Wednesday, April 24, 2013 – Essay #48 – Letter To Edward Everett by James Madison – Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia

In this 1830 response to Edward Everett of Massachusetts James Madison maintains that a state does not possess the authority to strike down as unconstitutional an act of the federal government.  If you find the essay long-winded, you are correct in this assessment.  It is long-winded because James Madison was a hypocrite on the issue of nullification, supporting the notion when it suited him, and rejecting it when it did not. You may learn from this episode an important lesson about human nature.  The greatest of founding fathers does not always make a great secretary of state, a great president, or a great elder-statesman.  James Madison (and Thomas Jefferson) were no exceptions to this insight.

Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any law which that state has deemed to be unconstitutional.  The concept of nullification appears nowhere in the United States Constitution, though its relevance may just conceivably be deduced from the wording of the Tenth Amendment.  The theory of nullification has never been legally upheld, but rather has been rejected by the Supreme Court of the United States.  Nevertheless, until the War of Northern Aggression ended in the defeat of the South, nullification was the most important theoretical alternative to the idea that the U.S. Supreme Court is the final arbiter of constitutional controversies.  So James Madison, in 1830, was not responding to a trivial question.

Supporters of nullification argued that the states’ power of nullification is inherent in the nature of the federal system. Prior to ratifying the Constitution, the states essentially were sovereign nations.  The Constitution is a contract or compact among the states whereby the states delegated certain powers to the federal government, while reserving all other powers to themselves.  As parties to the compact, the states retained the inherent right to judge compliance with the compact.  According to this theory, if a state determines that the federal government has exceeded its delegated powers, that state may declare the federal law in question to be unconstitutional.  This sovereign power, it was argued, was one of the powers reserved to the states by the Tenth Amendment.

The federal courts — predictably of course — have systematically rejected this view.  The courts have rejected the compact theory, finding that the Constitution was established directly by the people, as stated in the preamble: ‘We the people of the United States….’  Under the Supremacy Clause of Article VI, the Constitution and federal laws adopted in pursuance thereof are the ‘supreme law of the land…any thing in the constitution of laws of any state to the contrary nothwithstanding.’  Federal laws are valid and are supreme, as long as those laws are consistent with the Constitution. The federal courts and not the states are empowered to determine whether federal laws are constitutional, with the Supreme Court having the final authority.

The concept of nullification of federal law by the states was not discussed at the Constitutional Convention, so the records of that Convention provide no support for the theory of nullification.  With the single exception of Virginia, the records of the state ratifying conventions do not include any assertion that the states would have the power to nullify federal laws.  During the Virginia Convention, Edmund Randolph and George Nicholas stated that ratification by Virginia would constitute its agreement to a contract and that Virginia would have a right to judge the constitutional limits of federal power. But these remarks do not appear to have been central to the ratification decision.

The Federalist Papers nowhere assert that the states have the power to nullify federal law.  On the contrary, Federalist Nos. 33, 39, 44, and 78 explicitly state that federal laws are supreme over state laws and that only the federal courts have the power to pronounce federal legislation void as contrary to the Constitution.

So by strict construction and by inferred intent, nullification should play no role in the United States.  Yet, as early as 1798, the two leading Founding Fathers of the United States, Thomas Jefferson and James Madison – seemingly paranoid about the presumed over-reach by the Federalists under the presidency of John Adams — were writing out resolutions that asserted the theory of nullification in the most unambiguous and forthright terms.

The issue that incited nullification attempts was the Alien and Sedition Acts passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution and during the undeclared naval war with France later known as the Quasi-War.  The bills were signed into law by President John Adams.  The unrest in France was sweeping into the United States, encouraged in some instances by Republicans, some of whom were calling for secession.  The unrest was viewed by Federalists as emanating from French and French-sympathizing immigrants.  Was Thomas Jefferson sympathetic to the unrest?  Well Jefferson certainly hated John Adams as though he were Satan himself!

The legislation was meant to guard against a real threat of anarchy.  The Republicans denounced them, though hypocritically, Thomas Jefferson as President and James Madison as Secretary of State deployed the Acts against the Federalists after winning the 1800 elections.  Opposition to the laws became focused in the highly controversial 1798 Virginia and Kentucky Resolutions authored respectively by James Madison and Thomas Jefferson.

As would so often occur during periods of war, U.S. presidents and their Congressional allies undoubtedly over-reached in their attempt to suppress subversion and dissent.  Again, as so often would occur in the future, the federal courts conspired to judge unconstitutional laws constitutional.  Unquestionably, a number of U.S. citizens were unconstitutionally deprived of their rights under the Constitution.  Twenty-five people were arrested, eleven were tried, and ten were convicted.  The Alien and Sedition Acts were never appealed to the Supreme Court, whose judicial review was not established until Marbury v. Madison in 1803.

