Rescuing Interposition

Guest Blogger

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

David S. Schwartz 

Christian Fritz’s impressive new book, Monitoring American Federalism, examines the antebellum history of “interposition” by state legislatures to resist purported federal intrusions on their sovereign prerogatives. Professor Fritz offers an illuminating narrative history that recounts numerous episodes of state legislative resistance of various sorts. Some of these have been largely overlooked by constitutional scholars; I was fascinated to learn, for example, that the right of states to question the constitutionality of federal laws through merely declaratory resolutions was sharply contested in the early republic. Many other episodes are well known, but take on a subtly and significantly different cast when viewed, as Professor Fritz views them, as part of a pattern of a particular form of state resistance. His narrative of the legislative debates leading to the Virginia and Kentucky Resolutions is invaluable. Also noteworthy is Professor Fritz’s suggestion that a protocol of state legislative interposition was outlined, in inchoate form at least, in The Federalist. All these make Professor Fritz’s book a worthy contribution to the literature of the constitutional history and development of U.S. ideas of federalism, by adding to our historical knowledge base about federalism.

I found greater value in Monitoring American Federalism as a historical narrative than as an argument that reframes our thinking about federalism. The book seems to comprise two distinct, but closely-related and largely overlapping claims: one defending James Madison, and the other defending state “interposition.” The more compact thesis argues that a longstanding concept of “interposition,” expressed in its most developed form by Madison in the Virginia Resolutions of 1798 and the Virginia Report of 1800, was distorted and misunderstood by the “nullifiers” of the late 1820s and early 1830s. The supposed distortion of interposition was expounded by John C. Calhoun and other proponents of the “South Carolina doctrine” that undergirded the Nullification Crisis of 1832-33. This argument by Professor Fritz would, by itself, be sufficiently important to sustain a book of this length, and the compact thesis (subtle pun there) is successful insofar as it offers a salient and closely argued claim that must be taken seriously. Although Professor Fritz’s argument will likely be well-received by Madison scholars, most of whom are Madison admirers and some of whom are Madison apologists, I’m unpersuaded for reasons I will explain.

The other claim functions somewhat as a large container, with the more compact Madison defense rattling around inside. This is the “history of state legislative resistance” promised in the book’s subtitle, and while the narrative is quite rich, its overarching argument is less of a thesis than an enveloping normative haze. Professor Fritz seems to be suggesting that what he defines as “interposition” is on balance a good thing, and that its continuing practice somehow demonstrates, or perhaps ensures, that “the national government cannot do whatever it wants and ride roughshod over the states.” (p. 306)

The key to the book, therefore, is Professor Fritz’s definition of interposition. This, he says, consists entirely (and merely) of state legislatures “sounding the alarm” about unconstitutional federal laws and taking a limited set of steps stopping short of nullification or other tangible resistance measures: issuing declaratory resolutions, corresponding with other state legislatures, rallying public opinion, lobbying Congress, and—if necessary—pursuing constitutional amendment. With this definition before us, I’ll consider the two claims in turn.

Defending Madison

As is well known, Madison’s Virginia Resolution, along with the Kentucky Resolution ghost-written by Thomas Jefferson, became known as “the principles of ‘98” and were expressly relied upon by nullifiers and secessionists, and even by states’-rights advocates long after the Civil War. Madison has thereby been accused of giving a theoretical boost and intellectual credibility to the doctrines of nullification and secession. Late in his life, Madison vehemently denied that his Virginia Resolution of 1798 and his subsequent explication of it in the Virginia Report of 1800 gave aid and comfort to nullification. Monitoring American Federalism is an important addition to the academic literature defending Madison from this charge, a literature to which Professor Fritz has previously contributed.

John C. Calhoun, among other nullifiers, expressly invoked Madison and the Virginia Resolution in his “South Carolina Exposition” of 1828, and later his “Fort Hill Address” of 1831. Professor Fritz insists that “in doing so [Calhoun and the nullifiers] distorted Madison’s views.” (p. 196) Putting the argument in this way can lead to a logical slippage which is commonplace among Madison scholars seeking to distinguish the Virginia Resolution from the South Carolina Doctrine of nullification. “Madison’s views” are beside the point, if one is referring to his personal beliefs. What matters is what Madison actually wrote in the two public documents, the Virginia Resolution and Virginia Report, and not what he wrote before, or in private, or how he later insisted he wanted to be understood.[1] Commendably, Professor Fritz places the focus on the texts, where it belongs.

To debate this question with transparency and help readers reach their own judgment, I think it important to present the crucial third of Madison’s eight Virginia Resolutions in its entirety:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states are parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in 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.

Standing alone, this resolution seems to make three points. First, the Constitution is a compact of the states, rather than the creation of “We the people” of the United States. This claim would become the linchpin of “compact theory,” which undergirded strict construction, nullification, and secession theory. It was famously rejected in McCulloch v. Maryland. Second, states have the right and duty to identify “deliberate, palpable and dangerous exercise[s]” of power that exceed the federal government’s delegated powers. And third, states have a right to take some vaguely defined action “for arresting the progress of the evil” and maintaining proper constitutional rights within their borders.

