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