Interposition: Part Three: Virginia and the Reservation of Powers

James Madison frequently contended that the proper means by which to understand the meaning of the Constitution was to consult the sense given to the document in the ratifying conventions of the states. Thus, he contended to Nicholas Trist in December of 1831, “If we were to look, therefore, for the meaning of the instrument beyond the face of the instrument, we must look for it, not in the general Convention, which proposed, but in the State Conventions, which accepted and ratified the Constitution.”

A number of scholars have questioned Madison’s judgment on the grounds that his actions spoke louder than his words. He rarely, if ever, conducted research into the state conventions himself, and when he did reference the past, it was always to consult his own notes of the general convention. Two points must be made in this regard.

Firstly, Madison’s proximity in time gives him a claim that no one alive today can make for first-hand knowledge of the subject matter. He was there. He knew many of the men involved. That he himself did not consult historical documents in any regular fashion is no excuse for us to do the same. He was a primary source in his own right.

Secondly, Madison was present and active in the Virginia ratifying convention, and it is clear that many of the arguments he made in the general convention, were carried forward into that later venue.

It has already been observed in our previous discussion, that his understanding of the people’s sovereignty as residing within the states was a consistent theme. He was also in correspondence with Hamilton at the time of the New York convention and both men were writing as Publius in explicit address to the concerns of the critics in that state. If anyone was familiar with the issues that were extant in the states, it was Madison.

On a related point, other scholars have questioned the veracity of consulting 13 different conventions. Certainly the states did not all think alike. How could we then avoid thirteen different constructions of the Constitution? The assertion sounds impressive, but in reality, there was a great deal of overlap in Antifederalist concerns, and consequently considerable overlap in the Federalists’ responses to them, especially when it came to the matter of amendments.

The call for a Bill of Rights, for example, was a common part of the Antifederalist critique. It was the embrace of this idea by the Federalists that assured the necessary majority to win approval of the original document. For our present discussion, one of the most consistent calls for an amendment was the explicit recognition of the fact that this was to be a government of delegated powers only, reserving all others not granted, not written down in the document, to the states or to the people of the states.

And indeed there is strong evidence affirming both Madison’s familiarity with the state ratification conventions and the relatively uniform desire on the part of the states for an explicit mention of reserved powers during the debates over the incorporation of the first Bank of the United States, while Madison was in Congress.

From the record of that exchange in the first Congress, Madison noted that the acts of ratification “presupposed…that the powers not given were retained…” And shortly thereafter observed that “The explanatory declarations and amendments accompanying the ratifications of the several States, formed a striking evidence, wearing the same complexion.” (Hall, ed., The Documentary History of the Bank of the United States, p. 44).

This particular construction of reserved powers was a fundamental concern of both states of which Madison and Hamilton, the principal authors of the Federalist Papers, had the most familiarity: Virginia and New York­—two of the largest and most populous states at the time.

For many scholars of the southern experience, Virginia has often taken pride of place as the go-to state for understanding the nature of the federal compact. Affectionately remembered as the “Old Dominion,” it has given the country statesmen like Washington, Jefferson, and Madison. Little wonder then that Virginia’s reason for ratification has garnered such attention. If Virginia’s ratification was made with certain understandings in mind, these must shape its relationship to the national charter, and if these understandings reflect those of the other states, its concerns can be taken as authoritative of the compact in general. Thus Kevin Gutzman finds in his Politically Incorrect Guide to the Constitution, “It all comes down to Virginia.”

The essential point is that Virginia wanted to make clear that every power not specified in the Constitution, was in fact reserved to the people of the states. To that end it set forth as part of its statement announcing the act of ratification that it did this with the explicit understanding that Virginia could reclaim its sovereignty if any powers exceeded those written in the document.

At the time, Madison noted this conditional, though in a letter to Washington dated June 25, 1788, he thought it ultimately harmless, since it merely uttered “a few declaratory truths not affecting its validity.” But two days later, he wrote to Hamilton to complain of the impossibility of preventing “the error” from getting into the act of ratification, a copy of which he included with his post. Ultimately he accepted the statement of ratification. Why? It is an interesting puzzle. On closer inspection, the terms in which the conditional is cast are not quite so clear, especially given present misperceptions about the meaning of “the people.” Perhaps Madison was pleased with this ambiguity. Perhaps he didn’t notice. My suspicion runs to the first.

In Virginia’s statement, the operative paragraph makes a peculiar transition that beclouds rather than clarifies the assertion of sovereignty. The declaration begins transparently enough by asserting that the ratification which followed was by “the delegates of the people of Virginia” acting “in the name and in behalf of the people of Virginia.” But then comes the change. Rather than declaring that all powers not granted may be resumed by the people of Virginia, the statement actually asserts that the said powers “being derived from the people of the United States, [those powers may] be resumed by them whenever the same shall be perverted to their injury or oppression…” (Emphasis added)

It may well be, and is most likely the case, that in historical context, this was simply understood in Madison’s original sense of the people as the people of the state, but given present misconceptions, it is not obviously so. Indeed, already at this time, a few representatives in other states, men like James Wilson, were purposefully attempting to make the argument that ratification converted the people of the several states into a united and undifferentiated body, or The People of The United States. Certain later writers like William Cabell Rives explicitly interpreted it in this way. (See, Rives, History of the Life and Times of Madison (1866), p. 607, nt. 1.) Did Madison get cold feet? Did he recognize the ambiguity in the wording? Perhaps he already anticipated his later thoughts in the 1830s.

Be that as it may, it is interesting that this ambiguity in wording is nowhere evident in New York’s statement. Far from a southern root, then, New York reveals a strong northern attachment to the original basis of constitutional authority that is firmly grounded in the people of the several states, even going so far as to explicitly affirm the reservation of certain specific powers until such time as amendments were approved. Indeed, Madison had considerable trouble with this particular statement, and wrote Hamilton of his complaint.

If ever there were a strong affirmation prior to the Bill of rights of what would become the tenth Amendment, its force and legal grounding is to be found, not so much in the South, but in the unequivocal ratification statement of New York. And that will be the subject of the next posting.

One thought on “Interposition: Part Three: Virginia and the Reservation of Powers

  1. For more light on Virginia’s ratification, see Kevin R. C. Gutzman, _Virginia’s American Revolution: From Dominion to Republic, 1776-1840_ (Lanham, Maryland: Lexington Books, 2007), chapter 3; and Kevin R. C. Gutzman, “Edmund Randolph and Virginia Constitutionalism,” _The Review of Politics_ 66 (2004), 469-97.

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