How is this different from nullification? In his two major statements of nullification, Calhoun argued that states were the true parties to the constitutional “compact,” and that each state had the ultimate right to interpret the Constitution within its own borders. Thus far, Calhoun appears to be restating Madison’s Virginia Resolution. Calhoun goes on to claim that a state can treat an unconstitutional law within its own borders as null and void, and that its constitutional decision could be overruled only by a constitutional amendment (i.e., the agreement of three fourths of the states). One can read this element of Calhoun’s theory of nullification as doing little more than operationalizing Madison’s vague formula, “to interpose, for arresting the progress of” an unconstitutional law, with a specific procedure.

Professor Fritz contends that this proto-nullification reading of Madison’s Third Resolution distorts it. According to Professor Fritz, Madison differentiated between “the ordinary right of state legislatures to sound the alarm for perceived constitutional overreaching,” and “an ultimate interposition retained by the parties to the constitutional compact as a matter of theoretical principle.” (p. 197) Professor Fritz supports this nuanced reading of the Virginia Resolutions with an exegetical tour de force relying heavily on Madison’s own explanations in the Virginia Report of 1800—which Madison, its author, called “the justifying Report.” (p. 118)

But Professor Fritz’s apologia is unconvincing. “Interpose for purposes of arresting” a federal law deemed unconstitutional is highly suggestive of more active resistance than Professor Fritz’s definition of “interposition.” Madison had a chance to explain the limits of his conception of interposition in the Report, but he failed or refused to do that. The most one can point to is that in explaining the Seventh (not the Third) Resolution, Madison lists a set of measures comprised by Professor Fritz’s definition of “sounding the alarm” interposition. Such measures, Madison said, “are strictly within the limits of the Constitution.” But nowhere in Madison’s long-winded, vague, and irresolute explanations in the Virginia Report does he expressly rule out nullification.

Professor Fritz instead relies on Madison’s reference to “states” rather than “state legislatures” in the Third Resolution. In the Report, Madison explained that he used “states” there to refer to “the people composing those political societies, in their highest sovereign capacity.” To this, Professor Fritz adds his own interpretive twist: by saying that “the states are parties” to the constitutional “compact,” Madison was referring to the states collectively, not individually. (p. 121) Professor Fritz concludes that these two theoretical moves somehow draw a hard line of separation between Madison and the nullifiers.

But do they? The theory of nullification can be agnostic as to the precise institution that does the nullifying: it could be state legislatures that nullify a federal law, but it could also be the state’s “people … in their highest sovereign capacity”—presumably in state conventions. The same could be said about secession. The idea that the states are parties collectively, but not individually, is an interesting interpretive spin on the Third Resolution. If true, it would suggest that states couldn’t act against unconstitutional laws alone, as South Carolina would later claim. But Professor Fritz’s interpretation finds no direct textual support in the Report. Moreover, it’s quite frankly incoherent, unless the Third Resolution is meant to refer to the Article V amendment procedure—which would make that resolution an incredibly elliptical way to refer to a relatively straightforward concept.

It would have been a simple matter for Madison, in the Third Resolution or elsewhere, to explain that “interpose” was limited to “sounding the alarm” and pursuing constitutional amendments, and that it ruled out nullification. Not only did Madison fail to do that. According to Professor Fritz, in the one place Madison actually used the word “interpose”—the Third Resolution—he used it incorrectly, to refer to measures (vaguely defined ones, to be sure) that go beyond “sounding the alarm.” (p. 120) All this puts Professor Fritz’s defense of Madison in the awkward position of asserting that Madison suffered from an “occasional inability to express himself clearly” and that he “failed to explain clearly what he meant” when “dr[awing] subtle but crucial constitutional distinctions.” (p. 127) As against the charge of abetting nullification, this is somewhat akin to an insanity defense—Madison was incapable, in his writing at least, of distinguishing right from wrong. This is not the most plausible explanation of the actions of the man considered by many historians as our greatest political theorist.

In fact, there is another, more plausible explanation for Madison’s “convoluted words” (p. 127) in writing and later explaining the Third Resolution. However sophisticated he was as a constitutional thinker, and however charmingly bookish, Madison was a man of action engaged in the political arena. As Professor Fritz shows us, there were significant members of the Virginia Assembly who believed that states had the right to nullify federal laws. (pp. 106, 108) Nullification was thus on the table in the discussions about the Virginia Resolutions and Report. This not only raised the stakes of Madison’s failure to clearly rule out nullification—and his willingness to associate with a document suggestive of it. It also explains why he did not rule it out. Madison was adept, as Mary Bilder has remarked, at crafting compromise language to smooth over differences.[2] Here, Madison was likely to have been purposefully obscure in his writing, in order to have matters both ways. That is, while his personal preference was to limit “interposition” to the practice of state legislatures “sounding the alarm,” he wrote the Virginia Resolutions and the Virginia Report in a capacious, if confusing way, to accommodate both his own views and those of would-be nullifiers whose support he wanted.

