Posts Tagged ‘interposition’

Both Jefferson and Madison were keenly aware that a direct assault upon the Alien and Sedition Acts would likely bring on them the same charges of seditious libel as had been leveled against Congressman Cabell of Albemarle. Wholly aside such risk, the personal views of both men were already well established. Madison had resisted from the floor of the House everything from the bank bill forward, as had Jefferson in various capacities from within the Washington administration and later on from Monticello. In fact Jefferson had been supporting challenges to seditious libel through various jury petitions in Virginia. 

What became apparent first to Jefferson and then to Madison was the need for a fundamental statement by the peoples of the states or their representatives. Such an act would stand the best chance of awakening Americans to the dangers of the particular constitutional constructions being proffered by the Federalists as well as to the specific abuses in the offending acts. Consequently, both men worked in secret to coordinate the involvement of certain state legislatures in late 1798.

In pursuing this course of action, both men were relying directly on the idea of the hue and cry, the idea noted in Hamilton’s 84th essay. Both produced draft resolutions, Jefferson for Kentucky and Madison for Virginia, that made good on the claim that the states would be “so many sentinels over the persons employed in every department of the national administration.” To that end, both resolutions, as passed by their respective legislatures, Kentucky on November 10 and Virginia on December 21, were purely declaratory in nature.

It is true that in the first case, Kentucky’s language was stronger. The Alien and Sedition Acts were declared to be “void and of no effect,” “void and of no force,” and “utterly void and of no force,” but no interdiction was declared. The state was not going to obstruct federal agents. It was not going to arrest or in any way intercept national authorities. Indeed, it merely instructed its “senators and representatives in Congress” to “procure, at the next session of Congress, a repeal of the aforesaid  unconstitutional and obnoxious acts.”

Jefferson’s original draft announced that “a nullification of the act is the rightful remedy,” but even here, he merely noted that Kentucky was “from motives of regard and respect for its co-States,” communicating with them on the subject in hopes of coordinating a response. The final version approved by the legislature, preserved this communicatory function, but worked through the offices of the governor, rather than a committee of correspondence, which was Jefferson’s original idea. From this, it was hoped, the states would “concur in declaring these acts void and of no force, and will each unite with this commonwealth, in requesting their repeal at the next session of Congress.”  

Virginia’s version was not far off the mark in tone, but where Kentucky used “void and of no force,”Virginia declared that “the aforesaid acts are unconstitutional.” Publius had already observed that unconstitutional was synonymous with void and of no force. The real difference between the two statements is not found here.

With Virginia’s Resolve, no appeal is made to instruct Congressional representatives, but simply a request that each state take “the necessary and proper measure…for co-operating with this State in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively or to the people.” Usually counted as far more measured in response, here Madison leaves open the possibility of direct interference through coordinated state actions. Even more peculiar is his use of the phrase found specifically in the Constitution, “necessary and proper.”

In the fourth article of the Virginia Resolve, Madison expounded on his particular grievance against the Bank of the United States:  the abuse of the necessary and proper clause. He does not specifically quote the words, but his reference would have been unmistakable to anyone at the time. Thus he lamented the spirit which seeks “to enlarge its powers by forced constructions,” revealing “a design to expound certain general phrases…so as to destroy the meaning and effect of the particular enumerations….”  Why use the necessary and proper clause to concludeVirginia’s resolution?

Without using words like “void” or “of no force,” words that one might expect to signal the announcement of a more radical intercession, the Virginia resolve, in point of fact is ominously more radical for what it did not explicitly say. Madison’s choice of words conveyed a sense of urgency that hint at more extreme action: “the States, who are the parties thereto, have the right, and are duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.”

“Arresting evil” and “maintaining rights” are words that do not wait. But aside from communicating the illegality of the offending acts to her sister states,Virginia’s resolve falls silent as to any specific measure or response. Madison simply ended with a call for the “necessary and proper measure.” A startling use of words indeed! It was a slap in the face of Federalists, casting back at them the very clause which they had rendered ambiguous by their own “forced” constructions of the Constitution!

