States of Denial

For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).
 
Alison L. LaCroix
 
Even the arch-nationalist Alexander Hamilton believed that the states could sometimes claim coequal authority with the federal government. In Federalist No. 32, Hamilton described a zone of overlap between the powers of the federal government and those of the states. That zone of concurrent authority was exemplified, for Hamilton, by the taxing power, which could lawfully be exercised by both levels of government—even over the same articles of commerce. “The necessity of a concurrent jurisdiction in certain cases results from the division of the sovereign power,” he wrote, “and the rule that all authorities, of which the States are not explicitly divested in favor of the Union, remain with them in full vigor, is not a theoretical consequence of that division, but is clearly admitted by the whole tenor of the instrument which contains the articles of the proposed Constitution.”
 
In other words, Hamilton thought that the Constitution recognized distinct and durable domains of state regulatory authority in which a state would not be required simply to cede to the federal government. In such areas, Hamilton urged mutual “prudence” and “reciprocal forbearances.” But neither “inexpedien[ce]” nor “a mere possibility of inconvenience in the exercise of powers” was by itself sufficient to bar the state from exercising what was allocated to it by the Constitution’s “division of the sovereign power.” For Hamilton, concurrence was an unavoidable weather condition in certain zones of the constitutional climate. Prudence, reciprocal forbearance, and sometimes outright conflict—not tidy line-drawing—would be the watchwords in these latitudes.
 
Christian Fritz’s splendid Monitoring American Federalism plunges readers into the ecosystem that Hamilton sketched. But Fritz moves from the thirty-thousand-foot musings of the Federalist to the terrestrial give-and-take, institutional wrangling, and rhetoric claiming that characterized more than two centuries’ worth of what Fritz terms “state legislative resistance” to limitations. These limitations are most salient for Fritz not when they trim states’ substantive authority, but rather when they strip the states of their power to “monitor federalism” through “interposition.”  Fritz defines interposition as “a constitutional tool” that permitted state legislatures to “sound the alarm about overreaching” by the federal government, whether by the president, Congress, or the federal courts.

One of Fritz’s most important aims is explicitly revisionist. Interposition, he argues, has been “overlooked and misunderstood.”  Since the earliest days of the Republic, it has been a means by which state actors have exerted control over the federal-state relationship. Tainted by its association with John C. Calhoun’s brew of nullification and white supremacy, rendered additionally noxious by the secession of the seven Confederate states, and revived in a newly lethal form in southern states’ “massive resistance” to both Brown v. Board of Education and the broader civil rights movement of the mid-twentieth century, interposition has come to stand for a veneer of states’-rights constitutional posturing that does not even bother to conceal its ugly and racist motivations.
 
Fritz challenges this account by taxonomizing interposition and tracing its shifts and alterations as well as its continuities. Among Fritz’s many contributions is his concept of “sounding the alarm interposition,” the origins of which he traces to a handful of Federalist essays by Hamilton and James Madison and, in a more fleshed-out version, to Madison’s draft Virginia Resolutions of 1798. In the third of these resolutions, Madison laid out how the states ought to respond when the federal government overreached and thereby upset what the constitutional “compact.” In such a situation, Madison wrote, “the states alone who are parties thereto have the right, and are in duty bound, to interpose for arresting the pro[gress] of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.”
 
Crucially for Fritz, the canonical, Madisonian view of interposition operated within the constitutional system. It did not compass the nullifying of federal law, nor did it rely on a natural-law right of revolution. Nor did it empower a single state to act alone.  Instead, sounding the alarm interposition worked through normal channels internal to the Constitution: state lawmakers and governors could give instructions to their congressional delegations; they could communicate with other states; and they could advocate for a constitutional amendment. Viewed this way, state resistance to federal power in the early nineteenth century was not a series of crises, but rather a deliberate and functional system of conflict management.
 
Indeed, one important way in which Fritz’s account of interposition differs from the standard view of state resistance is that Fritz’s view offers examples of successful interposition, even if contemporaries did not use that term. One such instance is Chapter Three’s discussion of state sovereign immunity in the wake of the Supreme Court’s 1793 decision in Chisholm v. Georgia. Fritz argues that the Court’s ruling that the state of Georgia could be sued in federal court by a citizen of South Carolina “generated widespread state interposition to resist the Court’s seemingly broad interpretation of a constitutional clause and ultimately resulted in the Eleventh Amendment.” The abrogation of Chisholm by constitutional amendment was, on Fritz’s view, an exercise of state resistance in both procedural terms (the states ratified the Eleventh Amendment) and substantive terms (the amendment enshrined sovereign immunity in the Constitution).
 
