For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).
Christian
G. Fritz
Jack
Balkin deserves huge thanks for organizing this symposium on Monitoring
American Federalism: The History of State Legislative Resistance. I am
grateful for the engagement of all of the commentators. Their close reading of
the book and their thoughtful observations and questions have given me, and the
readers of this symposium, much to think about as we continue to wrestle with
the dynamic nature of American federalism.
Three broad issues emerge from the comments. First, is the question of how to define interposition? Second, is the “slippery slope” question: does the concept of interposition inevitably invite or lead to nullification and secession? And third, does interposition have relevance today? My response below is primarily directed towards those three issues.
How
to Define Interposition within the Broader Scope of State Resistance
Virtually
all of the commentators have raised questions about the definition and terminology
surrounding the term “interposition” and struggles over its meaning. My book
defines interposition as “a formal state protest against actions of the
national government designed to focus public attention and generate interstate
political pressure in an effort to reverse the national government’s alleged
constitutional overreach.” (5) These protests were a subset of “instructing
and requesting” resolutions of state legislatures and form part of America’s
vibrant “constitutional politics,” to use Mark Graber’s phrase.
My
book looks first at the origins of the concept of interposition, early uses of
interposition, and expands to include other forms of state resistance to
federal power that included northern states’ personal liberty laws in the 1850s
and southern states’ actions in the 1950s to prevent integration, as well as
more modern efforts to push back against federal authority. The book analyses
the writings of James Madison as they pertain to interposition and theories of
federalism, but the book is not a defense of either Madison or state
interposition. Moreover, the book does not rely on abstract thinking about
federal versus state relations, but analyses the substantive claims represented
by the economic and political interests of states, including resistance to
federal taxation, debt, militia authority, war powers and infrastructure
investments.
That
said, much of the confusion surrounding the meaning of interposition stems from
the fact that James Madison advanced the idea of two very different types
of interposition, each resting on a different political and constitutional
basis and each calling for distinctly different political action.
During
the debates over the ratification of the Constitution, Madison—along with
Alexander Hamilton in The Federalist—laid out all of the elements of
what the book refers to as sounding the alarm interposition. That form of
interposition was a constitutional tool employed by state legislatures intended
to “sound the alarm” about perceived overreaching by the national government.
Sounding the alarm interposition was designed to work through state legislative
and gubernatorial political pressure in garnering interstate support in efforts
to reverse the alleged overreach.
In
The Federalist, Madison and Hamilton advanced the argument for
interposition as a rhetorical device to help secure the Constitution’s
ratification. Soon, however, this idea of interposition took on a life of its
own, perhaps not unexpectedly as state and federal actors began working out the
meaning of the newly-birthed concept of divided sovereignty and overlapping
jurisdictions.
Neither
Madison or Hamilton used the term interposition in their Federalist essays,
nor did Virginia’s legislature use that specific word when it invoked sounding the
alarm interposition in 1790, and neither did the state legislatures that passed
interposition resolutions in the aftermath of the Chisholm case in 1793.
Thus, without being named as such, the genesis of the idea of sounding the
alarm interposition surfaced in The Federalist and was practiced by
state governors and legislatures after the Constitution’s ratification.
When
interposition was first invoked in 1790 and then later, governors and state
legislators (as well as commentators on their actions) routinely described
their efforts as “sounding the alarm” about constitutional overreaching in the
course of initiating interstate communication. This, as well as explicit
references to The Federalist establishes the “causal link” Grace Mallon seeks between
the early and later practice of interposition and Publius’s essays. (59,
82, 109, 113, 118, 123, 150, 174, 278)
However,
in 1798 Madison introduced a second version of interposition while
drafting resolutions for Virginia’s legislature responding to the draconian
Alien and Sedition Acts. Those Acts contained provisions that Hamilton
considered “highly exceptionable.” (92) Madison invoked the tool of sounding the
alarm type of interposition in Virginia’s Seventh Resolution. But, in
Virginia’s Third Resolution he described a different constitutional principle
that theoretically gave the collective “people of the states” acting in “their
highest sovereign capacity” the power to “interpose” in the final resort if the
national government overreached its constitutional powers in an egregious
manner. My argument is not, as David Schwartz asserts, that Madison used the word interpose
“incorrectly.” Rather, Madison was describing an interposition entirely
different from sounding the alarm.