Thus among the earliest acts of interposition was the “hue and cry.”

In his January 1799 statement to explain Virginia’s 1798 resolution, Madison directly noted the duty of “the state legislature to watchfulness.” It was the act of Hamilton’s sentinels fulfilling the role that Publius had set out for them, and it was done in defense of constitutional limits, “to preserve unimpaired the line of partition.” Interestingly, he specifically cited Virginia’s statement of ratification to support this understanding, and then went on to contend for the need of interposition on the part of the states, quite explicitly revising his thoughts since the 39th essay.

Rather than resting all authority for resolving disputes on the national court, Madison drew from his understanding of the people of the states the idea of the Constitution as a national compact, arguing now that the Supreme Court possessed final authority only over the operations of the general government, “but not in relation to the rights of the parties of the constitutional compact, from which the judicial as well as the other departments [executive and legislative] hold their delegated trust.” If the judiciary “may exercise or sanction dangerous powers,” then the states as parties to the compact “must themselves decide in the last resort, such question as may be of sufficient magnitude to require their interposition.”  

In its follow-up statement of 1799,Kentucky moved the issue a bit further down the road,  observing that a “nullification” would be the “rightful remedy,” but ended only with “its solemn PROTEST.”

In these various statements, the resolves of Virginia and Kentucky made good on the intentions of the state ratifying conventions and set a firmer precedent for future action, though at the time, many of the states responded negatively to their presentations. New York, for example, had fallen into the hands of the Federalists shortly after the ratification of the Constitution and in the wake of anti-French sentiment.  But the populations were still very much closely divided, and in the election of 1800, Jefferson and the Republicans were largely victorious outside of the New England states. The influence of the resolves in this outcome is a matter of some debate, but they likely helped to embolden the republican press which had its influence on the elections. In that respect, they were not in vain.

More importantly, the arguments which the resolutions kept alive, had their influence in later very critical debates picked up, not so much by the Jeffersonians or their heirs, but by the New England Federalists, who soon began to resent the actions of the republicans in the nation’s Capital, especially as they related to growing tensions with England and the interference with trade…

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A rumble can be heard emanating from assemblies and governor’s mansions across these fruited plains. It is a sound reminiscent of by-gone days that echo down through centuries of constitutional thought. Prompted by everything from unfunded Congressional mandates to the new omnibus healthcare bill, (See here and here) these reverberations strike cords of distant legal memory that are, for most of us, only imperfectly recalled.

For many, talk of state’s rights, interposition, and even nullification brings forth unsavory recollections of illiberal and tyrannical state and local institutions of chattel slavery, Jim Crow and the color bar. That association is understandable given the prevailing interpretation presented in classrooms, but very unfortunate if we stop there.

One of the most essential roles of states in any federal system is to act as counterweights to centralization. For this reason all power is not assigned to the national authority. In the original constitutional design of the American federation, what was not given was reserved to the states or to the people thereof, and it is from this perspective that the check to central power, the bite of Federalism, was to be derived in its most essential forms.

The idea of states as checks to national concentration pushes the bounds of constitutionalism, but it was understood that however approached, and by whatever means undertaken, this role was not to be pursued for light or transient reasons.

The idea of interposition took many forms. It could embrace official expressions of disapproval by the legislature or governor of a state. It might entail simple, non-cooperation with federal authorities, such as a refusal to enforce a federal law, or acknowledge a mandate. Or, it might take the form of an unofficial understanding on the part of local groups and institutions, usually operating under the tacit approval of the state, not to comply with federal measures.  In its most extreme form, interposition could assert the right to interdict the enforcement of an offending provision through an act of outright nullification. How far a state might go in pursuit of this last line of interposing itself is a question of some delicacy.

