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Subject Area: Political Theory
Topic: The American Revolution and Constitution

1836 - TO — —. mad. mss. - James Madison, The Writings, vol. 9 (1819-1836) [1910]

Edition used:

The Writings of James Madison, comprising his Public Papers and his Private Correspondence, including his numerous letters and documents now for the first time printed, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1900). Vol. 9.

Part of: The Writings of James Madison, 9 vols.

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NOTES ON NULLIFICATION.1mad. mss.

If we pass from the 3d to the 7th Resolution, which, tho’ it repeats and re-enforces the 3d and which is always skipped over by the nullifying commentators, the fallacy of their claim will at once be seen. The resolution is in the following words. [“That the good people of the commonwealth having ever felt and continuing to feel the most sincere affection to their brethren of the other states, the truest anxiety for establishing and perpetuating the union of all, and the most scrupulous fidelity to that Constitution which is the pledge of mutual friendship and the instrument of mutual happiness, the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional, and that the necessary and proper measures will be taken by each for co-operating with this state in maintaining unimpaired the authorities, rights, and liberties reserved in the states respectively or to the people.”1 ] Here it distinctly appears, as in the 3d reoln that the course contemplated by the Legislature, “for maintaining the authorities, rights, & liberties reserved to the States respectively,” was not a solitary or separate interposition, but a co-operation in the means necessary & proper for the purpose.

But let us turn to the “Report,” which explained and vindicated the Resolutions; and observe the light in which it placed first the third and then the 7th1

It has been said that the right of interposition asserted for the states by the proceedings of Virginia could not be meant a right for them in their collective character of parties to and creators of the Constitution, because that was a right by none denied. But as a simple truth or truism, its assertion might not be out of place when applied as in the resolution, especially in an avowed recurrence to fundamental principles, as in duty called for by the occasion. What is a portion of the Declaration of Independence but a series of simple and undeniable truths or truisms? what but the same composed a great part of the Declarations of Rights prefixed to the state constitutions? It appears, however, from the report itself, which explains the resolutions, that the last resort claimed for the Supreme Court of the United States, in the case of the alien and sedition laws, was understood to require a recurrence to the ulterior resort in the authority from which that of the court was derived. “But, (continues the Report) it is objected1 that the judicial authority is to be regarded as the sole expositor of the Constn in the last resort.”

Well might Virginia declare, as her Legislature did by a resolution of 1833 “that the resolutions of 98-99, gave no support to the nullifying doctrine of South Carolina. And well may the friends of Mr. J. disclaim any sanction to it or to any constitutional right of nullification from his opinions. His memory is fortunately rescued from such imputations, by the very Document procured from his files and so triumphantly appealed to by the nullifying partisans of every description. In this Document, the remedial right of nullification is expressly called a natural right, and, consequently, not a right derived from the Constitution, but from abuses or usurpations, releasing the parties to it from their obligation.1

The conduct of Pena. and the opinions of Judge McKean & Tilgman have been particularly dwelt on by the nullifiers. But the final acquiescence of the state in the authy of the Fedl Judiciary transfers their authy to the other scale, and it is believed that the opinions of the two judges, have been superseded by those of their brethren, which have been since & at the present time are, opposed to them.1

