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.
[1] Thus, for example, Jonathan
Gienapp’s essay, which seeks to locate the Virginia Resolution and Report in
Madison’s evolving constitutional thought, is an excellent study in
intellectual biography that should not be mistaken for a causal analysis of the
relationship between those texts and later nullification theory. See Jonathan
Gienapp, How to Maintain a Constitution: The Virginia and Kentucky Resolutions
and James Madison’s Struggle with the Problem of Constitutional Maintenance,
in Nullification and Secession in Modern
Constitutional Thought 53-90 (Sanford Levinson ed. 2016).
[2] Mary
Sarah Bilder, Madison’s Hand:
Revising the Constitutional Convention 141 (2015).
[3] Letter from James Madison to
Thomas Jefferson (Oct. 24, 1787), in 5
The Writings of James Madison 19
(Gaillard Hunt ed., 1906).
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.
[1] Thus, for example, Jonathan
Gienapp’s essay, which seeks to locate the Virginia Resolution and Report in
Madison’s evolving constitutional thought, is an excellent study in
intellectual biography that should not be mistaken for a causal analysis of the
relationship between those texts and later nullification theory. See Jonathan
Gienapp, How to Maintain a Constitution: The Virginia and Kentucky Resolutions
and James Madison’s Struggle with the Problem of Constitutional Maintenance,
in Nullification and Secession in Modern
Constitutional Thought 53-90 (Sanford Levinson ed. 2016).
[2] Mary
Sarah Bilder, Madison’s Hand:
Revising the Constitutional Convention 141 (2015).
[3] Letter from James Madison to
Thomas Jefferson (Oct. 24, 1787), in 5
The Writings of James Madison 19
(Gaillard Hunt ed., 1906).