certain that Virginia had taken an indefensible position, and that its assault on the tariff was nothing but an outburst of partisan politics. The nullifiers, however viewed their position as neither Innovative nor heretical. They presented it as a revival of a tradition established by none other than Jefferson and Madison with the “Revolution of 1800.” They rooted their constitutional doctrines in the sacred texts of the Virginia and Kentucky Resolutions, and the “Report of 1800.” After the enactment of the, “tariff of abominations,”in 1828, South Carolina went close to outright resistance by threats of nullification (Brant, VI, 468-480).

   South Carolina’s Senator Robert Hayne debated with Daniel Webster on a state’s right to nullify a law of Congress. Assuming that Madison would support his version of constitutional theory, he sent him a recent Senate speech on the topic. When Madison responded by disputing Hayne’s version of constitutional history, he was stunned. Alter several months of silence Hayne responded, Indicating that he preferred his own Interpretation of the Virginia Resolution of 1798 to that If its author. Madison realized that a private rebuke would not deter Hayne and others from misrepresenting, “the principles of 1798.” In August of 1830 he polished the text of his letter to Hayne and addressed it to the editor of the North American Review, Edward Everett. (McCoy, 1989,140-141; Madison to Everette, August 28, 1830, in Hunt, WRITINGS, LX, 383-403).

    He began his letter to the Review by discussing the nature of sovereignty under the federal system. The people of the states acting in their sovereign capacity formed the compact. They divided the powers of the government into two spheres, therefore the state and federal constitutions were of equal authority. This meant that Constitution of the United States could not be annulled by states individually. Without the supremacy of federal law under Article VI, interstate conflicts would quickly bring an end to the Union. States may exert influence on the federal government through elections, protests, and constitutional amendments. That was all that was intended by the Virginia Resolutions. When it was before the Virginia legislature, the proposed clause describing the Allen and Sedition Acts as, “unconstitutional, not law, but utterly null, void, of no force or effect,”: all but the word “unconstitutional,” had been struck out by the legislature, In order to preserve the phrase as simply expressing an opinion of Virginia (Hunt, WRITINGS, IX. 383-403).

    About a year passed before someone wrote to Madison asking if the stricken words in the Resolutions were as Madison had originally written them. He replied that his memory could not, “positively decide whether they were, or were not, in the original draft,” (J. Robertson to Madison, March 8, 1831; Madison to Robertson, March 27, 1831; cf. Brant, VI, 483). Madison told his inquirer, that even if he did write them, their elimination by the legislature made it impossible to claim Virginia’s support for the nullification doctrine. It may not have been Madison’s memory that was unclear, but rather that he had a vague recollection that these words were an interpolation at the suggestion of Jefferson. It was better for him to seem inconsistent then to make it easier for the nullifiers to invoke his name to their cause (Brant, VI, 483).

    Madison was disturbed enough about the consistency of his views that in 1835 a year before his death, he penned, “Notes on Nullification.” Here he undertook a review of all of the issues surrounding the debate, and defended the Virginia and Kentucky Resolutions as not supporting any constitutional right for a single state to nullify an act of Congress. This right only existed as a natural right of revolution for gross violations of the compact. It was the role of the judiciary to decide disputes between the federal government and the states. Only as a collectivity did the states have the right to Interpose against acts of Congress which they considered unconstitutional, and then only by the provisions of the compact. Those who espoused a theory of nullification assumed that sovereignty was a unit, “at once indivisible and unalienable that the states therefore individually retain it entire as they originally held It, and consequently that no portion of It can belong to the U.S.” (Hunt, WRITINGS, LX, 599). Madison’s answer to this misconception was that 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 as sovereign as they are a united people. tIbicL,600)

   The United States rests on a compact not between states as governments, but between the people of the several states in their sovereign capacity. In a companion memorandum on “Sovereignty,” Madison elaborated on the concept. He argued that in the rule of Lex Majoris Partis the will of the majority expresses he will of the whole of society. When Kentucky separated from Virginia, the majority was dividing the sovereignty of society by actually dividing society itself. These two societies therefore remained equally sovereign. This was analogous to the federal compact. The people allotted supreme power partly to a central government, and partly to the states. This was an act of the majority of the people in each state by their duly designated representatives. The nature of the sovereignty of each state was equal to that of the sovereignty of he Union itself, because it rested on the same source, ‘“for the sovereignty of each is but a moral person. That of the State and that of the Union are each a moral person, and in that respect precisely equal.”’ (Hunt, WRITINGS, IX, 572)

 

   What troubled Madison most about the nullifiers was that they posed as defenders of popular government. Their theory of nullification defied the irrefutable history of the formation of the Union; it also contravened he principle of majority rule, and as a result assumed an alternative standard for interpreting the Constitution. It was Madison’s view that it was the state ratifying conventions that should have first voice in giving meaning to the Constitution, then the accumulative weight of precedent both of which could be overturned by formal amendment to the Constitution. But under the nullifiers theory, every new legislature had  plenary power to decide what the Constitution meant. Madison felt that no republican government could survive such an approach to constitutional Interpretation, for it would bring an end to stability which was, ‘essential to good Government and good laws,” (Madison to Joseph C.Cabell, Sept. 18, 1828, in Hunt, WRITINGS, IX, 333-334).