Attempts have been made to shew that the resolutions of Virginia contemplated a forcible resistance to the alien & sedt laws and as evidence of it, the laws relating to the armory, and a Habs corpus for the protection of members of her Legislature, have been brought into view. It happens however, as has been ascertained by the recorded dates that the first of these laws was enacted prior to the al. & sed. laws. As to the last, it appears that it was a general law, providing for other emergencies as well as federal arrests and its applicability never tested by any occurrence under the al. & sedn. laws. The law did not necessarily preclude an acquiescence in the supervising decision of the Fedl Judy shd that not sustain the Habs. corps which it might be calculated would be sustained. And all must agree, that cases might arise, of such violations of the security & privileges of representatives of the people, as would justify the states in a resort to the natural law of self-preservation. The extent of the privileges of the fedl & State representatives of the people, agst criminal charges by the 2 authorities reciprocally, involves delicate questions which it may be better to leave for those who are to decide on them, than unnecessarily to discuss them in advance. The moderate views of Va. on the critical occasion of the al. & sed. laws, are illustrated by the terms of the 7th Resol. with an eye to which the 3d Resol. ought always to be expounded, by the unanimous erasure of the terms “null void” &c., from the 7th art. as it stood; and by the condemnation & imprisonment of Callender under the law, without the slightest opposition on the part of the state. So far was the State from countenancing the nullifying doctrine, that the occasion was viewed as a proper one for exemplifying its devotion to public order, and acquiescence in laws which it deemed unconstitutional, whilst those laws were not constitutionally repealed. The language of the Govr in a letter to a friend, will best attest the principles & feelings which dictated the course pursued on the occasion.1

It appears that the means contemplated by the Legislature for attaining the object, were measures recognised & designated by the Constitution itself.1

That a sovereignty should have even been denied to the States in their united character, may well excite wonder, when it is recollected that the Constn which now unites them, was announced by the convn which formed it, as dividing sovereignty between the Union & the States; [see letter of the Presdt of the Convention (W.) to the old Congs1 ] that it was presented under that view, by contemporary expositions recommendg it to the ratifying authorities [see Federt and other proofs]; that it is proved to have been so understood by the language which has been applied to it constantly & notoriously; that this has been the doctrine & language, until a very late date, even by those who now take the lead in making a denial of it the basis of the novel notion of nullification. [See the Report to the Legisl. of S. Carola. in 1828.] So familiar is sovereignty in the U. S. to the thoughts, views & opinions even of its polemic adversaries, that Mr. Rowan, in his elaborate speech in support of the indivisibility of sovereignty, relapsed before the conclusion of his argument into the idea that sovereignty was partly in the Union, partly in the States. [See his speech in the Richmond Enquirer of the —.] Other champions of the Rights of the States among them Mr. J-n might be appealed to, as bearing testimony to the sovereignty of the U. S. If Burr had been convicted of acts defined to be treason, wch it is allowed can be committed only agst a sovern. authy who wd. then have pleaded the want of sovy in the U. S. Quere. if there be no sovy. in the U. S. whether the crime denominated treason might not be committed, without falling within the jurisdiction of the States, and consequently, with impunity?

Whether the centripetal or centrifugal tendency be greatest, is a problem which experience is to decide; but it depends not on the mode of the grant, but the extent and effect of the powers granted. The only distinctive circumstance is in the effect of a dissolution of the system on the resultum of the parties, which, in the case of a system formed by the people, as that of the United States was, would replace the states in the character of separate communities, whereas a system founded by the people, as one community, would, on its dissolution, throw the people into a state of nature.1

