Christian Fritz’s is one of the relatively few historians who have taken with suitable seriousness the implications of “popular sovereignty” and the idea that governmental legitimacy is presumptively dependent on the continued commitment by “we the people” to the acts of governments that may act in our name because they have been authorized to do so by the sovereign demos.  His earlier book, American Sovereigns: The People and America's Constitutional Tradition Before the Civil War (2007) demonstrated the continued possession by many Americans of a sense of their sovereign authority.  They were not content to become the “sleeping sovereigns” envisioned by Thomas Hobbes, which was most certainly the vision of the Framers with regard to the Constitution of 1787.  Just read Federalist 63 and the proud assertion by Madison that the actual demos has no role whatsoever to play in making any concrete decisions.  Everything will be done through “representatives.”  As Fritz so well establishes, though, in their capacity as citizens of states, Americans often viewed themselves as genuine agents, not at all confined to a comatose reality.  Instead, they felt themselves free to act on the premise set out in the Declaration of Independence that they had the right to “alter and abolish” governments at will if that appeared conducive to achieving their public happiness. 

Acting on such beliefs, they seceded not only from the British Empire in 1776, but also from New York and New Hampshire to construct Vermont.  Later, far more unsuccessfully, there were attempts by citizens of several other states to found new breakaway states of Franklin or Transylvania.  Or, perhaps more significantly, citizens of several states, including Kentucky, felt altogether entitled to organize new constitutional conventions to amend or supplant existing state constitutions, whatever formal authorization might (or might not) be found in the existing state constitutions.  All the while, of course, the national citizenry has basically remained asleep, acceding to Madison’s devout wish, in Federalist 49, that they “venerate” the United States Constitution and, in effect, never even think of having a second national convention. 

Fritz’s new book, Monitoring American Federalism:  The History of State Legislative Resistance, is also essential reading.  It casts tremendous new light on the actualities of the American federal system.  The “state legislative resistance” alluded to in the title is alleged overreach by a would-be dominant national government.  The vision expressed is not at all filing lawsuits in federal courts, but instead a far more active “interposition” by state legislatures, deemed to be thoroughly “representative” of their constituents, that attempt, in Fritz’s key metaphor, to “sound the alarm” about threats to the American constitutional order posed by national overreach.

I agree strongly with Mark Graber’s emphasis that we should look at the Constitution as constructing forms of “constitutional politics” and not merely setting out a set of rights (or even limitations on powers) that will be enforced by the judiciary.  This book focuses on the “constitutional politics” attached to a system of federalism.  Toward the end of the book Fritz quotes Woodrow Wilson’s 1908 comment that “the relevance of the States to the federal government” is “the cardinal question” of American constitutionalism.  For better or worse, that may well be true, and only the most naïve can believe that the answers to that question have been provided (or even necessarily should be provided), in any uncomplicated way, by the Supreme Court.  Instead, they have been the product of extraordinarily complex—and, of course, sometimes violent—encounters among all relevant actors within the American political system. 

Fritz is particularly interested in the extent to which state legislatures—and sometimes other state actors, including governors or state courts—have attempted to be active partners in what the casebook that I co-edit with Jack (among others) casebook calls “processes of constitutional decisionmaking.”  As noted, he is particularly interested in the phenomenon of “interposition,” by which state-level institutions “sound the alarm” about perceived overreaching by national institutions.  This will undoubtedly become the book on interposition.  Quite literally, every scholar of American constitutional development will have to contend with this book at pains of being deemed illiterate.  Fortunately, Fritz writes in a sufficiently accessible manner that it can and should be read by any general reader trying to understand the complexities of our sometimes Byzantine political system. 

And it really does not matter whether the reader is “pro-state” or, like me, more a devotee of what was accurately called, by many opponents of the Constitution, a “consolidated” national government with basically plenary powers to pass any and all legislation deemed in the national interest.  The American political and constitutional tradition includes both sides, and to understand its development requires careful attention to all views and not only those one finds most compatible.  There is not a singular “American constitutional tradition” that allows us with confidence to brand those who disagree with as heretics.  The age of “consensus history” has long been over, and that should extend to confident beliefs that there is a genuine consensus about the most pressing issues facing us as a constitutional order. 