This
second type of interposition that Madison theorized was an extra-constitutional
action (what he called “ultra-constitutional.”) (218) This action was
not a step that a single state legislature or the people of any single state
could take. Madison described the principle in the Virginia legislature’s Third
Resolution to be “theoretically true.” (121) This Third Resolution version of
interposition was a theoretical matter, independent of the sounding the alarm
interposition described in The Federalist and invoked by the Virginia
legislature in its Seventh Resolution in 1798, as he explained in his Report of
1800.
Sandy Levinson is surely
correct that James Madison left much to be desired as a constitutional theorist,
throwing out ideas that he did not fully explain or develop. If the prospect
for confusion and purposeful misuse was not already great, Madison used the
word “interposition” in his Report of 1800 when identifying the theoretical
right of the people of the states “to interpose” in Virginia’s Third
Resolution. But in the same report, Madison explicitly defended sounding the
alarm interposition without using the term “interposition.” My surmise is that
Madison was indulging in his passion for abstractly theorizing, but he considered
the Alien and Sedition Acts such a dire threat to the newly created
constitutional system that it warranted bolder political language to counter a
federal government willing to destroy freedom of speech and the press.
Indeed,
Madison’s Virginia Resolutions and his Report introduced enough loose
terminology to open the door for those who eventually sought to appropriate the
term interposition to justify the doctrine of nullification. Madison’s
language in the Third Virginia Resolution “effectively narrowed the distance
between sounding the alarm interposition and nullification.” (7) Moreover,
we know that words once placed in the public arena inevitably take on a life of
their own beyond the control of those who initially articulate them.
By
the late 1820s and 1830s, would-be nullifiers had transformed sounding the
alarm interposition by converting Madison’s theoretical statement of a
collective right of parties to the federal constitutional compact into an
option for every individual state to veto or nullify acts of the national
government. Even as Madison and others tried to distinguish sounding the alarm
interposition from nullification, increasingly the term interposition was
interchangeably used with nullification. Such overlapping terminology persisted
even as sounding the alarm interposition continued to be practiced, most
notably by both Northern and Southern legislatures before and during the Civil
War.
Alison LaCroix and Edward Purcell raised two
additional questions about the definition of interposition. LaCroix asks if the
passage of the Eleventh Amendment is best described as “a moment of
interposition.” She accurately captures the complex history that surrounded the
struggle over sovereign immunity in the 1790s, including competing views of jurisdiction
and the nature of sovereignty. Notwithstanding that history and varying
reactions to the Chisholm decision, state legislators did perceive the
decision to be an intrusion on the sovereignty retained by states under the
Constitution, so passage of the amendment included an initial interposition
response.
In
a similar way, the Virginia legislators in 1790 who sounded the alarm about the
assumption of state debts resented that fact that their state (having made
considerable payments on its debt) would bear a greater economic burden than
other states who had not taken steps to fulfill their obligations. State
legislatures that opposed rechartering the First Bank of the United States hoped
to avoid the competition that a national bank posed to state banks. In their resistance,
as with resistance to the Chisholm decision, state legislators also identified
a ground for opposition that squarely rested on the idea that the federal
government had in some manner overreached its legitimate constitutional
authority. In that sense, each of these episodes warrant being considered
examples of sounding the alarm interposition.
Purcell rightly points
out that if the term “interposition” is employed to embrace the range of state
resistance to federal authority and policies from the 18th century to the
present, it “loses any clear and specific meaning.” If, on the other hand, one
focuses on the implementation of sounding the alarm interposition after the
ratification of the Constitution to the 1870s, there is an identifiable
tradition of employing the constitutional tool that Madison and Hamilton
described in The Federalist.
As
Purcell suggests, how to employ the term “interposition” outside of that sounding
the alarm context and beyond the 1870s is challenging. Indeed, when the
Seventeenth Amendment in 1913 created the direct election of Senators, state
legislatures no longer could rely on sending instructions to oppose
constitutional overreaching by the federal government. Yet, interposition
persisted as an ongoing political theory establishing the validity of states
advocating limits on national power and the idea that a monitoring function
should be exercised by state officials or endorsed by decisions of the Supreme
Court.
Was
There a “Slippery Slope” Implied by Interposition?