In any event, Jefferson and Madison secretly drafted the 1798 Kentucky and Virginia Resolutions denouncing the federal legislation and calling for nullification, though the state legislatures of both states rejected these resolutions.  Jefferson went one step further in the case of Kentucky and drafted a threat for Kentucky to secede from the Union.  Had this action become public knowledge at the time, Jefferson may well have been impeached for treason.  After all, he was calling for outright rebellion, if needed, against a federal government of which he was serving as Vice-President.  George Washington was so appalled by the Virginia and Kentucky Resolutions that he advised Patrick Henry that ‘if systematically and pertinaciously pursued’ they would ‘dissolve the union or produce coercion’.

The influence of Jefferson’s doctrine of states rights reverberated right up to the Civil War and beyond. A future president, James Garfield, at the close of the Civil War, stated that Jefferson’s Kentucky Resolution ‘contained the germ of nullification and secession, and we are today reaping the fruits’.

So now you will understand why the older, more mature, James Madison, by then unchained from the doctrines of Thomas Jefferson, wrote that reversionary letter to Edward Everett in 1830.  After, all, no one was more responsible than he for the Constitution of the United States.

Read James Madison’s Letter to Edward Everett here: http://www.constitutingamerica.org/blog/?p=4107

Charles K. Rowley is Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia (www.thelockeinstitute.org).  He has written extensively in the fields of classical liberalism, economics, public choice, law-and-economics and political history. He published a daily weblog at www.charlesrowley.com

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3 Responses to “Wednesday, April 24, 2013 – Essay #48 – Letter To Edward Everett by James Madison – Guest Essayist: Charles K. Rowley, Duncan Black Professor Emeritus of Economics at George Mason University and General Director of The Locke Institute in Fairfax, Virginia”

  1. Ron says:

    And people today like to say that the people of our country have never been more divided and contentious. Politics is no different today than 200 years ago; and, perhaps, it may even be kinder and gentler.

  2. Ralph Howarth says:

    Madison gets to the heart of what is Nullification distinctly from two similar but different forms of nullification:

    1) Nullifying a federal law within the confines of the state via a “Null and Void” resolution.
    2) Nullifying a federal law by a state upon the expanse of the union.

    The 2nd notion of Nullification take nullification to another level where the state claims it has the power to declare a law unconstitutional upon the federal government thereby upon the whole United States. And the answer to this kind of nullification takes on two separate forms: One where it requires 3/4ths of the states to ratify an amendment to object to the states nullification thereby allowing a 1/4th minority of states to agree with the nullifying state; and Two where it requires 3/4ths the states to agree with the nullifying state thereby allowing a mere 1/4ths the states to disagree with the nullifying state. As it supposedly can be estimated, Madison argues that one of the problems of nullifying a portion of the constitution is that the constitution was ratified as a whole AND if one portion was somehow excluded or modified, the end result may have terminated the whole constitution from ratification if one component as critical to the balancing effects of powers were disallowed. This reasoning seems fair but only to a point when we introduced the Doctrine of Enumerated Powers.

    The Doctrine of Enumerated Powers that is the basis of the federal government is that certain power are granted to the federal government as surrendered by the states who retain all remaining powers so granted. When it comes to answering the question whether or not 3/4ths the states ever ratified any measure that granted the federal government plenary control over commerce among the states (the present power of “regulation” meaning regulating the taxation and evaluation of commerce among the states as a co-equal power with the states rather than an absolute police power of control), regulation or control of intrastate commerce, regulation or control of manufactures, regulation or control of labor, or even the regulation or control of education let alone health care, and the answer is a flat NO. When the federal government has to give a long-winded justification for how and why a certain federal law is “Necessary and Proper” for the execution of an enumerated power when constitutional conventions and delegations, ratifying conventions, and ratification debates explicitly denied federal access to those powers, then it is a federal overreach and not nullifying explicitly part of the constitution, but a federal law claimed to be constitutional by the federal government. States are part of the system of checks and balances within the federal government and act as a check against the federal seat such as when the Wisconsin Supreme Court nullified the Fugitive Slave Act of 1850 as unconstitutional. If this were not so then there is nothing to stop federal justification to anything.

  3. yguy says:

    The federal courts and not the states are empowered to determine whether federal laws are constitutional, with the Supreme Court having the final authority.

    Can this be taken to mean that a President, for example, is bound by his oath of office to abide by a SC ruling even if said ruling is brazenly unconstitutional?

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