I will rely on the invisible hand instantiated in the multiple reviews that are part of this symposium to elaborate various questions raised by the book.  I want to focus on two that I find particularly problematic.  The first involves who gets to provide an authoritative definition of “interposition.”   The second concerns whether “resistance” can be cabined to the relatively anodyne “sounding of an alarm” that Fritz emphasizes, instead of leading quite naturally to the more volatile possibilities first of “nullification” and then, ultimately, of secession.  Fritz wishes to provide no aid or comfort at all to ostensible disciples of Madison like Calhoun or Jefferson Davis.  One can readily understand that, but it is not clear that one can deny any legitimate connection. 

As to the first, Fritz argues that the concern about national overreach, defined at least in part by transgression of presumed constitutional limits, led quite early to the elaboration of the power (and even duty) of states to “sound the alarm” about its occurrence.  Other states would presumably respond and try to figure out the best way to alleviate the problem through some kind of collective action.  Crucially, although the “alarm” suggested that the national government was behaving unconstitutionally, the notion of “interposition” did not entail that states could “nullify” the errant national legislation.  That suggestion was found in the far more hot-headed draft of the Kentucky Resolution prepared secretly by then-Vice President Thomas Jefferson. The more temperate James Madison instead developed the moderate notion of “interposition.”  I am fully prepared to believe that. Madison is correctly viewed as the founder, as it were, of interposition doctrine, not only in the Virginia Resolutions and Report, but also in the essays of The Federalist.  I first became aware of this in a brilliant essay by Stanford historian Jonathan Gienapp that was published in a book that I edited on nullification and secession in contemporary constitutional theory. Fritz emphasizes that the “Doctrine of 1798” in fact builds on what was already there, for those reading carefully, in several of the Federalist essays.  Those emphasized the extent to which state institutions, primarily legislatures, would serve to monitor the national government and thus prevent the dreaded “consolidation” that the Constitution’s opponents were describing.  Even Hamilton, sincerely or not, presented this by way of trying to assuage his opponents’ fears of the forthcoming constitutional order.  But Madison’s Virginia Report is the most developed articulation of the “interposition” doctrine, sharing intellectual space with Jefferson’s Kentucky Resolutions, which were more hotheaded and for many serve as the intellectual forbearer of nullification and even secession. 

A major theme of the book is that almost literally everyone has “misunderstood” or “distorted” Madison’s arguments and conflated his very careful and nuanced theory of interposition with more radical and “dangerous” theories of nullification.  For Fritz, the key notion of Madisonian interposition is that it was a means by which state legislatures (usually) would “sound the alarm” about national overreach and, having sounded the alarm, hope that others in the political system, beginning with sister states, would agree and support measures that would lead, through political processes, to the reversal of the constitutional abuses.  From this perspective, the complaints in 1798 about the Sedition Act were successful:  They arguably aided Jefferson’s victory in 1800 and the political demise of the Act following its expiration.  Indeed, he argues that even the South Carolina protests against the Tariff of Abominations in 1828, though a fiasco so far as “nullification” was concerned, were nonetheless successful in generating a compromise by which some of the tariffs were rolled back. 

But the point is that “sounding the alarm” is very different from performative declarations of “nullity” or “invalidity” of federal laws.  Fritz draws very careful distinctions between Madison’s analyses of Virginia’s resolutions three and seven.  The latter one, involving interposition, concerns state legislatures and “sounding the alarm.”  The third suggests that under some circumstances the “state”—defined now not as in terms of institutions like legislatures, but, rather, the constitutive “people”—might also enter the fray, perhaps in a stronger way than simply sounding an alarm.  But, he demonstrates over and over again, most (though not all) subsequent “adherents” of Madison’s Report elided the all-important distinctions that Fritz thinks to be central. 

