Interposition:Part Two: Publius and the Federal Check to National Power

Among the defenders of the Constitution, a great deal was said about the states as a check to the power of the national government that informed the first ideas about interposition. 

Madison’s contention in Federalist 39 is well-known. Our union was to be “partly federal and partly national.” Among the premier federal attributes were such provisions as the equal representation of the states in the Senate by senators appointed through state legislatures, portions of the Electoral College, portions of the amendment process, and the very means of ratification through conventions of the sovereign peoples of the various states.

This last attribute is often not given the attention that is due to it, but James Madison made this point repeatedly in other venues as well. He noted it in various letters and in the state ratification convention in Virginia. It is a major part of the argument against the notion put forward by his critics that the Constitution would establish a consolidating government.

Here is what Madison’s Publius said: “[T]his assent and ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent states to which they respectively belong. It is to be the assent and ratification of the several states, derived from the supreme authority in each state…the authority of the people themselves. The act, therefore, establishing the constitution, will not be a national, but a federal act.”

This point was repeated again in Virginia’s ratifying convention. The reason was to assure the Constitution’s critics that the sovereign power of the people of the states was not being usurped. If a simple national majority, he reasoned, were all that was required to form the union, then the majority of all the people of America could bind Virginia or Rhode Island even if they had voted in the negative. This was not the case he assured his opponents.

But beyond ratification, did this conception of sovereign power have any other constitutional implications for the states? What exactly is the relationship between the people of the states and the national government? What if there is a dispute between them? This is where Publius becomes more ambiguous, and it is from here that much of the controversy concerning Madison himself originates.

In the same essay, Madison went on to argue that national supremacy meant that a national tribunal must determine the legitimacy of national laws, at least “so long as they are objects of lawful government.” Setting aside for a moment what is meant by “lawful,” he asserted, “It is true, that in controversies relating to the boundary between the two jurisdictions [state and national], the tribunal which is ultimately to decide is to be established under the general government.” This is necessary, he believed in order “to prevent an appeal to the sword, and a dissolution of the compact.” Really?

Where then resides the hoped for check to centralization? Here it rests on the impartiality of the judges of the court, for whom “all the usual and most effectual precautions are taken to secure this impartiality.” The difficulty is that the very contest presumes an illegality. A state would not contest a national act unless it thought the act to be unlawful; that is to say, not permitted by the Constitution. Is it then reasonable to conclude that they will rely upon the judgment of a national court?

We cannot really set aside for very long consideration of what is meant by “lawful,” and soon after ratification, Madison comes to make this very point. It really depends on the degree to which a state feels wronged, and the degree to which it believes a national tribunal will likely vindicate its position, as to whether or not it will accept whatever the court considers “objects of lawful government.”

The very wording of Madison’s argument, the awkward insertion of “It is true…,” given as if to make obvious by assertion what was in fact not obvious at all, seems to confirm just how uncomfortable he was in making the case. The other essays of Publius leave it aside entirely to speak of the states and their critical role as checks to national incursions in more robust tones.

Alexander Hamilton brought this out with special clarity in Federalist 33 where he took pains to assert that “it will not follow…that acts of the larger society, which are not pursuant to its constitutional powers but which are invasions of the residuary authorities of the smaller societies will become the supreme law of the land.” No, he stated pointedly, “These will be merely acts of usurpation, and will deserve to be treated as such.” And what might that be?

In Federalist 47 Madison presented quite dramatically the ample means of redress available to states to resist any federal measures legal or otherwise. These means, he assured his readers, “would present obstructions which the federal government would hardly be willing to encounter.”

By Federalist  51, federalism is considered one of the essential checks to power, alongside the separation of powers, for protecting liberty. The fact that both national and state government are divided into separate branches, as well as into separate governments affords a “double security,” he noted, to the rights of the people: “The different governments will control each other; at the same time that each will be controlled by itself.”

These sentiments were expressed even more strongly by Hamilton in Federalist 17. Here he noted, “The separate governments in a confederacy may aptly be compared with feudal baronies; with this advantage in their favor, that from the reasons already explained, they will generally posses the confidence and good will of the people; and with so important a support, will be able effectually to oppose all encroachments of the national government.”

In 28 Hamilton carried the idea further: “It may safely be received as an axiom in our political system, that the state governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority.” How? By “possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community.” What exactly did this mean?

A number of modern commentators (Harry Jaffa for example) draw a very sharp line between ordinary constitutional and extraordinary revolutionary means. The first are the formally approved processes by which disputes are resolved. Madison’s impartial tribunal is a principal example. Here the federal check resolves itself into the idea of the states as plaintiffs. All other modes of interposition, however, are classed by these writers among the second category: extra-constitutional rebellion or revolutionary, an appeal to heaven, a trial by combat or ordeal.

But ideas about constitutional action at the time of the ratification debates were not so easily parsed.

The English constitution was itself the product of both formal and informal processes. It was composed of acts of Parliament, of court precedents, as well as resolution by ordeal. Such was the Coronation Agreement of Henry the First in 1100. Such was Magna Charta, wrested from the king by confrontation with the barons on the banks of the Thames. It was no mere coincidence that his majesty was convinced to give his assent while surrounded by superior forces. The same went for the Petition of Right in 1628 and the Declaration of Rights of 1689. The American colonial perception of the imperial constitution simply continued this long stream of development.

When Winthrop took the colonial charter with him under terms settled in the Cambridge Agreement, he was asserting Massachusetts’ right to be an internally self-governing colony beyond reach of the mother country. When Virginia resisted the imposition of Anglican bishops throughout the 17th and 18th centuries, it was ensuring its right to determine its own internal governance. When the New England colonies arose in opposition to Governor Andros in the Glorious Revolution they were preserving, through precedent, their right to an independent corporate existence for purposes of internal self-government. When committees of correspondence and the Son’s of Liberty were formed to resist later intrusions, they drew from this long train of precedents.     

Thus the various non-importation agreements and the initial resistance of Americans leading up to the Revolution were seen to be the very instruments of lawful opposition to acts held to be unconstitutional according to the American view of the unwritten imperial constitution. At all costs, the acts of the ministry were to be resisted lest dangerous new precedents be established and thus made constitutional by acquiescence. Only when all those modes of checking unlawful power failed did the Americans issue the Declaration of Independence. In large measure the grievances can be read as lamentation for that lost constitutional tradition, a paean in negative of what it was meant to be: decentralized and composed of internally self-governing colonies, each enjoying its full share of the inestimable rights of Englishmen.

For this reason, the meaning of constitutional action was very much open to debate in the early republic. The language of checks and balances implied the active opposition of forces. Such a sense of constitutionalism drew from the most ancient traditions and stretched back into time immemorial.

Of course all lawful acts of the national authority under the Constitution were to be considered supreme. The problem comes when some parties consider those actions to be unlawful. Much would have been clarified if Publius had merely stated that even unlawful national acts had to be complied with, but nowhere was this construction of the meaning of supremacy made explicit.

Perhaps the best definition of what is lawful is whatever the sovereign power is willing to peacefully accept. Since sovereignty in America is constituted by the people in the various states, it seems reasonable to consult their senses of the proper range of state actions respecting the checks to centralization, and on this score much was actually said and done in the statements of ratification themselves.

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