But is the passage of the Eleventh Amendment best understood as a moment of interposition? As Maeva Marcus and Natalie Wexler have demonstrated, the conventional “shock of surprise” narrative, in which the people of the states swiftly scotched the overreaching Court by passing a constitutional amendment, does not fully capture the complex history of political, institutional, and regional struggle that surrounded the issue of state sovereign immunity in the 1790s. As Marcus and Wexler point out, the legislatures of four states that had ratified the amendment failed for three years to notify Congress that they had done so. Moreover, “[d]uring the three years between the actual and official ratifications of the Eleventh Amendment, the Supreme Court continued to entertain suits against states,” Marcus and Wexler note. Was this in fact interposition, or was it something else—a fight over jurisdiction, or over the nature of sovereignty in a republic, as opposed to a monarchy?
 
The fact that Fritz’s definition of interposition is capacious enough to include successes is one of the book’s great strengths. After all, a theory of state resistance that applies only when a state is on the losing side of federal policy can too easily be set aside as opportunism or cheap talk.
 
Yet if the Eleventh Amendment was a manifestation of interposition, could not all amendments be seen as instances of interposition, insofar as they require the states to act through ratification (and, prior to the passage of the Seventeenth Amendment in 1913, through the state legislatures’ selection of their U.S. senators, who as members of Congress might propose amendments)? Such a definition seems to go too far.
 
The final chapter of the book focuses on twentieth-century invocations of interposition, which Fritz characterizes as “mythologized” versions that derive from nullification theory rather than from true Madisonian interposition. In the wake of Brown, southern state legislators, governors, and attorneys general invoked the “compact” language of Madison’s Virginia Resolution, issuing resolutions and opinions that they styled as appeals “of last resort against a deliberate and palpable encroachment transgressing the Constitution.” These efforts culminated in the Southern Manifesto of March 1956, which was signed by nearly 100 southern members of Congress.
 
In the 1990s, Fritz argues, a “new version of interposition” emerged—not from the states this time, but from the Supreme Court, which deployed a newly robust vision of federalism, and a muscular reading of the Tenth Amendment, in the service of protecting state sovereignty and limiting the power of the federal government. Again, though, one might question whether the “new federalism” cases that followed National League of Cities v. Usery (1976) – in particular, the anticommandeering cases such as New York v. United States (1992) and Printz v. United States (1997) – represent Madisonian state interposition in its 1798 form, or whether they instead arose out of related but distinct issues regarding the role of the Court in terms of the separation of powers. As Justin Driver has argued, the Southern Manifesto was important not only for its full-throated endorsement of the white supremacist version of states’ rights, but also because it demonstrated the degree to which judicial supremacy was widely accepted even among those hostile to the Court’s decision in Brown. Characterizing judicial federalism as another branch of interposition, albeit from the mythologized side of the tree, risks flattening these key distinctions.
 
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Anxiety over constitutional continuity was widespread in the early nineteenth century. As Fritz describes, the elderly Madison was moved to take up his pen in 1830 to set the record straight in response to the debate in the Senate between Daniel Webster and Robert Y. Hayne about the nature of the Union. Neither senator, Madison insisted, had properly understood his arguments in the Virginia Resolution. Madison spent many hours at his desk in 1830, desperately attempting to correct the next generation’s misinterpretation of his views—whether on the nature of the Union or on the controversy over Congress’s power to fund internal improvements.
 
In the final chapter, after sketching what he characterizes as the many reworkings of interposition in the late twentieth and early twenty-first centuries, Fritz asks “whether and to what extent the history of interposition should influence how we think about and practice federalism today.” With its textured redefinition and contextualization of Madisonian interposition, the book demonstrates that many supposed continuities were in fact disjunctive, while some apparent discontinuities had more in common than we think.
 
Fritz’s prodigiously researched book engages in the vital work of teasing apart meaning from myth, interpretation from invocation. The project is more imperative than ever, given the current urgency for constitutional history to distinguish among meaning, interpretation, continuity, and change.
 
Alison L. LaCroix is Robert Newton Reid Professor of Law and an Associate Member of the Department of History at the University of Chicago.  You can reach her by e-mail at lacroix@uchicago.edu.