I an left with several questions, though.  The most important is whether Madison comes close to offering a truly satisfactory solution to the dilemma of keeping American federalism on an even keel, assuming, of course, one defines that as fearing the national government and its perhaps natural propensity to overreach.  My own view, adopted from Malcolm Feeley and Ed Rubin, is that federalism as a political system, in the United States and elsewhere, is explicable primarily because geographically distributed groups that basically mistrust and dislike one another nevertheless conclude that they have an interest, usually linked to military defense or economic prosperity, to joining together.  But that decision to come together (to adopt the terminology of Alfred Stepan) does not in the least mean that they lose the mistrust or necessarily learn to like their partners in the joint enterprise.  So it is only natural that states will fear that an invigorated national government will overreach, just as the national government will equally fear that states will shirk from carrying out their responsibilities to the new national system.

On top of this is the set of intellectual challenges posed by the political theory of “popular sovereignty,” which is central to the meta-theories of interposition, nullification, and secession (or their critics).  The Doctrines of 1798 are often linked to the “state compact” theory by which the Constitution is adopted by the legislatures of the “sovereign states.”  Fritz notes that Madison (correctly) rejected that version of the theory, though he did affirm that the Constitution is a compact among the peoples (note the all-important “s”) of the several states, each individual “people” presumably a sovereign.  To put it mildly, the general theory of “popular sovereignty,” including its variant of multiple populi each of whom is sovereign at least at an originating moment, generates what Wittgenstein called “mental cramps.”  Who, after all, is included as part of “the people,” who gets to speak for them, and, at least as crucially, what is their identity and role following constitutional formation?  And, of course, do we accept the possibility that an initially “sovereign people” do not in fact fall asleep, as Hobbes asserted and hoped, or is it possible that they can awaken and reassert their full sovereignty in a way that limited governments established by the sovereign people cannot? 

These various issues have challenged some of the finest theoretical minds since at least the 17^th century, ranging from, among many others, Hobbes to Carl Schmitt.  Richard Tuck’s superb book The Sleeping Sovereign examines the way that a number of political theory “greats” have tried to address especially this last question.  One can bluntly ask whether James Madison, for all of his formidable talents, deserves full membership in this particular pantheon of thinkers.  Or was he, when all is said and done, an unusually interesting politician who was able to write better than most and who presented a number of ideas that he did not in fact fully develop?  And, perhaps, the reason is that the ideas run into inevitable problems, both in theory and in practice.  In any case, I am unaware that he ever actually addressed the formidable body of theoretical literature that certainly existed by the time he was writing.  He may have made himself an expert on “comparative” constitutional systems, but not, so far as I know, on the thought of Hobbes, Locke, Pufendorf, or Rousseau (among others).  This is not necessarily to criticize him, but only to suggest that it is perhaps a mistake to treat him as a genuine political theorist of the first rank. 

But we should acknowledge as well that even if he ranked with truly great political theorists, it remains the case that none can truly control the use made of their ideas.  That’s just not the way that intellectual history works, especially when the ideas are intertwined with pitched political battles.  I ultimately find very odd the idea that one can “sound the alarm” that something truly ominous—and perhaps even dangerous—is happening without implying as well that if nothing adequate is done to meet the danger then “we the people” (or the audience for the alarm) should act ourselves.  The most dramatic illustration of alarm sounding is shouting fire in a crowded theater, which is not meant as an invitation to dialogue.  To be sure, one can presume that “sounding the alarm” interposition does not require the immediate action that shouting fire does, but that still leaves open, at least for me, the necessity to explain why I shouldn’t do more than simply “sound” the alarm if an adequate response is not forthcoming. 

One discovers that discussions of federalism, especially when they turn to the topic of secession, generate the use of marriage analogies—and whether “divorce” within a polity is truly imaginable (and legitimate).  I want to offer my own variation on that discussion.  Imagine that “interposition,” as “sounding the alarm,” is the equivalent of a person in a relationship suggesting that problems have arisen and that it might be a good idea to talk to a marriage counselor.  That may well be an important move, and perhaps it will lead to the resolution of the perceived problem.  But perhaps not.  What is the next step?  Perhaps it is a “trial separation,” which I will compare with “nullification.”  The couple remains formally married, but it appears necessary that they occupy “separate spaces” for a time, with each free, most likely, to experiment and feel liberated from at least some of the constraints perceived in the marriage.  But neither files for divorce, perhaps because both are hopeful that living apart will provide lessons for a fruitful reconciliation.  But, again, maybe not.  At some point, one (or perhaps both) of the partners will decide (or should we say “realize”?) that it is better that they truly go their separate ways, via divorce or secession.  For most “moderns,” at least, all marriages take place within “the shadow of the law” that in fact allows divorce.  But “secession” obviously feels like a much more radical idea (because it is), and one may want to join Fritz in believing that it, or even nullification, isn’t a genuine possibility even if a sounded “alarm” has been ignored.  I am doubtful. 

