Related Links in the Library:
Source: An essay from George W. Carey, In Defense of
the Constitution, revised
and expanded edition, (Indianapolis: Liberty Fund, 1995).
James Madison and the Principle of Federalism
Any penetrating treatment of state-national relations must, soon or late, deal with the teaching of James Madison because, far more than any other individual, he is responsible for our modern conception of federalism. From soon after the new government commenced operations under the Constitution until his death in 1836 he was the foremost spokesman for the proposition that our system occupied a “middle ground” between a consolidated or unitary form—one in which the general government possessed complete control over the component units—and the confederal form, wherein the constituent units retained their sovereignty. This middle-ground conception of our union is what American government textbooks commonly use in defining federalism when setting forth the fundamental principles upon which our system rests.
Many, particularly conservatives, have come to share Madison’s views concerning federalism and its significance so that today it is widely regarded as one of the pillars of our constitutional order and freedoms. It is also widely regarded as one of our major contributions to the art of government. Yet, as the following section makes clear, when we look carefully at Madison’s political career and his writings, it is difficult to see precisely what this contribution amounts to, or, for that matter, how it serves to bolster and protect our constitutional liberties. Indeed, if we look at the Supreme Court’s record in this respect, a coherent articulation of the middle-ground position might well be impossible because, contrary to what Madison intimates, theory and practice do collide. Put otherwise—and this for reasons set forth below—there are not, and, it would seem, never can be rules, guides, injunctions or the like that can satisfactorily serve to perpetuate or maintain the division of powers called for by Madison’s middle-ground (federal) position.
But if this is so, we may profitably ask, what is at stake between the revisionists and the traditionalists over the issue of federalism? The answer is somewhat involved and requires that we proceed a step at a time. First, we should note that from the outset of our constitutional experience controversy over state-national relations was inevitable. Even before the Constitutional Convention we can see a manifest “tension” in our official documents concerning the nature of the political relationship of the states to one another. This is evident, for example, in the Declaration of Independence. Its opening paragraph asserts that “one people” are dissolving the “political bands that have united them with another,” a clause that suggests at least a feeling of unity or “oneness” among the colonies. That there were centripetal forces in operation at this time is clearly borne out by the convocation of the Continental Congresses and the subsequent ratification of the Articles of Confederation. But we also see evidences of centrifugal tendencies. The final paragraph of the Declaration is evidence of this, calling as it does for “Free and Independent States” with “full Power to levy War, conclude Peace, contract Alliances, establish Commerce, and to do all other Acts and Things which Independent States may of right do.” And, although the Constitution was a decisive move toward greater unity, it certainly did not provide a definitive resolution of these tensions.
What seems clear is that the early revisionists, with the exception of Herbert Croly, associated the centralization of authority that resulted from the ratification of the Constitution with a departure from the democratic principles they had associated with the political decentralization under the Articles. The heroes for these revisionists were the early Republicans led by Jefferson who played upon and emphasized the centrifugal aspects of the tradition. While the record of these Republicans shows that the disputes over state-national authority were, for the most part, over issues far removed from any constitutional principle, they did serve to establish positions to which future politicians could repair to suit their purposes. With the coming of the Civil War, we do find, as I have noted, a constitutional crisis arising over the nature of the foundations of the union, with the South taking a position that would render the union little more than a confederacy—a position that, as the following essay shows, Madison strenuously opposed despite his general antipathy towards centralization of authority.
Modern revisionists, following the lead of Croly, have abandoned the Jeffersonian position. Though they pay due homage to what they understand to be Jeffersonian ideals, they find Hamilton’s views on the necessity of a strong central government more suited to the achievement of these ideals. Yet, on this matter, the revisionists cannot rightly be called revisionists; that is, as the following selection shows, an extremely strong case can be made that Hamilton’s view of the union was closer to what the Framers intended than Jefferson’s or that advanced by Madison after the system was set in motion. In any event, it is generally conceded that Hamilton had much the better case concerning the scope of national powers. Moreover, his position corresponded far more closely to the teachings of The Federalist than that of Jefferson or of the later Madison.
For this reason, I find the position of many traditionalists in contemporary debates concerning federalism somewhat exasperating. Simply put, many traditionalists in their battle against the new constitutional morality simply assume, for instance, that Jefferson and eventually Madison articulated the Framers’ views concerning the nature of the union and the proper scope of national authority relative to the states. And insofar as this puts the traditionalists on the side of “states’ rights” —which it has had a pronounced tendency to do—the proponents of the new morality can claim to have the better case not only constitutionally but morally as well. More concretely, to take but one example, the civil rights issues of modern times have served to put the traditionalists on the defensive on both constitutional and moral grounds.
Yet, the basic issue between the traditionalists and the revisionists, as I see it, does not come down to the question of whether the national government has overextended its authority vis-à-vis the states according to some preconceived notions of how substantive powers ought to be divided between the two jurisdictions, but, rather, how or by what means the disputes over their relative domains are settled. Both logic and common sense tell us that controversies between the states and national government have to be settled by some agency of the national government. But—and this brings us back to reflect on the central element of the new constitutional morality—this agency need not be the Supreme Court, as the revisionists would have it. Rather, the constitutional morality set forth in The Federalist strongly suggests that the “common constituents” acting through Congress ought to have the last say concerning the proper division of authority between the national and state governments. In other words, consonant with the republican character of the system, Publius’s teachings are that the people are the proper judge of the proper distribution of authority between the two layers of government. Such seems to have been the morality even at the time the Fourteenth Amendment was adopted: Section 5 of that amendment grants to Congress—significantly, not the courts—the authority to enforce the broad provisions of Section 1 (e.g., “due process of law,” “equal protection of the laws”) which can be used to severely limit state authority.
This should be taken to mean that, on the whole, I think Congress, particularly since the New Deal period, has acted responsibly. Its expansive use of the commerce power to intrude upon the states’ police powers is, to say the least, imprudent. The entire system of federal grants-in-aid which give it leverage over the states leads to an inefficient and unresponsive government. Nevertheless, unlike many, if not most, judicial interventions into the realms traditionally reserved to the states, Congress’s actions can be repealed or revised through the ordinary political processes.
