Balkinization: Interposition, Intention, and Intellectual History

Interposition, Intention, and Intellectual History

Guest Blogger

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).

Grace Mallon

In 1984, the historians David Blackbourn and Geoff Eley published, in its English-language edition, a book called The Peculiarities of German History. As historians of nineteenth-century Germany, they had observed a familiar pattern in the scholarship emerging from that field since the 1950s. In many of the works they had encountered, the twelve years of government by the National Socialists had come to be treated (‘understandably’) as ‘the awful culmination of modern German history.’ Discovering ‘the roots of Nazi success’ had become the encompassing purpose of studying the German nineteenth century. Worthy and important as this purpose might be, and ‘fruitful and . . . compelling’ as its results often were, the single-minded pursuit of explanations for Hitler’s rise – the desire to uncover the ‘peculiarities’ which had led Germany down this horrific path – had introduced certain distortions into the literature on Germany since the Age of Revolutions. While not seeking to advance an argument ‘that the advent of Hitler was a historical accident,’ or to ‘deny the “continuity” of modern German history,’ they sought to produce a work in which this period would not be ‘reduced to the ante-room of Nazism.’

The American Civil War was a different animal from the Third Reich, of course, in both its historical consequences and its role in national memory, operating both as a human tragedy on a vast scale and a bloody revolution for freedom. But it has often played a similar role in historical writing on the United States after the Revolution, and especially in historical writing on federalism. The first half of the nineteenth century is even referred to as the ‘antebellum’ – an ante-room indeed.

There are tantalizing hints of impending disaster in the historical record surrounding the state-federal relationship. Working back from 1861, we can easily link up the key developments that would appear to contribute to the radical constitutional thought according to which secession would be justified. Before there was Jefferson Davis and Alexander Stephens, there was John Calhoun and the other South Carolina nullificationists; before South Carolina, there was a New England that refused to co-operate with the federal government even in a time of war with a powerful foreign empire; and before New England there was Virginia and Kentucky’s resistance to the Alien and Sedition Acts, supported by Jefferson and Madison’s risky intellectual grapplings with the nature of the American union and the states’ role within it. At the very beginning of it all, in 1790, there was Virginia’s furious ‘memorial’ claiming the unconstitutionality of the Funding Act, which prompted Alexander Hamilton’s tremulous response: ‘This is the first symptom of a spirit which must either be killed or will kill the constitution of the United States.’ The foreshadowing is almost irresistible.

But one of the great services done by Christian Fritz’s new book on the state-federal relationship is to remind the reader that, as much as Hamilton’s words might send chills down the spine of a twenty-first-century historian, his dire warning seemed overblown to those who lived and breathed the political culture of federalism in the early republic. John Jay, the recipient of Hamilton’s letter, wrote of Virginia’s anti-assumption resolutions in his reply, ‘To treat them as very important might render them more so than I think they are.’ Remonstrances like the Virginia memorial, and other forms of state protest against federal laws that legislative majorities deemed unconstitutional, while frequently contested by political minorities in those legislatures, were in fact the bread and butter of constitutional debate in the late eighteenth and early nineteenth centuries. Sometimes a strongly worded letter is just a strongly worded letter, and not the opening volley of a gruesome multi-year conflict. Despite the fact that government under the U.S. Constitution was accompanied from its earliest days by state remonstrances against a great variety of federal laws, the edifice of federal union survived seventy years before it was overtaken by catastrophe. State protest in and of itself was not necessarily toxic to the constitutional order.

Of course, while challenging teleological treatments of state protest, Fritz also demonstrates the substantial consequences it has had for law and politics across the history of the United States since ratification. By drafting resolutions and circulating them around the union, by instructing their senators and making requests of their federal representatives, state legislators before and since the Civil War have been able to bring about changes in federal law and take on leading roles in campaigns for amendments to the U.S. Constitution. States have justified their constitutional critiques of federal actions by claiming for themselves the role of representatives of the American people, or at least, a considerable proportion of that people. The fact that their challenges have often been taken seriously by the national political community is not just a matter of pragmatism (though that certainly has been a factor): it is also a sign that their self-presentation as representatives of the popular will has at different times been accepted at the federal level, as Fritz, the expert historian of the idea of popular sovereignty, explains (p. 36).

Another especially useful contribution of Monitoring American Federalism is that, while Fritz acknowledges the special significance of slavery and race to the history of intergovernmental conflict in the United States since 1790 – ‘Most debates over divided sovereignty involved the protection of slavery’ (p. 2) – he also does the important work of separating state protests against and challenges to federal law from any automatic connection to the South, or to slavery as a policy issue. Pennsylvanians, New Yorkers, and New Englanders were no strangers to the constitutional technology Fritz calls ‘interposition,’ and he narrates in meticulous detail the many occasions on which states above the Mason-Dixon line participated in challenges to federal laws.

The most difficult question that confronts the historian who considers these issues, though, lies in making a normative judgement about state protests against federal law. To write about a constitutional phenomenon so intimately (if sometimes incorrectly) linked in the minds of specialists and of the reading public with the protection of slavery and the destruction of the union is to be forced by conference audiences, editors, and students to take a position on whether state challenges to federal law are in general a ‘good’ or a ‘bad’ thing. For those who teach constitutional law to future lawyers in a historical moment when radical and extreme constitutional interpretations have gained currency among large proportions of the U.S. population, the question is even more pressing.