In conclusion, those who deny the possibility of a political system, with a divided sovereignty like that of the U. S., must chuse between a government purely consolidated, & an association of Govts. purely federal. All republics of the former character, ancient or modern, have been found ineffectual for order and justice within, and for security without. They have been either a prey to internal convulsions or to foreign invasions. In like manner, all confederacies, ancient or modern, have been either dissolved by the inadequacy of their cohesion, or, as in the modern examples, continue to be monuments of the frailties of such forms. Instructed by these monitory lessons, and by the failure of an experiment of their own (an experiment wch, while it proved the frailty of mere federalism, proved also the frailties of republicanism without the control of a Federal organization),1 the U. S. have adopted a modification of political power, which aims at such a distribution of it as might avoid as well the evils of consolidation as the defects of federation, and obtain the advantages of both. Thus far, throughout a period of nearly half a century, the new and compound system has been successful beyond any of the forms of Govt, ancient or modern, with which it may be compared; having as yet discovered no defects which do not admit remedies compatible with its vital principles and characteristic features. It becomes all therefore who are friends of a Govt based on free principles to reflect, that by denying the possibility of a system partly federal and partly consolidated, and who would convert ours into one either wholly federal or wholly consolidated, in neither of which forms have individual rights, public order, and external safety, been all duly maintained, they aim a deadly blow at the last hope of true liberty on the face of the Earth Its enlightened votaries must perceive the necessity of such a modification of power as will not only divide it between the whole & the parts, but provide for occurring questions as well between the whole & the parts as between the parts themselves. A political system which does not contain an effective provision for a peaceable decision of all controversies arising within itself, would be a Govt in name only. Such a provision is obviously essential; and it is equally obvious that it cannot be either peaceable or effective by making every part an authoritative umpire. The final appeal in such cases must be to the authority of the whole, not to that of the parts separately and independently. This was the view taken of the subject, whilst the Constitution was under the consideration of the people. [See Federalist No. 39.] It was this view of it which dictated the clause declaring that the Constitution & laws of the U. S. should be the supreme law of the Land, anything in the constn or laws of any of the States to the contrary notwithstanding. [See Art. VI.] It was the same view which specially prohibited certain powers and acts to the States, among them any laws violating the obligation of contracts, and which dictated the appellate provision in the Judicial act passed by the first Congress under the Constitution. [See Art. I.] And it may be confidently foretold, that notwithstanding the clouds which a patriotic jealousy or other causes have at times thrown over the subject, it is the view which will be permanently taken of it, with a surprise hereafter, that any other should ever have been contended for.

TO — —.mad. mss.

March, 1836.

Dr Sir,—

The letter of Mr. Leigh to the Genl. Assembly presents some interesting views of its important subject & furnishes an excuse for reflections not inapposite to the present juncture.

The precise obligation imposed on a representative, by the instructions of his constituents, still divides the opinions, of distinguished statesmen. This is the case in Great Britain, where such topics have been most discussed. It is also now the case, more or less, and was so, at the first Congress under the present Constitution, as appears from the Register of Debates, imperfectly as they were reported.

It being agreed by all, that whether an instruction be obeyed or disobeyed, the act of the Representative is equally valid & operative, the question is a moral one, between the Representative, and his Constituents. With him, if satisfied, that the instruction expresses the will of his constituents, it must be to decide whether he will conform to an instruction opposed to his judgment or will incur their displeasure by disobeying it and with them to decide in what mode they will manifest their displeasure. In a case necessarily appealing to the conscience of the Representative its paramount dictates must of course be his guide.

It is well known that the equality of the States in the Federal Senate was a compromise between the larger, & the smaller states, the former claiming a proportional representation in both branches of the Legislature, as due to their superior population; the latter, an equality in both, as a safeguard to the reserved sovereignty of the States, an object which obtained the concurrence of members from the larger States. But it is equally true tho’ but little adverted to as an instance of miscalculating speculation that, as soon as the smaller States, had secured more than a proportional share in the proposed Government, they became favorable to augmentations of its powers; & that under the administration of the Govt., they have generally, in contests between it, & the State governments, leaned to the former. Whether the direct effect of instructions which could make the senators dependent on the pleasure of their Constituents, or the indirect effect inferred from such a tenure by Mr. Leigh, would be most favourable, to the General Government, or the state Governments, is a question which not being tested by practice, is left to individual opinions. My anticipations I confess do not accord with that in the letter.

Nothing is more certain than that the tenure of the Senate, was meant as an obstacle to the instability, which not only history, but the experience of our Country, had shewn to be the besetting infirmity of popular Govts. Innovations therefore impairing the stability afforded by that tenure, without some compensating remodification of the powers of the Government, must affect the balance, contemplated by the Constitution.