The revisionists cannot abide by a political, as opposed to a judicial, resolution of issues surrounding state-national relations because of other aspects of federalism that are often overlooked today. Federalism, conceived not in terms of a division of sovereignty but as a principle that recognizes the states as equal constituent parts of the national government, has played and will continue to play an important role in our system. Part of the recognition—the “formal” part—is fused into our constitutional framework and processes (e.g., the equality of state representation in the Senate, the election of the President). But other and far more important aspects of this federalism so conceived are “informal,” the product of an evolutionary growth. The most significant of these is the development of our party system with roots firmly planted at the state and local levels. Indeed, it is through the political parties that state and local interests find expression in the national councils, a fact that helps to insure that, in the resolution of state-national conflicts through the political processes, state and local interests will have to be reckoned with.
In this sense, federalism contributes to the “messiness” or “untidiness” of the constitutional system that the proponents of the new morality deplore. That is why they defend activist courts that operate through the Fourteenth Amendment to impose their will upon the states: the courts, that is, are perceived as rising above the parochialism that characterizes congressional deliberations and that often delays or forecloses needed “reforms.” Beyond this, of course, the proponents of the new morality would sleep easier with disciplined, programmatic, and centrally controlled political parties that would be able to resist and overcome the centrifugal forces that arise from the mere existence of politically viable states.
JAMES MADISON AND THE PRINCIPLE OF FEDERALISM
Despite the prodigious efforts of biographers, analysts, and commentators over the decades, James Madison still remains an enigma. While he is widely hailed as the “father” of the Philadelphia Constitution, we find that he was, almost from the outset of its operations, schizophrenic about the nature of the political union it fashioned. To be more exact, his views or positions relating to the proper relationship between the state and national governments and their respective spheres of authority—that is, his posture towards issues that are subsumed today under the rubric “federalism” —shifted markedly during the course of his political career. Clearly, this state of affairs casts doubts on the reliability of his views regarding the nature and character of the federal union. But, more importantly, it eventually leads us to inquire about the status of the federal principle itself. Could it be, in other words, that federalism, rather than being the product of a principled evolution from constitutional moorings, is really anchored only in political expediency wherein the relationship between the national and state governments at any given moment depends upon the mere will of the dominant political force?
Madison’s views and positions on federalism are intriguing largely because they do invite us to ask this and related questions. And the reasons are not hard to discover. In the first place, as we shall see, Madison’s conception of federalism changed significantly soon after the new Constitution began to operate. Moreover, even after this initial change, he was not entirely consistent in his outlook or in his answers to very important questions inherent in his conception of federalism. And, beyond this, we find that at various stages of his career he had to contend with tensions between theory and practice. These circumstances naturally give rise to serious questions concerning his teachings: after making accommodation to political reality, what principles or elements of federalism remain intact? Or, to phrase this concern somewhat differently, are there rules, tests, standards, or guidelines derivable from his theory of federalism that remained relatively “pure” or constant over time? What aspects of his theory or teachings might serve us today in resolving conflicts between state and national jurisdictions or defining the proper spheres of each? What, in short, do Madison’s thoughts, trials, and tribulations teach us about the federal principle?
Surveying Madison’s thoughts on federalism with an eye toward answering these and like questions is not an easy matter, and it is best that we set forth our procedure at the outset. First, we must deal with Madison the “nationalist,” that is, with Madison during what we will call his “first” or “nationalist” stage, which runs from almost the beginning of his political career to his famous break with Hamilton over the incorporation of a national bank in the very first session of Congress. After this break, we confront the so-called “strict constructionist” Madison who held to a narrow view of national authority. This represents his “second” or, as we put it at times, “shifting” phase, for, as we shall see, he wavered in his rules concerning constitutional construction. We will initially be concerned with Madison’s nationalism and the reasons for his abandonment of this position.
While we can divide Madison’s views of state-national relations into two relatively distinct phases without much difficulty, his theoretical positions and views are not so readily amenable to such delineation. Writing as “Publius” in The Federalist, Madison can be read to stake out two positions: the nationalist, and one which, as we see in retrospect, is thoroughly compatible with his later and more restrictive views concerning national authority vis-à-vis the states. As we will indicate, his Federalist position is probably best understood as nationalistic because it does conform on virtually all salient points with Hamilton’s view of the proposed Union. Nevertheless, as we will also make clear, there is no gainsaying the “other” position that forms the theoretical framework for understanding the perplexing problems that he confronted throughout his second phase. Showing this, as well as why it is so difficult to abstract from his writing and actions much by way of systematic or coherent views of federalism, is the focus of our concern after the initial sections.
Madison: The Nationalist
What seems clear is that experiences under the Articles had convinced Madison of the need for a stronger and more energetic national government. While this view was, no doubt, commonly held, it is safe to say that Madison’s opinions on what form the new government should take were not so widely shared. In his famous letter to Washington on the eve of the Philadelphia Convention, he set forth his candid views concerning the nature of state-national relations he would like to see obtain under a new constitution. Conceding that the “consolidation of the whole into one simple republic would be” both “inexpedient” and “unattainable,” he adopted a “middle ground” position that would “support the due supremacy of the national authority” while not excluding “the local authorities wherever they can be subordinately useful.” His vision called for a national government “armed with positive and complete authority in all cases that require uniformity” and, beyond this, “a negative in all cases whatsoever on the acts of the States.” This negative he deemed “absolutely necessary” not only with regard to state actions that might contravene or impinge upon national authority, but also as a “control on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals.” In sum, Madison envisioned a negative national power that could reach down into the distinctly internal affairs of the states.
These views flowed logically from what he perceived to be the major weakness of the Articles. Aside from noting the mutability and multiplicity of laws at the state level, he found that their “injustice betrays a defect still more alarming” — a defect that he believed could be supplied only by a stronger and more extensive government. Anticipating the argument he was to develop in Federalist 10, he maintained that the difficulties and injustices prevalent within the states, “contrary to prevailing Theory,” were not to be found “in proportion” to the “extent, but to the narrowness of their limits.” At the same time, Madison also faulted the government under the Articles for its inability to act to advance the common interests of the states. To this point he wrote: “How much has the national dignity, interest, and revenue suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization and literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, which may at present be defeated by the perverseness of particular States whose concurrence is necessary” —ends that are particularly noteworthy in light of the views he was subsequently to express in his second phase.