Even
as Madison and Hamilton described what became the constitutional tool of
sounding the alarm interposition, they occasionally used language that alluded
to potential state resistance that went beyond the pacific limits of that tool
and were arguably grounded in the well-known and widely accepted right of
revolution. Armed resistance or other forceful opposition to the national
government clearly went beyond the sounding the alarm function of
interposition. In noting such language, I indicate that the concept of
interposition was “potentially dangerous from the beginning.” (31)
But
if the idea of political action beyond peaceful protests and declarations was a
possibility recognizable from the start, what is striking about the history of
sounding the alarm interposition is how consistently it was practiced as a
constitutional tool for nearly a century after its articulation. State
legislative actions drifting over the line beyond the sounding the alarm
function were exceptions to the rule. Examples of nineteenth-century slippery
slopes where the line was crossed included: Pennsylvania’s opposition to the Olmstead
case (1803), the Hartford
Convention’s Report (1814), and Wisconsin’s challenge to the Fugitive Slave Act
of 1850. The book indicates how vigorously each of these uncommon occurrences
was met with popular denunciation and opposition from states and the federal
government. Thus, the numerous instances of state resistance through
interposition (including the relatively few examples that went beyond sounding
the alarm) were all part of the inevitable testing of the limits of popular
sovereignty and constitutional rights.
I agree with both Levinson and Schwartz that
Madison was in no position to claim a right to control the meaning found in his
Third Resolution. He bears responsibility for using language that failed to
clearly explain in what ways the sovereign underlying the Federal Constitution
might act in theory and how that hypothetical right was
permissible within America’s constitutional framework.
Madison’s
Virginia Resolutions and his explanatory Report may well have, in Levinson’s
words,
shared “intellectual space” with Jefferson’s draft of the Kentucky Resolutions.
Nonetheless, there was a crucial difference between Madison’s notion of
interposition (either the sounding the alarm version or the theoretical right
of the collective people) and the germ of the idea of nullification (or the
individual state veto) that some have detected in the Kentucky Resolutions.
The
greatest impetus toward nullification in Jefferson’s draft of the Kentucky
Resolutions did not come from his use of the word “nullification” or his
repeated description of the Alien and Sedition Acts as utterly “void and of no
force.” Rather, the entering wedge of the argument for nullification (and
ultimately secession) rested on Jefferson’s description of the Constitution and
those of other sovereign states’ theorists as a compact in terms that were
crucially different from how Madison understood that compact.
Jefferson’s
understanding of the constitutional compact identified “co-states” as the
parties to the Constitution, with each state “an integral party.” Jefferson’s description of a compact between
independent sovereign states invited action by an individual state.
Madison’s version of the Constitution as a compact, on the other hand, precluded
action by an individual state. For Madison, the parties to the constitutional
compact were the collective We the People of all of the states “in their
highest sovereign capacity”—clearly not individual states or even the people of
individual states.
For
Madison, the Constitution’s foundation precluded the theory of nullification.
Although the Constitution rested on the same sovereign source as state
constitutions, there was one crucial difference. Since the Constitution was “a
compact among the States in their highest sovereign capacity, and constituting
the people thereof one people for certain purposes” (217-218), it could not be
altered or annulled by individual states—as the people of a given state were
free to do with respect to their own state constitution. Ratification entailed
the sovereign people of each state acting in concert with the sovereign
people of other ratifying states. The same concerted action of its creation
governed its alteration. Changing the Constitution required collective action
by the parties—the people in the states, and not in a single state.
Interposition
did not rest on the sovereignty of a state or the sovereignty of the people of
a state. Rather, it emerged from a constitutional arrangement that distributed
power between two levels of government and therefore invited an oversight of
the federal-state divided sovereignty the Constitution established. In
contrast, nullification and secession—to claim constitutional legitimacy—relied
on the existence of a compact composed of independent sovereign
states—something that Madison rejected and argued had never formed the
sovereign foundation of the Constitution.
Madison’s
concept of what he called “a middle ground” (197) of the founding of the
Constitution rejected the tendency of his contemporaries to describe the
establishment of the Constitution in binary terms: either the product of one
national people or the creation of sovereign states. Despite the fact that
Americans at the time (and later observers) were captivated by the dual
positions of nationalists versus sovereign states rights’ theorists, careful
scholars of American history have long recognized that the debates over the
foundation of the Constitution have involved more than those two positions. [1]
Importantly,
sounding the alarm interposition had always been deemed appropriate whenever a
perception of overreaching by the federal government was noted. It had never
rested on the establishment of egregious overreaching or as Madison phrased it
in Virginia’s Third Resolution, “a deliberate,
palpable, and dangerous” action of the national government. Thus, Levinson’s
suggestion that there might always be a temptation to slide from interposition
to nullification downplays the more routine exercises of interposition.