My prolonged life has made me a witness of the alternate popularity, & unpopularity of each of the great branches of the Federal Government. I have witnessed, also, the vicissitudes, in the apparent tendencies in the Federal & State Governments to encroach each on the authorities of the other, without being able to infer with certainty, what would be the final operation of the causes as heretofore existing; whilst it is far more difficult, to calculate, the mingled & checkered influences, on the future from an expanding territorial Domain; from the multiplication of the parties to the Union, from the great & growing power of not a few of them, from the absence of external danger; from combinations of States in some quarters, and collisions in others, and from questions, incident to a refusal of unsuccessful parties to abide by the issue of controversies judicially decided. To these uncertainties, may be added, the effects of a dense population, & the multiplication, and the varying relations of the classes composing it. I am far however from desponding of the great political experiment in the hands of the American people. Much has already been gained in its favour, by the continued prosperity accompanying it through a period of so many years. Much may be expected from the progress and diffusion of political science in dissipating errors, opposed to the sound principles which harmonize different interests; from the Geographical, commercial, & social ligaments, strengthened as they are by mechanical improvements, giving so much advantage to time over space; & above all, by the obvious & inevitable consequences of the wreck of an ark, bearing as we have flattered ourselves the happiness of our country & the hope of the world. Nor is it unworthy of consideration, that the 4 great religious Sects, running through all the States, will oppose an event placing parts of each under separate Governments.

It cannot be denied that there are in the aspect our country presents, Phenomena of an ill omen, but it wd. seem that they proceed from a coincidence of causes, some transitory, others fortuitous, rarely if ever likely to recur, that of the causes more durable some can be greatly mitigated if not removed by the Legislative authority, and such as may require and be worthy the “intersit” of a higher power, can be provided for whenever, if ever, the public mind may be calm and cool enough for that resort.

lf1356-09_figure_001

FACSIMILE OF JAMES MADISON’S LAST MESSAGE TO HIS COUNTRYMEN IN MRS. MADISON’S WRITING

lf1356-09_figure_002

[1 ]These notes were written almost entirely in Madison’s own hand and revised by him with the aid of Mrs. Madison and his brother-in-law, John C. Payne.

[1 ]Madison left the quotation to be filled in.

[1 ]Ante, Vol. VI., p. 341.

[1 ]There is a direct proof that the authority of the Supreme Court of the U. S. was understood by the Legislature of Virginia to have been an asserted bar to an interposition by the states agst the al & sed laws.—Madison’s Note.

[1 ]No example of the inconsistency of party zeal can be greater than is seen in the value allowed to Mr. Jefferson’s authority by the nullifying party; while they disregard his repeated assertions of the Federal authority, even under the articles of confederation, to stop the commerce of a refractory State, while they abhor his opinions & propositions on the subject of slavery & overlook his declaration, that in a republick, it is a vital principle that the minority must yield to the majority—they seize on an expression of Mr. Jefferson that nullification is the rightful remedy, as the Shiboleth of their party, & almost a sanctification of their cause. But in addition to their inconsistency, their zeal is guilty of the subterfuge of droping a part of the language of Mr. Jefferson, which shews his meaning to be entirely at variance with the nullifying construction. His words in the document appealed to as the infallible test of his opinions are: [ . . . “but, when powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact (casus non fæderis,) to nullify” etc.]

. . . . . . .

Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constitutionally resist a law of the Union while remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionally annul the law everywhere.

If the right of nullification meant by him had not been thus guarded agst. a perversion of it, let him be his own interpreter in his letter to Mr. Giles in December 1826 in which he makes the rightful remedy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it. The authority of Mr. Jefferson, therefore, belongs not, but is directly opposed to, the nullifying party who have so unwarrantably availed themselves of it—Madison’s Note.

[1 ]The precedents for the nullification doctrine are given in The Genuine Book of Nullification, Charleston, 1831.