Madison’s strong nationalism manifested itself in the Philadelphia Convention. For instance, he was chief architect of the Virginia Plan, which, as one student has correctly remarked, “envisioned a unitary national government effectively freed from and dominant over the states.” By providing for the popular election of the lower house, which in turn would select the membership of the upper chamber, and by placing the responsibility for electing an executive and choosing judges with both these bodies, the plan established the foundations of a national government virtually independent of the states. Beyond this, the negative over state legislation for which Madison longed was granted to the national legislature, which was empowered “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” To be sure, the plan called for a “Council of revision” composed of “the Executive and a convenient number of the National Judiciary” which could overturn this legislative veto unless extra-majorities in both chambers were to reaffirm the original negative. Nevertheless, final jurisdiction over the proper scope of state authority was, in effect, lodged in the hands of the national government. And, what is more, consonant with its unitary character, the plan vested the national legislature with the authority “to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual legislation.”
Perhaps more telling than these structural arrangements and formal procedures were Madison’s arguments against the states’ rights position. At one point, to give, as he put it, “full force” to the arguments against a national government such as that envisioned in the Virginia Plan, he asks his fellow delegates to speculate on the consequences of giving an “indefinite power ... to the General Legislature” thereby reducing the “States ... to corporations dependent on the General Legislature.” Reasoning in a manner consonant with the views he had expressed earlier to Washington, he saw no reason why under this arrangement the legislature would deprive the states of any power so long as its continued exercise by the states was either desired by the people or “beneficial.” He points to the examples of the states, particularly Connecticut, where “all the Townships are incorporated, and have a certain limited jurisdiction” and asks rhetorically: “have the Representatives or the people of the Townships in the Legislature ever endeavored to despoil the Townships of any part of their local authority?” He concludes that this has not been the case insofar as “this local authority is convenient to the people.” And he sees no reason why this same relationship or condition should not obtain between the states and a national government vested with indefinite powers: “As far as its [national government] operation would be practicable it could not in this view be improper; as far as it would be impracticable, the conveniency of the General Government itself would concur with that of the people in the maintenance of subordinate Governments.” Beyond this, he did not believe that “the people would ... be less free, as members of one great Republic, than as members of thirteen small ones.” Thus, even “supposing a tendency in the General Government to absorb the State Governments no fatal consequences could result.” However, state encroachments on national authority, he felt, would have fatal consequences; a judgment he believed was borne out by “the experiment we are now making to prevent the calamity.”
As we know, of course, Madison did not get all he wanted at the Philadelphia Convention. Writing to Jefferson shortly after the Convention, he expresses his concerns about the final product, concerns that again reflect his nationalist point of view. He considers the lack of an effective negative over the states, such as that provided for in the Virginia Plan, to be one of the principal defects of the proposed Constitution. “Without such a check in the whole over the parts,” he maintains, “our system involves the evil of imperia in imperio.” He is particularly concerned that the states might encroach upon the national government principally because of their critically important constitutive functions: “The Senate will represent the States in their political capacity; the other House will represent the people of the States in their individual capacities .... The President also derives his appointment from the States, and is periodically accountable to them.” “This dependence of the General on the local authorities,” he writes, “seems effectually to guard the latter against any dangerous encroachment of the former; whilst the latter, within their respective limits, will be continually sensible of the abridgement of their power, and be stimulated by ambition to resume the surrendered portion of it.” For all of this, however, he does not rule out the possibility that an “esprit de corps will ... exist in the National Government” that might serve to resist such dangerous encroachments by the states. This, at least, seems to be his hope.
The lack of an effective negative also bothered him, as we might expect, because of his concern “to secure individuals against encroachments on their rights.” In this connection, he observes, a “serious evil” arises from the “mutability” of the state laws while their “injustices” have become “so frequent and so flagrant as to alarm the most steadfast friends of Republicanism.” Such laws, he argues, have done more to prepare the “Public mind for a general reform, than those which accrued to our national character and interest from the inadequacy of the Confederation to its immediate objects.” “The restraints against paper emissions, and violations of contract” he describes as “short of the mark”: “Injustice may be effected by such an infinitude of legislative expedients that where the disposition exists it can only be controlled by some provision which reaches all cases whatsoever. The partial provision made, supposes the disposition which will evade it.” Having noted this, he then proceeds to a lengthy discussion of why it is that “private rights will be more secure under the Guardianship of the General Government than under the State Government,” a discussion that anticipates the arguments of his famous tenth Federalist.
Madison as Publius
For obvious reasons Madison had to abandon certain of his arguments and positions in his contributions to The Federalist simply because the movement toward a stronger union had entered a new phase; outwardly, at least, arguments over the form of this union had been settled at Philadelphia and now the task—at least as Madison seemed to perceive it—was to present a united front to marshal support for its adoption. While, as we have remarked, Madison’s contributions to The Federalist can be looked upon as providing the grounds for his restrictive views on national authority (a matter we will turn to later), his nationalism clearly shows through in at least three significant ways. First, he sets forth in Federalist 10 and in the latter part of Federalist 51 the virtues of the proposed extended or large republic: “In the extended republic of the United States, and among the great variety of interests, parties, and sects which it embraces, a coalition of the majority of the whole society could seldom take place on any other principles than those of justice and the general good” (269). Extensiveness, he notes, also requires “the delegation of the government ... to a small number of citizens elected by the rest” (10:46). And, from his perspective, the chances of obtaining virtuous and knowledgeable representatives were greater in the large than the small republic. Thus, the multiplicity and diversity of interests combined with representation by “fit characters” provided what he believed to be a “republican remedy for the diseases most incident to republican government,” namely, a cure for the ravages of “majority factions” (10:48). In this regard, he summarily dismisses the possibility that minority factions would ever gain control of the constitutional apparatus. Such a faction, he writes, “may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution” (10:45).
On this score, Madison seemed to believe that there was an inverse relationship between extent of territory and susceptibility to the evils of faction. He held out no prospect that “pure” democracies, wherein the citizens “assemble and administer the government in person,” could avoid the evils of faction. The nature of such democracies would “admit of no cure for the mischiefs of faction” since “impulse” and “opportunity” could so easily coincide among majorities: “A common passion or interest will, in almost every case, be felt by a majority of the whole; a communication and concert result from the form of government itself; and there is nothing to check the inducements to sacrifice the weaker party or an obnoxious individual” (10:46). But small republics were, in his view, susceptible to the very same dangers. For example, Madison held out little prospect for just, stable, and republican government in Rhode Island outside the confines of union: “the insecurity of rights under the popular form of government within such narrow limits,” he writes, “would be displayed by such reiterated oppressions of factious majorities that some power altogether independent of the people would soon be called for by the voice of the very factions whose misrule had proved the necessity of it” (51:269).