Madison understood the resolution of the tensions
of federalism and the dynamics of striking a balance between the national and
state levels of government to be a protracted and prolonged process of
adjustment among many constitutional actors—and not simply the Supreme Court.
He hoped that “jarring opinions between the national and State tribunals will
be narrowed by successive decisions, sanctioned by the public concurrence” and
eventually reduced to “a regular course of practice.” (186)
Is
There Contemporary Relevance for Interposition?
The
starting point for considering the core dilemma of American federalism is
Madison’s concept of the Constitution creating a “compound republic” which
established a governmental structure that was “partly federal” and “partly
national.” (1,15) Despite the contested history of the phrase “states’ rights,”
there was an uncontestable core of relevance to the idea in 1787 as well as
today. If the Constitution did not create a completely consolidated national
government (which ardent Federalists at the time of ratification vehemently
denied), states’ rights ultimately served as a check on unlimited national
power that could extinguish state authority.
Jessica
Bulman-Pozen
insightfully explores the question I posed at the end of the book: how should
we “think about and practice federalism today” in the light of the long and
partisan history of interposition practiced by state legislatures. She points
to the effects of relentless gerrymandering which have frequently rendered
state legislatures far less representative of the majority of the citizens of
their state and she identifies state actors other than state legislatures that
might lay a more valid claim as the voice of the people: governors, attorneys
general, judges and even the people themselves in states having the mechanism
of the initiative.
The
history of state legislatures serving as one of the sentinels of the balance of
federalism reflects a broader vision of constitutional discourse in which
multiple parties and groups—and not the Supreme Court alone—played a role in
ensuring that the federal government stayed within its proper bounds. Article
VI of the Constitution calls for all federal and state officials and not
merely state legislators, to support the Constitution “by oath or affirmation.”
Throughout American history, many state legislators took that oath to mean not
only obeying constitutional acts of the national government, but identifying
and resisting unconstitutional acts of that government. The obligation and duty
of political engagement and action clearly extended well beyond state
legislators and included the other state actors identified by Bulman-Pozen and
seems perfectly consistent with the history of interposition.
David
Schwartz faults the book for not reframing American federalism. To my mind,
that task belongs in the public arena. The job of a legal historian (and
historians generally) is to take the past on its own terms and offer the best
analysis of events without a presentist agenda or perspective. What my study of
America federalism suggests is that there is no “solution” to the balance of
federalism, there is only a constant and necessary dialogue about the line
between national and state power.
There
never was—nor will be—federal-state equipoise; each generation is left to
struggle with establishing a suitable tension between the two levels of
government. And as messy as this might be, it may be a positive thing that a
bright line and a strict division has not been established. As Heather Gerken
suggests, we need to reconceptualize federalism as a new “operating system” in
which federal and state governments “govern shoulder-to-shoulder in a tight
regulatory space.” (300) Arguably, that
tension provides some freedom and “play in the joints” to facilitate
accommodations that will inevitably shift over time as we continue to re-create
our federalism.
[1]
See for example, Richard E. Ellis, The Union at Risk: Jacksonian Democracy,
States Rights, and the Nullification Crisis (1987), 11; Michael Les
Benedict, “Abraham Lincoln and Federalism,” 10 Journal of the Abraham
Lincoln Association (1988), 1 at 4-19; Drew R. McCoy, The Last of the
Fathers: James Madison and the Republican Legacy (1989), 134-135; H.
Jefferson Powell, “The Principles of ’98: An Essay in Historical Retrieval,” 80
Virginia Law Review (1994), 689 at 717 (“For Madison, the Constitution
was the creature of collective action by the states as a body”); Andrew C.
Lenner, “John Taylor and the Origins of American Federalism,” 17 Journal of
the Early Republic (1997), 399 at 422.
Christian
G. Fritz is Emeritus Professor of Law at the University of New Mexico School of
Law. You can reach him by e-mail at fritz@law.unm.edu