As noted, much of Fritz’s concern is the presumptive misuse made of Madison’s very nuanced and limited discourse   That misuse occurred not only between the the Founding period and Reconstruction, but it also persists into the present, where those I am tempted to call “federalism buffs” are certainly amendable to the vision of states as sentinels charged with protecting our federal system against predictable national overreach.  Even if later actors “misunderstood” Madison, I’m tempted to say, “so what?” What is far more important than the actualities of Madison’s specific ideas is the actual role they have played in American constitutional politics, all of which certainly involve the dynamics of a federal system of government.  At points, Fritz sounds like an originalist who argues that Madison has a patent on the actual meaning of the terms instead of simply one of the first people to throw some of them out into the intellectual marketplace.  Authors cannot control the use made of their ideas, and that is especially true if the ideas are less than crystal clear. 

As a history of ideas—and of political actions—the book is, as already suggested, a stunning contribution.  Fritz demonstrates conclusively that “sounding the alarm” interposition was a regular practice of American constitutional politics, across the entire country and spanning ideological divides.  Almost everyone at one point of another believed that the national government was overreaching and that, at the very least, an alarm should be sounded (even as some believed that more than alarm-sounding was required).  And those sounding the alarms had a constitutional theory that legitimated their concerns and their actions.  This involved, of course, rejecting the “legalization” attached to viewing the Supreme Court as the institution (solely?) charged with resolving tensions between states and the national government.  Typically, Madison can be quoted on both sides of this particular issue! 

These divides and tensions obviously continue, and Fritz skillfully notes that even today such notions as Heather Gerken’s and Jessica Bulman-Pozen’s “uncooperative federalism” link back to the theories and political actions that go back to the beginning.  At what point does such lack of “cooperation” begin bleeding over to what I have called “neo-nullificationism” or legitimize even renewed mutterings about secession?  At the very least, it should not surprise us that American federalism can never entirely suppress such questions, nor will citation to eminent Founders like Madison or Supreme Court decisions like Cooper v. Aaron convince those who genuinely believe that one or another activity of the national government threatens the core values of our constitutional order.

It is clear that Fritz is not simply a gifted historian of ideas and politics.  He also believes that at least “sounding the alarm” interposition is a truly valuable feature of our constitutional politics and ought to be recognized (and perhaps revived) as such.  He appears to adopt by reference such arguments as those made by Heather Gerken and Jessica Bulman-Pozen and other “new federalists” who are not associated, say, with the Federalist Society and other self-professed “conservatives.”  (It is worth noting that Bulman-Pozen and Miriam Seifter have a marvelous essay, State Constitutional Rights and Democratic Proportionality, about to come out in the November, 2023 Columbia Law Review, one of whose central themes is the greater commitment of most state polities to a vigorous notion of popular political agency than is found at the ntional level.) Still Federalist Society admirers of the "new federalism" articulated by the current majority of the Supreme Court from  two groups can be differentiated from Gerken and Bulman-Pozen by the fact that the latter are very careful to distinguish themselves from proponents of “constitutional federalism,” i.e., judicially enforceable limits on national power.  The alarms to be sounded are only political ones, to be resolved exclusively in the realm of political conflict and not through purportedly “legal” analyses written by judges.  Does it really matter if one’s “alarms” take the form of political protest or, instead, rely on purported constitutional exegesis?  I’m not sure.  What I am sure of, though, is that Fritz casts immense light on important aspects of the historical American constitutional order and how we should think about it even today.