Second, he reiterates and expands upon his concern that the states will encroach upon the national government. He observes, once again, that the experiences of confederacies both “ancient and modern” conclusively show the proclivity of their members “to despoil the general government of its authorities, with a very ineffectual capacity in the latter to defend itself against the encroachments” (45: 236). And, though he concedes that the proposed constitutional system is quite dissimilar to these confederacies, he does not believe their experiences should be “wholly disregarded.” He firmly held to the proposition that the states could more than fend for themselves in any conflict with the national government. On this point, he writes: “The State governments will have the advantage of the Federal government, whether we compare them in respect to the immediate dependence of the one on the other; to the weight of personal influence which each side will possess; to the powers respectively vested in them; to the predilection and probable support of the people; to the disposition and faculty of resisting and frustrating the measures of each other” (45:237).
And third, there can be no question that Madison viewed the Constitution as providing for a national government with full and sufficient powers to discharge the responsibilities placed upon it. While we will deal with this aspect of Madison’s thought in another context, a good indication of the extent of his nationalism is the absence of any substantial differences between him and Hamilton—his principal collaborator and acknowledged nationalist—concerning the scope of national power. Indeed, what is somewhat astonishing is the similarity of their positions on key issues. In the first place, they both agree that the national government must possess the means necessary for the ends that are entrusted to its care. Hamilton writes as follows to this effect: “the means ought to be proportioned to the end; the persons from whose agency the attainment of any end is expected ought to possess the means by which it is to be attained.” This proposition, he contends, rests upon “axioms as simple as they are universal” (31:15). Madison similarly maintains: “No axiom is more clearly established in law, or in reason, than that wherever the end is required, the means are authorized; wherever a general power to do a thing is given, every particular power necessary for doing it is included” (44:232).
Moreover, principally because the national government was charged with the responsibility of providing for the national defense, both men were opposed to placing any a priori limitations on the powers of the national government. Writing with regard to the national powers to provide for the national defense (e.g., “raise armies,” “build and equip fleets”) Hamilton puts the matter this way: “These powers ought to exist without limitation, because it is impossible to foresee or to define the extent and variety of national exigencies, and the correspondent extent and variety of the means which may be necessary to satisfy them. The circumstances that endanger the safety of nations are infinite, and for this reason no constitutional shackles can wisely be imposed on the power to which the care of it is committed” (23:11). On this same issue, Madison contends: “The means of security can only be regulated by the means and danger of attack. They will, in fact, be ever determined by these rules and by no others. It is vain to oppose constitutional barriers to the impulse of self-preservation. It is worse than vain; because it plants in the Constitution itself necessary usurpations of power, every precedent of which is a germ of unnecessary and multiplied repetitions” (41:210).
And, among other points of similarity, we find that both hold to the proposition that the extent of national powers vis-à-vis the states will depend on their “common constituents,” who, in Madison’s words, “ought not surely to be precluded from giving most of the confidence where they may discover it to be most due” (46:241). In a similar vein, Hamilton concludes: “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measure to redress the injury done to the Constitution as the exigency may suggest and prudence justify” (33:160).
Despite the ambiguities and difficulties associated with Madison’s position in The Federalist —as well as with Hamilton’s, for that matter—a convincing case can be made that, from the early 1780s until shortly after the commencement of the system he helped to fashion, Madison was an energetic proponent of a strong national government. True enough, his nationalism assumed, as he put it in his letter to Washington, a “middle ground” that did not call for the abolition of the state governments. Nor did he envision a consolidated government wherein the national government would assume control over all functions. On the contrary, he could see the states performing numerous and vital functions. Yet, for all of this, the relative authority of the two governments with respect to one another did not, in his view, depend upon known and fixed constitutional rules, stipulations, or principles. Rather, in his judgment, the lines would (and should) depend upon two highly related factors: the wishes of the “common constituents” and the administrative capacities and competence of the two governments. In this scheme of things, there was no body of functions or powers that could be marked out as irrevocably within the domain of state authority. Instead, echoing the position he set forth in the Convention, Madison felt that over time it would be abundantly clear that “it is only within a certain sphere that the federal power can, in the nature of things, be advantageously administered” (46:241).
The “federalism” of Madison’s nationalist phase can appropriately be characterized as “pragmatic.” The boundary lines between the national and state authorities would be worked out over time; however, at any given point these lines could be altered. Moreover, Madison’s approach made allowances for the fact that the national government might have to intrude upon even recognized and established areas of state authority in order to fulfill its responsibilities, particularly national defense. Hence, the lines between the two jurisdictions could never be considered as unalterably fixed.
Madison: The Strict Constructionist
What we have said to this point indicates that Madison’s views toward state-national relations were straightforward and consistent. Certainly they pose no insoluble theoretical dilemmas. However, with his position on the incorporation of a national bank on constitutional grounds in 1791, we come to the second phase of his career. Put otherwise, at this point we witness an abrupt change in his approach to federalism, an approach, as we have already mentioned, that leads to practical and theoretical difficulties that he never resolves satisfactorily. Nevertheless, by exploring them we do gain an insight into precisely why state-national relations have been a perennial source of controversy. Indeed, largely because our modern conception of federalism parallels that which we find in Madison’s second stage, the problems that Madison wrestled with also stand at the heart of our contemporary controversies.
Now Madison’s previous record as a proponent of a strong national government would seem to leave no doubts about what stance he would adopt towards the constitutionality of incorporating a national bank. Yet, astonishingly enough, when the issue did come before the House he actually led the opposition to this measure, basing his arguments on strict constitutional construction. “The power of incorporation itself, as called for in this measure,” he argued, “could never be deemed an accessory or subaltern power, to be deduced by implication, as a means of executing another power; it was in its nature a distinct, an independent and substantive prerogative, which not being enumerated in the Constitution, could never have been meant to be included in it, and not being included, could never be rightfully exercised.” Moreover, at another level, he contended that no meaning of the necessary and proper clause “can be admitted that would give an unlimited discretion to Congress.” Therefore, he reasoned, “its meaning must,” given “the natural and obvious force of the terms and the context, be limited to means necessary to the end incident to the nature of the specified powers.” “The essential characteristic of the Government as composed of limited and enumerated powers would be destroyed,” he warned, “if instead of direct and incidental means, any means could be used which, in the language of the preamble of the bill, might be conceived to be conducive to the successful conducting of the finances, or might be conceived to tend to give facility to the obtaining of loans.”