     Madison’s campaign against nullification was intended to draw traditional Jeffersonian advocates of states rights away from this heresy, but also to moderate nationalists like Daniel Webster whose tendency was to read the compact as creating a consolidated government. Madison wrote to Webster to congratulate him on his speeches In the Senate against nullification, but at the same time he took issue with the Senator by refusing to declare that the Constitution had originated as a compact among the people of the states. He lectured that the people of the states had a “mixed form,” of government that made them one nation for certain purposes but not for others, (Madison to Webster, March 15, 1833, in Rives and Fendall anon, ds.,LE1TERS AND OTHER WRITINGS. IV, 293-294).

     The nationalists were as guilty as the nullifiers of not observing the terms of the original compact. Both failed to understand that the American people had undertaken an unprecedented experiment in divided sovereignty for the purpose of avoiding the evils of a consolidated government, and the defects of the confederation, while obtaining the advantages of both. That the American system was “sui generis,” could explain why it was so difficult to think correctly about the nature of the Republic (Madison to Robert S. 3arnett, Feb. 11, 1824, In Rives and Fendall anon., eds.,LE1TERS AND OTHER WRITINGS, III, 367; cf. McCoy, 1989,149).

     Madison in writing on the respective roles of the state and federal governments in interpreting the Constitution, expected the states to criticize the federal government when it exceeded Its powers, and to appeal to the political process to change federal policies. But the more positive aspects of interpreting the constitution were left to the federal government and these were largely confined to the Supreme Court. Madison’s characterization of judicial review by the Court was not always consistent, but in his retirement years he solidified his view that in deciding the boundaries between the states and the federal government, the Supreme Court should be given primary responsibility. The fact that this trust had been abused by the Court at times still did not disprove Its existence. As he wrote to Jefferson:

I am not unaware that the judiciary career has not corresponded with what was anticipated. At one period the Judges perverted the bench of justice into a rostrum for partisan harangues. And latterly the Court.. . has manifested a propensity to enlarge the general authority in derogation of the local, and to amplify its own jurisdiction, which has justly incurred the public censure. But the abuse of a trust does not disprove Its existence. (Madison to Thomas Jefferson, June 27, 1823 in Hunt, WRITINGS, IX, 471-477)

   Although Madison complained about the nationalistic tendencies of the Marshall Court, he did not question that the Court was the final constitutional arbiter. In fact one of the complaints by Madison in the celebrated case of McCulloch v. Marvland, 4 Wheaton, 421, (1819) where the Court upheld the right of the federal government to establish a national bank, but denied Maryland the power to tax it, was that the Court was trying to abandon its role of judicial review by its ends and means doctrine. Madison read the decision to mean that both the constitutionality and the expediency of means for carrying a specified power into effect were interchangeable terms. if this were true then the Court could no longer review federal legislation because Congress, not the Court would elide its ends into means of which It was the sole judge. Madison indicted the Court for this train of thought which would undercut its responsibility for judicial review of unconstitutional acts of Congress ( Madison to Spencer Roan, Sept. 2, 1819, in Rives and Fendall. anon.eds., LI ru RS AND OTHER WRITINGS,III, 143-144).

     Although Madison was concerned that the Court’s position would threaten the division of powers between the general and state governments, he was even more concerned that its ends means doctrine would confer an unprecedented power on Congress through which the voice of majorities was expressed. This would obviate the delicate balance of federalism that the Court was constitutionally bound to protect. A balance that was predicated on a compact created by a divided sovereignty.

     The preservation of the union and the Constitution were the two consistent values that can explain Madison’s sometimes Inconsistent views on constitutional interpretation. At times he seemed to advocate states rights, but later he seemed to side with the nationalists. His shifting position was directed at the side that seemed the greatest threat to the Union and constitutionalism at that time. Madison would have liked the Constitution to be interpreted entirely from its own text, but since that was not always possible, Madison turned to the document’s history, the meaning of which he felt was largely given by the ratifying conventions and the first Congress. Even though he placed great emphasis upon maintaining the Constitution as it was understood by the generation that created it, he was conscious of the right of succeeding generations to change It to fit their aspirations. This change should come about preferably by amendment, but also could come by the public acceptance of legislative, and judicial precedent. This explains his revised attitude over the second national bank (Dewey,1971).

     In his last will Madison wrote a brief essay to be published posthumously, titled “Advice to my Country,”:

  The advice nearest my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemy to be regarded as a Pandora with his box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise. (Hunt, WRITINGS,IX,6 12)

   The key to the preservation of the Union was the federal principle inscribed in the Constitution. It has been argued that as one of the authors of the FEDERALIST, that Madison was not really an advocate of federalism, that it was the Constitution’s national features which he approved. Whatever Madison thought about federalism in 1788, he was convinced in his later years as he had watched the operations of the state and central governments that America’s system was the best form of government conceived to date (Dewey,1960.163fl). He even recommended it to other countries as he wrote to Marguis de Lafayette,”. . . a federal mixture. . . will improve any Republic   (Dec. 12, 1830 in Rives and Fendall, anon. eds., Li RS AND OTHER WRITINGS, IV, 141-142).