[1 ]Madison’s note says: Extract of a letter from Monroe to Madison, dated Albemarle, May 15, 1800: “Besides, I think there is cause to suspect the sedition law will be carried into effect in this state at the approaching federal court, and I ought to be there [Richmond] to aid in preventing trouble. A camp is formed of about 400 men at Warwick, four miles below Richmond, and no motive for it assigned except to proceed to Harper’s Ferry, to sow cabbage-seed. But the gardening season is passing, and this camp remains. I think it possible an idea may be entertained of opposition, and by means whereof the fair prospect of the republican party may be overcast. But in this they are deceived, as certain characters in Richmond and some neighbouring counties are already warned of their danger, so that an attempt to excite a hotwater insurrection will fail.”

Extract from another letter from J. Monroe to J. M., dated Richmond, June 4, 1800: “The conduct of the people on this occasion was exemplary, and does them the highest honour. They seemed aware the crisis demanded of them a proof of their respect for law and order, and resolved to show they were equal to it. I am satisfied a different conduct was expected from them, for everything that could was done to provoke it. It only remains that this business be closed on the part of the people, as it has been so far acted; that the judge, after finishing his career, go off in peace, without experiencing the slightest insult from any one; and that this will be the case I have no doubt.”

[1 ]The following note is marked by Madison as intended to be inserted at this point. Most of it appears, however, embodied in other parts of the essay:

“The predominant feelings & views of Virginia, in her Resolutions of 98 & the comment on them in the Report of 99 may be seen in the instructions to her members in Congs. passed at the same session with the Report. These instructions, instead of squinting at any such doctrine as that of nullification, are limited to efforts, on the part of the members 1. to procure a reduction of the army 2. to prevent or stop the premature augmentation of the navy, 3. to oppose the principle lately advanced, that the common law of England is in force under the Govt. of the U. S., excepting the particular parts &c [as excepted in the Report] 4th Repeal of the alien & seda acts.

“Again as a final answr to the question asked with a triumphant tone, whether the solemnity of the proceedings of Virga. on that occasion, cd. be called for or wasted, in mere declarations and protests, rights which no one desired; and whether the nullifying right alone must not therefore have been the object of them? it may be observed that sufficient answer both to the fact and the inference had been already given in the appeal to language held in the answers of the several states, denying the right of a state to protest agst. the Constitutionality of acts of Congs. and to the solemnity of the concluding paragraph of the Report renewing the protest agst. the alien & sedition acts The fact that the right of a state Legisl to protest, was positively denied is authenticated by a large and respectable portion of the House of Delegates in their votes as recorded in the Journal of the House.

“A motion offered at the date of the Report affirms ‘that protests, made by the Legislature of this or of any other State, agts. particular acts of Congs. as unconstitutional, accompanied with invitations to other States to join in such protests are improper & unauthorized assumptions of power, not permitted or intended to be permitted to the State Legislatures. And inasmuch as correspondent sentiments with the present have been expressed by those of our Sister States who have acted on the Resolutions aforesaid [of 1798] Resolved therefore that the present Genl. Assembly convinced of the impropriety of the Resolutions of the last assembly, deem it inexpedient farther to act on the said Resolutions.’

“On this Resolution, the votes according to the yeas & nays were 57 of the former and 98 of the latter.

“Here then within the House of Delegates itself, more than ⅓ of the whole number denied & protested agst. the right of protest, which the nullifying critics have alleged was denied by nobody.”—Mad. MSS.

[1 ]Documentary History of the Constitution, ii., 1.

[1 ]See letter of J. M. to D[aniel] W[ebster] on file [March 15, 1833].—Madison’s Note.

The letter is as follows

“Dear Sir—

I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes ‘nullification’ and must hasten the abandonment of ‘Secession.’ But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U. S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.

“It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several States, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers, or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.

“The Constitution of the U. S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution, it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.

“It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.

“The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U. S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the Condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.”—Mad. MSS.

[1 ]The known existence of this controul has a silent influence, which is not sufficiently adverted to in our political discussions, and which has doubtless prevented collisions, in cases which might otherwise have threatened the fabric of the Union. Another preventive resource is in the fact noted by Montesquieu, that if one member of a union become diseased, it is cured by the examples and the frowns of the others, before the contagion can spread.—Madison’s Note.