This shift, of course, prompts serious questions: What reasons can be adduced for Madison’s rather sudden switch? Is it that he perceived a new way of looking at the political system devised at Philadelphia? If so, what caused this change of perception? And, in any event, what are we to make of the federal principle? These questions lead to others with still broader concerns: can the mere fact of such a reversal be taken as evidence that there was a lack of consensus at the Convention concerning the scope of national authority vis-à-vis the states? Could it be that the Framers, to put this differently, simply took care to carve out the powers they felt it essential for the national government to possess, leaving the question of how far the exercise of these powers could intrude upon the residual powers an “open” matter to be worked out over time through the political processes much in the manner The Federalist suggests? And, if this be the case, is it not “legitimate” for one’s views of state-national powers to vary according to the issues at stake in any particular controversy? This, of course, leads us back to the question of the constitutional status of federalism.
We will probably never know what caused Madison’s change of heart. But the most frequently advanced explanations would lead us to believe that, contrary to Madison’s professions, his change is attributable to factors far removed from the constitutional arguments he advances. One such explanation is that Madison, along with his fellow Virginians, viewed the incorporation of a national bank as serving Northern interests at the expense of the South. In this vein, Gaillard Hunt, certainly not an unfriendly biographer, perceives him as reacting against Hamilton’s “inflexible devotion to a government of strongly centralized power” because Madison “knew ... that Hamilton’s system was repugnant to a great majority of the people of America, whose attachments were local or sectional.” And, in taking this stance, Hunt continues, “Madison secured the favor of the people of Virginia as he had never secured it before, and he now stood for the first time upon the firm ground of a public man who has behind him a constituency practically undivided in its support of him.” If this means, Hunt argues, “base motives of expediency must be attributed” to Madison, so, too, must they be attributed “to the former Federalists in Virginia who now acted with him.” In this regard, Hunt does not overlook the possibility that Madison and others may have fallen under Jefferson’s spell: “The truth is that Madison now had a party chief. This chief neither directed nor suggested Madison’s opposition to Hamilton’s consolidation policy, but his political conduct was now influenced by Jefferson’s stronger personality and extraordinary power of attracting men to him.”
Irving Brant offers a more principled explanation of Madison’s behavior. In his account, Madison “saw the need to impose general checks against a mounting federal imperialism.” But, because he faced “hostile majorities” in Congress, he was forced to turn “to the Constitution” even though its “ends and means presented a panorama of uncertainties.” With the bank incorporation, Madison presumably found an issue that he could use to push for a doctrine of strict construction that might serve to stem dangerous centralization. Beyond this, according to Brant, Madison’s actions are understandable in another light: during his tenure in the House, he became not only an opponent of “the new money power grasping for control of the nation” but also the defender of “farmers, mechanics, storekeepers, small manufacturers—the American wayside of life—against organized commercial and financial interests with the government as their instrument.”
Still another, more conceptual, explanation is offered by Marvin Meyers. In his view, Madison must be regarded as “a working statesman” who sought to achieve an “effective balance among the actual and shifting forces of American politics.” Consequently, when he perceived that “the concentration of power in the national government appeared to threaten freedom, corrupt government, or drive substantial parties or sections to despair, he would organize countervailing powers and emphasize anticentralist, libertarian principles.” Conversely, when the centrifugal force of local interests or presumed minority rights threatened needed and effective national authority, “Madison would throw his weight to the center and emphasize the principle of majority rule.” According to Meyers, Madison’s chief objective in this rather flexible policy “was the perfection of a lasting American republic.”
But there are serious problems with those explanations that move us away from simple political expediency to more altruistic motives in accounting for Madison’s turnabout concerning the scope of national powers. Not the least of these is that these explanations bring into question broader aspects of his theory, particularly his arguments relating to the workability and desirability of the extended republic. In this connection, we need only recall that Madison, writing as Publius, had maintained that the national government under the proposed Constitution would secure the rights and liberties of the people to a far greater degree than the state governments; that the multiplicity and diversity of interests in the extended republic rendered it unlikely that majority factions would rule; that the republican foundations of the system were sufficient to thwart minority factions; and, inter alia, that the states would enjoy a pronounced advantage over the national government in any disputes relative to their respective jurisdictions. In writing to this effect, he was only reiterating somewhat more systematically what he had said or written on other occasions over the years. Yet, the charitable explanations would have us abandon one or more of these contentions which stand at the very heart of his argument for the proposed Constitution. For instance, we are asked to believe that, within a period of two years—i.e., in the very first Congress—contrary to his previous position based on both history and firsthand experience, he had come to conclude that the states desperately needed protection from the national government; or that minority factions had actually gained control of the national government. Thus, to the degree these explanations are correct, something would seem to be drastically amiss with his extended republic theory, something that could not be remedied by repeated expostulations on the modes of proper constitutional interpretation.
In addition to this, as we might gather from these explanations, we can expect to encounter difficulties in formulating easily transmissible rules or principles from Madison’s approach in determining the proper state-national boundaries. Put otherwise, they suggest that ends or goals—whether for reasons of expediency or basic conviction—play a decisive role in his thinking about the constitutional boundaries between state and national power. And, even if it is true, as Meyers contends, that Madison was playing the role of “working statesman” —a role that would warrant his picking and choosing sides as the circumstances dictated—we still must face the question whether he did so by applying consistent rules and principles that can be communicated to future leaders who might like to play this same role.
These explanations certainly point to the conclusion that the major and enduring principles to be derived from Madison’s thoughts on federalism will have to be found in the context of a wider, extra-constitutional framework. In other words, Madison’s federalism does not reduce itself to a simple set of rules or principles presumably derived from the constitutional language. Rather, it involves a complex of considerations not the least of which would appear to be transcendent and distinctly nonconstitutional considerations and goals. This is a matter to which we shall return by way of discussing his legacy.