Once one has learned a little about federalism, it becomes difficult to argue that state resistance has been Bad In General across all of American history. State resistance to the Fugitive Slave Laws, which Fritz ably dissects on pages 234-254, is a crucial antebellum example (as, in their way, are the Virginia and Kentucky Resolutions), while examples of progressive questioning of, and resistance to, federal policy programmes led by state and municipal governments abound in more recent periods.

That said, state legislatures have regularly been used as vehicles for the most illiberal of actions in protest against, or in active violation of, the laws of the union, as Fritz also exhaustively demonstrates. How can we usefully distinguish what is a justifiable use of ‘interposition’ and what is not, without simply falling back on our own political preferences? This is one of the challenging tasks that Fritz takes on in this work.

His solution is twofold. Part One is, understandably enough, to reject the legitimacy of state actions that were designed to protect slavery and segregation. Part Two is the test of Madisonianism. Fritz identifies James Madison (and to some extent Alexander Hamilton) as the fons et origo of ‘interposition’ as a constitutional mechanism, which Publius recognized as a potential means of resisting federal despotism during the ratification debates, and which Madison again described, and to which he gave the name Fritz uses throughout the book to describe state protest, in the Virginia Resolutions of 1798. He argues that Madisonian ‘interposition’ was fundamentally intellectually distinct from nullification, and that nullifiers and secessionists who attempted to justify their views by drawing on Madison’s intellectual authority were inevitably relying on misconstructions of the great founder’s intentions, as Madison himself repeatedly insisted (pp. 93, 104-105, 218, and elsewhere).

Fritz’s treatment of The Federalist is able and intriguing, especially given its focus on numbers from the essay collection that explore the problem of practical relations between the state and federal governments, and which are too little discussed by most scholars who engage the work (p. 25). He highlights how both Madison and Hamilton identified in their contributions a process similar to state remonstrance or ‘interposition’ – similar, in places, to nullification (p. 30) – as a foreseeable response to federal overreach. My main questions about this section stem from Fritz’s repeated suggestion that there was some kind of causal link between, on the one hand, Madison’s and Hamilton’s descriptions of state resistance to federal policy in The Federalist, and on the other, the practice of state remonstrance and challenging of federal laws in the aftermath of ratification. The author acknowledges that existing scholarship shows Publius’s influence to have been limited in the context of the ratification debates themselves (p. 25). In my own reading in state legislative records in relation to the question of state resistance, I have not seen much of Publius ‘provid[ing] justification for those who employed interposition after ratification’ (p. 29). Fritz cites Publius as being invoked once during the debates on the Virginia Resolution, ten years after the ratification debates, and by some state judges in the Virginia case of Hunter v. Martin, Devisee of Fairfax (1814), though his authority as a constitutional commentator was also rejected by others (pp. 110, 165-167, 171).

One might question whether The Federalist provides the right starting point for thinking about state practices of protest against federal laws. If most state officials who produced resolutions challenging the constitutionality of federal laws after 1789 were in fact influenced by Publius’s reasoning, I would like to see more evidence to that effect. Moreover, the question of state practices is perhaps worth reflecting upon alongside questions of intellectual heritage. Might we not also take seriously the influence of institutional memory on state legislative practice in the early national period? By the time of the American Revolution, colonial assemblies in North America had spent decades, in effect, remonstrating against different measures of the metropolitan government. Although their role in the selection of senators under the Constitution provided state legislatures with direct representation in Congress in the eighteenth and nineteenth centuries, decreasing the likelihood of intractable intergovernmental tensions, it would not be surprising – would, in fact, make sense – if certain practices of the pre-Revolutionary period were carried over into the new republic. While it would also be reasonable to expect that suitably republican justifications would have to be prepared to support state interventions concerning the constitutionality of federal laws, perhaps ‘interposition’ had roots in the old imperial order.

My other question is about Madisonianism as a key test by which Fritz distinguishes between ‘good’ and ‘bad’ uses of state protest. Madison’s intentions as to how his contributions to the political philosophy of federalism should be read are highly privileged in Fritz’s account of debates on ‘interposition.’ Madison’s ex post facto justifications of writings that had been dragooned into the service of nullification are given considerable airtime, and his status as an almost disinterested authority on the Constitution’s true meaning is tacitly accepted throughout the work. For legal scholars engaged in debates about how to read the Constitution today, this approach makes a lot of sense. To establish the kinds of state actions of which James Madison would have disapproved will, one hopes, have a meaningful impact on the ways Fritz’s readers, jurists among them, adjudge state behaviour in the present.

In historical terms, though, we might take a moment to acknowledge some of the complexities of Madison’s role, and put in context some of his later interventions into debates around federalism and the legitimacy of state protest. I would welcome further discussion of the personal and political circumstances in which Madison found himself as he attempted to justify his theory of interposition in the era of nullification, including his sense of the risks to his own reputation as he neared the end of his life. Many of the causes whose proponents armed themselves with the ‘principles of ‘98’ may have been both morally wrong and dangerous to the welfare of the union, but whether the uses of Madison’s words by their proponents were in fact intellectually unjustifiable – as he, and Fritz, both claim – is another question. Historically speaking, the ways in which his works were in fact received is certainly as significant as the ways he intended them to be received.

Grace Mallon is the Kinder Junior Research Fellow (Postdoc) in Atlantic History at Oxford University’s Rothermere American Institute. Email address: grace.mallon@rai.ox.ac.uk

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