     Madison declared that the combination of federalism and republicanism had secured the nation against the tendency of every other form of government to either despotism or anarchy. The states prevented the federal government from becoming despotic while the central government kept the states from anarchy. Not only was the nation secured from these extremes, but the benefits of federalism included the possibility of self government on a geographic scale never before possible. We could have both the benefits of a large empire, and the practical advantages of a small country. It would also expand the system of checks and balances, and it would make possible a laboratory for experiments in governance. Madison also believed firmly in the Independence of the states within the union and the need for public education as the key to preserving public liberties (Madison to Petter S. Du Ponceau, May 1821, In Hunt, WRITINGS ,IX,63; Madison to William T Barry, Aug. 4, 1822, in Hunt, WRiTINGS, IX, 103-109. cf. Dewey, 1960,164-165).

     Madison knew that the benefits of the Constitution were dependent on how it was interpreted. An erroneous Interpretation might allow the central or the state governments to Invade the authority of the other, or the shifting of the balance of power between the federal institutions, thereby obviating the federal and national character of the Constitution. The fact that the Constitution would not speak the same language to all people, did not surprise him, but he believe that the ground rules for interpretation began with text itself along with its history (Madison to Sherman Converse, March 10, 1827. In Rives and Fendail. anon., eds., LETTERS AND OTHER WRITINGS, 111,518-19).

     To guard against a faulty reading of the Constitution the Ninth and Tenth Amendments were added for “greater caution.” Intended as a guide to the construction of the rights of the people and the powers of the states, they were premised on the notion of popular sovereignty. Their interpretation by the Court over the history of the Republic reflects the dialectics of politics on the relationship between democratic theory, and federalism. Beginning with Chief Justice Marshall In McCulloch v. Maryland 17 U. S. j4 Wheat) 318(1819), the Court surmised that political checks would enforce the powers of the states and the federal government. The Court modified this position under its doctrine of laissez-faire economics between 1890-1937 to designate what it regarded as state prerogatives as limitations on federal powers. But the Marshall doctrine re-emerged with the conversion of the Court under the New Deal. Justice Stone concluded that the Tenth Amendment was a truism, “all Is retained which has not been surrendered,” (United States L Darbv. 312 U.S. 100, 124(1941). It wasn’t until 1976 that the Court again attempted to give real limits to federal power under the Tenth Amendment, (cf. National League  Cities L Usery, 426 U.S. 833 (1976). But, within a decade it repented (cf. Garcia Antonio Metropolitan Transit Authority, 469 U.S. 528 (1985), and Justice Blackmun reaffirmed Marshall’s interpretation that, “special restraints on federal power over the States Inhered principally in the workings of the national government Itself, rather than in discrete limitations on the objects of federal authority,” (Ibid.,552). Madison’s original criticism of McCulloch was the Marshall had failed to distinguishing effectively between the means and ends of the enumerated powers, thereby effectively resigning its function of judicial review over Congress. This resulted In a method of constitutional interpretation that would refigure sovereignty and federalism for the Republic. Behind the preservation of the Union for Madison was the hope of democratic theory, providing balance between liberty and power in the American empire. Concerning this principle Madison wrote Washington In 1787:

 

  The great desideratum in government is, so to modify the sovereignty as that it may be sufficiently neutral between different parts of the Society to control one part from Invading the rights of another, and at the same time sufficiently controlled itself, from setting up an interest adverse to that of the entire Society. (MADISON, X, 214)

    At the close of his life Madison reiterated his premise for democratic theory under federalism, that a divided sovereignty kept In balance was the best hope for liberty:

It becomes all, therefore, who are friends of government based on free principles, to reflect, that by denying the possibility of a system partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety been duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the earth. (“On Nullification,” 1835-36, Hunt, WRITINGS. IX, 606)



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Caplan, Russell L. 1983. “The History and Meaning of the Ninth Amendment.” 73 VIRGINIA LAW REVIEW,223. Repilntedin Randy E. Bamett, ed. 1989. THE RIGHTS RETAINED BY THE PEOPLE: THE HISTORY AND MEANING OF THE NINTH AMENDMENT.Lanham, MD: University Publishing Associates, Inc., 243-290.

Dewey, Donald 0. 1960. ‘The Sage of Montpelier~ James Madison’s Constitutional and Political Thought, 1817-1836.” UnpublIshed Ph. D. Dissertation: University of Chicago.

Elliot, J., ed. 1836. THE DEBATES IN THE SEVERAL STATE CONVENTIONS ON THE ADOPTION OF THE FEDERAL CONSTITUTION. Vol. 4. Philadelphia.  
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