The Compound Republic
We do not mean to imply in the foregoing that there was no theoretical justification based on constitutional grounds for Madison’s reversal. On the contrary, as we have taken care to point out, there did exist a theoretical framework to accommodate his position, elements of which he himself had set forth in The Federalist during his nationalist days. With the bank issue what we witness, in effect, is Madison jumping from one approach to state-national relations to another. And having chosen, in Brant’s words, “the narrow path,” Madison could find justification for it in The Federalist. However, this “narrow” approach, though at first glance theoretically more attractive than that of the nationalists, on further examination gives rise to problems and concerns that were never satisfactorily resolved in The Federalist and still remain very much with us today.
A convenient point of departure for surveying the key components of this framework, as well as how it differs from the old, is Federalist 39. This essay represents his most comprehensive overview of the proposed system from the vantage point of its federal character, and it also points to the theoretical problems and difficulties to which we have referred.
In Federalist 39, Madison sets out to answer “the adversaries of the proposed Constitution” who argue that its Framers did not preserve the “federal form, which regards the Union as a Confederacy of sovereign states”; that, instead, they established a “ national government, which regards the Union as a consolidation of the States” (196). The first thing we note about this passage is Madison’s use of the term “federal.” For him, as for the Founding Fathers, the words “federal” and “confederal” or “confederacy” were used interchangeably. Likewise, for Madison and others of the time, the terms “national” or “consolidated” were used to describe governments that we today would call unitary—systems wherein sovereignty resides in the central government. Today, of course, we use the term “federal,” at least with regard to our constitutional system, to denote a division of sovereignty between the state and national governments. This terminological difficulty manifests the novelty of our constitutional arrangement in this respect; that is, at the time of founding there was no generally accepted term to describe the distribution of authority between the central government and the component units (i.e., the states) such as that contemplated in the Constitution.
Madison was quite aware of the “novelty of the undertaking.” The Framers were, so to speak, trying to navigate in uncharted waters. While, he writes, “the existing Confederation is founded on principles which are fallacious” —so much so that it must be abandoned— “other confederacies which could be consulted as precedents, have been vitiated by the same erroneous principles.” As a result, he observes, the history of confederacies “furnish[es] no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued” (37:182). In his last reflections on the nature of the system, written toward the very end of his life, he is to argue that for an understanding of the American political system it is necessary “to abandon the abstract and technical modes of expounding and designating its character; and to view it as laid down in the charter which constitutes it, as a system, hitherto without a model; neither a simple or a consolidated Government nor a Government altogether confederate.” “The division and distribution of powers,” he remarks, are “nowhere else to be found; a nondescript, to be tested and explained by itself alone.”
To answer critics of the proposed Constitution who had evidenced concern about its departure from the federal (confederal) principle and to determine its “real character,” Madison proposes five tests: (a) “the foundation on which it is to be established”; (b) “the sources from which its ordinary powers are to be drawn”; (c) “the operation of those powers”; (d) “the extent of them”; and (e) “the authority by which future changes in the government are to be introduced” (39:196). Two of these tests—(a) and (d)—which relate to the foundations of the system and the extent of the powers of the national government, are to concern Madison throughout his life. The other tests scarcely involve any problems or controversy at all. As for (b), since “the House of Representatives will derive its powers from the people; and the people will be represented in the same proportion, and on the same principle, as they are in the legislature of a particular state,” the proposed system partakes of a national character. But the Senate, wherein there is provision for equality of state representation—a recognition of the states “as political and coequal societies” —embodies the federal principle. Thus, with regard to test (b), the system is “mixed” since it embodies both the federal or confederal and national principles (39:197). Test (c) relating to the “operations” of the national powers is easily answered: because the national government will operate directly upon the individual citizens composing it, and not through the states as intermediaries, it is national in this regard. Test (e), though a bit more involved, poses no real difficulties. This method for change is not national because “the supreme and ultimate authority” does not “reside in the majority of the people of the Union.” Nor is it federal, since the concurrence of each state is not necessary for alteration. As Publius puts this: “The mode provided by the plan of the convention is not founded on either” national or federal principles. Yet it does bear a cousinly resemblance to them. To the extent that the procedure requires the concurrence of an extra-majority of the states, “it departs from the national and advances towards the federal character.” However, to the degree the process does not require unanimity among the states, “it loses again the federal and partakes of the national character” (39:198).
However, difficulties do arise with regard to tests (a) and (d). While there is an interrelationship between these two tests that accounts for a good deal of Madison’s observations about federalism, we do best to begin by examining them separately. Turning first to (a), Madison writes that the foundation of the Union is “federal.” In this respect, he notes, the “assent and ratification” to the Constitution is not to be given by the people as “comprising one entire nation, but as composing the distinct and independent States to which they respectively belong” (39:196). At first blush this would suggest that the Constitution is a compact between sovereign and equal states very much along the lines of the Articles. A closer examination of why Madison labels the foundation “federal,” however, does not support this view. In context he is applying the term “federal” to the mechanics of ratification; that is, it is through state conventions specially elected and convened that the Constitution is to be ratified. This mode of procedure is consonant with the federal principle. But the parties to the Constitution are not the states operating in their political capacities, the arrangement under the Articles. On the contrary, Madison is clear throughout his discussion on the crucial point: “the Constitution is to be founded on the assent and ratification of the people of America,” not the states as political entities. “It is to be,” he affirms, “the assent and ratification of the several States, derived from the supreme authority in each State—the authority of the people themselves” (39:196).
Though at times unduly vague, Madison is consistent throughout his career in maintaining that the Constitution is founded on the “assent and ratification” of the people. True enough, the Virginia Resolutions, which Madison authored to denounce the Alien and Sedition Acts, assert the “right” of the states “to interpose” their authority “for arresting the progress of the evil, for maintaining, within the respective limits, the authorities, rights, and liberties pertaining to them” —a “right” that devolves from the position that “the powers of the federal government” result “from the compact to which the states are parties.” But in the Virginia Report, which he wrote by way of justifying these Resolutions against the criticisms of other states, he clarifies this matter. He notes here that the word “state” is used in different senses in different contexts: “it sometimes means the separate sections of territory occupied by the political societies within each; sometimes the particular governments established by those societies; sometimes those societies as organized into those particular governments; and lastly, it means the people composing those political societies, in their highest sovereign capacity.” And, he continues, “whatever different construction of the term ‘states,’ in the resolution, may have been entertained, all will at least concur in the last mentioned; because in that sense the Constitution was submitted to the ‘states’; they are consequently parties to the compact from which the powers of the federal government result.” Nevertheless, we hasten to add, while this clarification does render him consistent concerning the foundations of the union, we should not conclude that his arguments concerning interposition are constitutionally sound. Quite the contrary. As we shall see, this clarification undercuts the theoretical ground upon which the Resolutions are based. (See, for instance, note 69.)