Preventing by official policy or action the enforcement of a federal measure stresses the limits of constitutionality. If either of the contending powers moves from peaceful toleration or acquiescence to violence, the episode takes us from the realm of the legal to the revolutionary. For this reason, nullification has always been the most dangerous and the most controversial form of interposition.

The basis for the authority of all these options, however, remains rooted in the constitutional ideal itself. It was not the product of a mean or unnecessary political expediency. On the contrary, the idea of interposition was an attempt to sort out a vital constitutional principle and was first articulated, not to defend slavery, but to support free speech, free trade, peace and the liberty of fugitive slaves.

Federalism in all its various forms can be an instrument for good as well as ill. Like any political order, its quality is determined by the people who compose it. To really understand why the states are again making noises of interposition, we need to understand something of the history of our federal structure of government. The reason new life is breathed into old thoughts has everything to do with what rests at the center of our political existence.

Why do we have states? Lincoln made the claim that the Union preceded the states. What he could not say, however, was that the federal government as constituted in 1787 preceded them, because clearly it had not. The main thrust of Lincoln’s reasoning was that the Revolution and the move for independence began as a united effort. The implications of that claim are still debated and one need only recall the exchanges between Mel Bradford and Harry Jaffa on this point. What is certain, however, is that the federal government did not create the states. What then is the role of states in our federal order?

The authors and advocates of the Constitution, whatever they may have thought privately, were not free to assert any desired construction, but had to contend for the support of the peoples of their various former colonies. They needed to address directly the concerns of liberty that had animated the move to independence, and more specifically they had to allay the fears raised by their critics, the Antifederalists. In this way, whatever hidden motives might have existed, it is the stated intentions of the Federalist advocates that must bear legal weight.

Among the primary objects of the Revolution was to secure the liberty of the colonies to determine the disposition of their own properties, free from arbitrary imperial commands. American anxieties of the late eighteenth century grew in direct proportion to the growth of imperial designs by King and Parliament.

The Antifederalists are often called the old revolutionaries as much for their actual age as for their adherence to older ideas about colonial liberties. The list of such advocates is long and venerable: Brutus, Federal Farmer, Cato and Centinel. My favorite, however, is one not so generally recognized, but to my mind, gave the reasons for decentralization and the existence of states most succinctly and eloquently: Maryland Farmer. He took a long range perspective based on some very ancient precedents.

Edward Gibbon’s first volume of The Decline and Fall of the Roman Empire came out in 1776, and like other important works of its time, Americans were eager to read it. By the time of the Constitution, Maryland Farmer had imbibed its central lessons and recognized how closely its themes complimented American experience. He disputed the charge often heard that the states, if not united under one supreme head, would soon be at each others throats. No, he said, citing Gibbon, real terror is to be found where there is no hope of escape, no exit.

Anticipating the role of competing jurisdictions, Maryland Farmer cautioned against rejecting the Articles of Confederation, observing that “In small independent States contiguous to each other, the people run away and leave despotism to wreak its vengeance on itself; and thus it is that moderation becomes with them the law of self preservation.”

The referenced passages of Gibbon illustrated that understanding nicely. Noting the ease with which a person onerous to power could escape in the Europe of his day to the safety of a rival state, Gibbon pointed to the very different reality of the ancient empire: Rome, he observed, came to fill the world, “and when that empire fell into the hands of a single person, the world became a safe and dreary prison for his enemies.”

Maryland Farmer took that point to heart and asked Americans, who had just fought a war to resist the imperial designs of England, was it all simply to consolidate power in your own hands? He hoped not.

So strong were these sentiments in favor of decentralization, Federalists had no choice but to address them. Some of the most eloquent passages of the Federalist Papers were set out with the explicit aim of refuting the consolidationist claims of the nature of the Constitution. Indeed, more than one of those pieces by Publius was penned by that arch purveyor of centralized authority himself, Alexander Hamilton. In the next part we will examine how Publius attempted to negotiate the question of a federal check to national power, and look at the roots of interposition as they were presented by the supporters of the Constitution.

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