In the end, then, I find Professor Fritz’s defense of Madison unpersuasive. Madison’s Virginia Resolutions and Virginia Report embraced compact theory, betraying the constitutionalism of “We the people” that he had endorsed at the Constitutional Convention. In his Convention post mortem letter to Jefferson in October 1787, Madison wrote that “It was generally agreed that the objects of the Union could not be secured by any system founded on the principle of a confederation of sovereign States.”[3] Madison was a leading figure in that “general agreement.” In the Virginia Resolutions and Report, he contradicted this position. The suggestion that these writings did not advance compact theory because Madison viewed the states collectively but not individually as parties rests on a distinction that is too subtle, or too incoherent, to stand up. We can accept the claim that Madison did not personally endorse nullification while at the same time acknowledging that, in writing these two crucial documents, he failed to draw a clear line between interposition and nullification. The South Carolina Doctrine of nullification is a plausible and logical extension of the Virginia Resolution and Report. 

Defending Interposition

Professor Fritz’s skillful presentation of his compendious research certainly earns him the right to offer some theoretical payoff, and I was mildly disappointed by the absence of one. It would have been quite natural for Professor Fritz to try to show how his historical narrative might illuminate some existing debate over federalism. For example, the “political safeguards of federalism” debate has not, to my knowledge, given much thought to the role of state legislative declarations of unconstitutionality. But works of history do not require a strong analytical thesis, and Monitoring American Federalism is extremely valuable as a narrative history of episodes of state resistance.

Professor Fritz does seem to want to rescue the milder version of “interposition” from the stronger, and discreditable form it took in the Nullification and secession crises. This defense is suggested by the word “Monitoring” in the title, together with recurring hints and suggestions that state “sounding the alarm interposition” is an important ongoing contributor to an ideal federal-state equilibrium. That strikes me as an empirical balance-sheet sort of question; but Professor Fritz doesn’t embark that kind of argument, seeming content to leave the benefits of interposition to implication. Given several of the less salutary episodes of state resistance chronicled by Professor Fritz, it is far from clear that a robust tradition of interposition is desirable, nor does Professor Fritz discuss whether interposition as he defines it carries any advantages over other “non-lethal” (to the Union) forms of state resistance, such as litigation, foot-dragging, bargaining, and the like.

The lack of an overarching thesis in Monitoring American Federalism invites readers to draw their own lesson. The one I draw is that even sophisticated constitutional scholars find it extremely difficult to escape the idea that there exists some ideal federal-state “balance” that is a substantive good-in-itself. To be clear, this is not a swipe at Professor Fritz or his book: the greatest constitutional minds throughout our history have pursued this holy grail, from Madison and Hamilton to the present day. Given the likelihood that the Articles of Confederation were on the brink of failure, we can say that excessive localism is a “bad” balance, but only insofar as we measure good and bad by a substantive preference for a unified continental republic stretching across the North American land mass, instead of a clutch of smaller Europe-sized republics, possibly warring with one another and intriguing with European powers. Beyond that, the ideal balance for a large nation-state is chimerical. Moreover, the idea of federalism as a substantive good is misguided, somewhat analogous in its vacuity to the large-state/small-state divide that most Framers mistook for a substantive interest-divergence and thereby saddled us with our extremely problematic Senate. Federalism is only as good as its capacity to promote the good of the people—a point understood by Gouverneur Morris and James Wilson in framing a preamble to the Constitution that totally omitted “state sovereignty” or “federalism” from the Constitution’s grand purposes. Federalism is trans-substantive. Sometimes federal policies are better than those insisted on by the states; sometimes state policies are better. Professor Fritz’s historical narrative throws no new light on the probably unanswerable question of what precise “balance” of federal versus state power produces the most good to the American people.

Moreover, few if any substantive policies actually pit “the federal government” against “the states.” The states are a varied group with divergent and often conflicting interests. Today, when states sign on to constitutional challenges to a federal law by means of attorney-general briefs, the number of states typically tops out at somewhere between 20 and 30. I’m not aware of a single case in which “the states” unanimously or near-unanimously opposed a particular federal law. Federalism, to be sure, is closely connected to arguably Manichean disputes other than “state versus federal.” But this is because federalism makes states an important arena for the national opposition party, not because the federal government and the states have consistently conflicting interests. The sort of abstract federal-versus-state thinking that dominates the discussion of American federalism is an artifact of states’-rights rhetoric which, from the Philadelphia Convention to now, has rarely been more than a thin “neutral principles” veneer laid over substantive claims represented by the interests of particular clusters of states: southern slave-owners or segregationists, New England merchants, or whomever.

In the end, as a narrative history of state legislative resistance to federal power, Monitoring American Federalism gives us much food for thought. But it stops short of an effort to reframe our thinking about federalism.

David S. Schwartz is Frederick W. and Vi Miller Professor of Law, and Vilas Distinguished Achievement Professor, University of Wisconsin Law School. You can reach him by e-mail at dsschwartz@wisc.edu.