This conception of the foundations of the Constitution and the national government played a critical role in his repudiation of the doctrine of nullification as it was advanced by South Carolina. During his final reflections on the nature of the union, he argues: “The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entirely as they originally held it, and, consequently that no portion of it can belong to the U.S.” “But,” he asks rhetorically, “is not the Constitution itself necessarily the offspring of a sovereign authority? What but the highest political authority, could make such a Constitution?” He answers that the “sovereignty” that created such a Constitution “resides not in a single state but in the people of each of the several states, uniting with those of the others in the express and solemn compact which forms the Constitution.” Nor, in this connection, could Madison entertain the proposition implicit in nullification, namely, “that ... every party to a compact, has a right to take for granted, that its construction is the infallible one, and to act upon it against the construction of all others, having an equal right to expound the instrument, nay against the regular exposition of the constituted authorities, with the tacit sanction of the community.” This “doctrine” he termed “subversive of all constitutions, all laws, and all compacts.” What is more, from his vantage point, the proponents of nullification were forced to deny reality to support their position; that is, they had to look upon the Constitution as “a treaty, a league, or at most a confederacy among nations, as independent and sovereign, in relation to each other, as before the charter which calls itself a Constitution was formed.”
Despite this, we must note, Madison did not deny the right of a state to rebel against national authority. In answering the question what remedies are available “against the usurpation of power” by the national government other than the “right of the States individually to annul or resist them,” he responds that, if recourse to constitutional processes should fail (e.g., “Ballotboxes & Hustings”), “and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final recourse to be pursued by the minority, must be a subject of calculation, in which the degree of oppression, the means of resistance, the consequences of its failure, and consequences of its success must be the elements.” In this case, the minority would have no choice “but to rally to its reserved rights ... and to decide between acquiescence and resistance, according to the calculations above stated.” But the right in question is not, perforce, a constitutional right; it is found in a higher authority, according to Madison, “the law of nature and of nature’s God.”
As Marvin Meyers notes, the Virginia Resolutions did serve to drive the national debate at a critical juncture in our history to “the roots of political order and the nature of the Union.” Moreover, they opened up a line of argument that was highly susceptible to exploitation by the later proponents of nullification. Nevertheless, Madison’s view of the founding, consistent throughout his career, provided no theoretical support for these proponents. On the contrary, his conception of founding can be considered the major centripetal “force” in his theory of federalism.
The Problem of Divided Sovereignty
Where real difficulties do arise, as our discussion of founding intimates, is over test (d), the “extent” of the powers of the national government. It is with respect to this concern that we see the full dimensions of Madison’s change of views concerning the nature of the Union. Significant portions of his analysis in Federalist 39 seem to be fully compatible with the positions and thoughts expressed in his second phase. For instance, he does tell us with respect to this test that the government is not “national” —i.e., unitary— in character. “The idea of a national government,” he writes, “involves in it, not only an authority over the individual citizens, but an indefinite supremacy over all persons and things, so far as they are objects of lawful government.” In such systems, he points out, “all local authorities are subordinate to the supreme; and may be controlled, directed, or abolished by it at pleasure.” But, because the jurisdiction of the “proposed government extends to certain enumerated objects only, and leaves the several States a residuary and inviolable sovereignty over all other objects,” it “cannot be deemed a national one” (39:19). Only in the final paragraph of the essay does he come around to labeling the new government “federal” with respect to extent of powers.
At various points in his writings, Madison has occasion to recur to a notion of “divided sovereignty” that derives from his conception of the extent of national powers. In his “Notes on Nullification,” for instance, he writes that “the constitutions of the States, made by the people as separated into States, were made by a sovereign authority residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though short of so many of the essential attributes of sovereignty, the United States by virtue of the sovereign attributes with which they are endowed, may, to that extent, be sovereign, tho’ destitute of the attributes of which the States are not shorn.” On this point, he maintains that “those who deny the possibility of a political system, with a divided sovereignty like that of the U.S. must choose between a government purely consolidated, and an association of Governments purely federal,” two forms that have in his view proved fatally defective over the course of history. Our “compound system,” “partly federal and partly consolidated,” he goes on to say, “has been successful beyond any of the forms of Government, ancient or modern, with which it may be compared.”
Madison, writing in The Federalist, tells us something about the character or nature of the residual powers of the states. As we might expect, he is not too specific. In Federalist 10, for example, he envisions the “great and aggregate interests being referred to the national government, the local and particular to the State legislatures” (47). In most cases he indicates the scope and nature of the states’ residual powers by spelling out in some detail the powers of the national government. His most definitive statement concerning this division is to be found in Federalist 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the States are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and property of the States (238).
While there are obvious problems associated with this concept of “divided sovereignty,” some of which we will discuss later, we may provisionally note one aspect of this matter that is not so obvious: the divided sovereignty, as pictured by Madison, may be accepted as a fact; yet, there are different ways of looking at this fact in formulating a conception of the relative constitutional powers of the state and national governments. Proof of this is that Hamilton, writing in Federalist 9, seemed to share the conception of divided sovereignty that Madison advanced in Federalist 39. “The proposed Constitution,” in his words, “so far from implying an abolition of the State governments, makes them a constituent part of the national sovereignty ... and leaves in their possession certain exclusive and very important portions of sovereign powers” (41). But Hamilton surely did not come to look upon this division in the same way as Madison, namely, as a limitation on the extent of the exercise of the delegated powers of the national government.
Beyond this, as our previous remarks would suggest, it is doubtful—despite Madison’s assertion to the contrary—that the states’ residual powers could be considered “inviolable.” At the very least, Madison’s theory as set forth in The Federalist points to a “tension” on this score, for, as we have seen, it cannot entertain the notion of any limits on the exercise of powers necessary for the national defense. And we can readily imagine the national government intruding upon the states’ domain, and legitimately so, to defend the Union against foreign attack. However, and very much to the point, Madison did not conceive of the national government’s having a blank check; that is, he recognized that the first clause of Article I, Section 8, which authorizes Congress “To lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts, and provide for the common Defense and general Welfare of the United States,” could be (and, indeed, was by certain Antifederalists) interpreted to provide the national government with “an unlimited commission to exercise every power which may be alleged to be necessary for the common defense or general welfare” (41:214). In other words, such an interpretation, he believed, would render the system virtually unitary with respect to extent of powers. Consequently, he seems keen on refuting any such reading: “For what purpose,” he asks, “could the enumeration of particular powers be inserted, if these and all others were meant to be included in the preceding general power?” By way of answering, he remarks, “Nothing is more natural or common than first to use a general phrase, and then to explain and qualify it by a recital of particulars.” Thus, he contends, the particulars or enumerated powers can be exercised in accordance with the goals or intent expressed in the “general phrase” (41:215).
Madison also employs the “inadmissible latitude of construction” principle in his criticism of Marshall’s decision in McCulloch v. Maryland. His argument is not that Marshall reached the wrong conclusion concerning the constitutionality of the national bank—a position that he could hardly take since he had, as President, switched sides on this measure. Rather, he argues that the test developed by Marshall in determining the legitimate extent of national powers was far too “broad” and “pliant.” Specifically, he objected to the “high sanction given to a latitude in expounding the Constitution which seems to break down the landmarks intended by a specification of the Powers of Congress, and to substitute for a definite connection between means and ends, a Legislative discretion as to the former to which no practical limit can be assigned.” “Ends and means,” he observes, “may shift their character at the will and according to the ingenuity of the Legislative Body. What is an end in one case may be a means in another; nay in the same case, may be either an end or a means at the Legislative option.” In this regard, he felt that a major source of “the error in expounding the Constitution” is to be found “in the use made of the species of sovereignty implied in the nature of government”; namely, that “the specified powers vested in Congress ... are sovereign powers, and that as such they carry with them an unlimited discretion as to the means of executing them.” But, Madison is quick to point out, “limited government may be limited in its sovereignty as well with respect to the means as to the objects of its powers; and that to give an extent to the former superseding the limits to the latter, is in effect to convert a limited into an unlimited Government.” In this respect, he held that there is a “reasonable medium between expounding the Constitution with the strictness of a penal law, or other ordinary statute, and expounding it with a laxity which may vary its essential character, and encroach on the local sovereignties with which it was meant to be reconcilable.”
Madison, in his post-nationalist phase, makes good use of the proposition that no phrase or clause of the Constitution should be interpreted in such a way as to give the national government an “unlimited commission.” The most notable of these is probably his veto in 1817 of an internal improvements bill, one of his last acts as President. In his veto message, which also constituted his farewell message, he warned that an improper interpretation of the “common Defense and general Welfare” clause would give Congress “a general power of legislation instead of the defined and limited one” intended. Citing the “supreme Law of the Land” clause, he contended that such an interpretation “would have the effect of subjecting both the Constitution and the laws of the several States in all cases not specifically exempted to be superseded by laws of Congress.” Towards the end of his message, he applies the same principle in more general terms: he cannot see how the power for internal improvements can “be deduced from any part” of the express powers “without an inadmissible latitude of construction.” And without “adequate landmarks” he feared that “the permanent success of the Constitution” which “depended on a definite partition of powers between the General and the State Governments” would be endangered.
The Final Say: Nation or States?
From what we have said to this point, we can readily see that Madison’s task in preserving the divided sovereignty would have been easier if he could have substantively identified those portions of “inviolable sovereignty” retained by the states. This is to say, if he could somehow draw a line between the two jurisdictions, then the task of maintaining the proper division would be immensely facilitated. More concretely, in his criticisms of Marshall, he seems to advance the proposition that the states’ residual powers or authority do place limitations on the means that the national government may use in executing its delegated powers. Yet, he does not specify what these residual powers are. But, it seems clear that coming to the “reasonable medium” he calls for would be far easier with at least some specification of areas within the sovereign domain of the states. What seems equally clear, moreover, is that Madison was fully aware of the impossibility of spelling out a substantive division or allocation of powers between the state and national governments, just as he could perceive the futility of attempting “a positive enumeration of the powers necessary and proper” for the exercise of delegated powers (44:232). This, it would seem, accounts for the fact that, when he writes of the division of powers, he does so in general, not specific, terms. Indeed, he speaks not so much of powers but of the different objectives, goals, and purposes of the two jurisdictions.
But if the powers cannot be substantively divided so that the parties have a pretty clear idea of where they stand relative to one another, then the answer to maintaining a division must be sought by providing procedures to settle differences as they arise. And, returning to Federalist 39, we see that Madison, immediately after writing of the states’ “residual and inviolable sovereignty,” turns to the crucial matter of how controversies should be settled. Here he declares that “the tribunal which is ultimately to decide, is to be established under the general government.” This, he is quick to add, “does not change the principle of the case”; this tribunal is to decide controversies “impartially ... according to the rules of the Constitution.” To secure this impartiality, he writes, “all the usual and most effective precautions have been taken.” Such a “tribunal,” he concludes, “is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments...is a position not likely to be combated” (198).
It is with regard to the issues raised in this passage that the major difficulties associated with Madison’s “second phase” federalism seem to arise. In the first place, it seems a bit disingenuous for him to maintain that the controversies are to be settled “according to the rules of the Constitution.” This suggests that the Constitution does contain known rules for the resolution of such conflicts that the tribunal can and should apply. But, save for very obvious and flagrant cases—and these, in the nature of the case, would usually involve state encroachment on national authority—it is difficult to discern any such rules. To see this we need only take important areas where conflict could easily have been foreseen. For instance, what rules does the Constitution set forth for the impartial resolution of state-national conflicts that arise over the meaning of the “necessary and proper” clause? Or what rules do we find for impartially determining the scope and nature of the commerce power relative to the residual powers of the states? In any event, as we have already seen, integral to any dispute over the proper boundaries between state and national jurisdictions is the issue of what “tests” or rules ought to be employed. This is to say, if agreement could be reached over the rules for the settlement of disputes, controversies between the jurisdictions would substantially subside. Indeed, to the extent any such rules could be refined, such conflict might conceivably disappear altogether. In short, Madison, in referring to such rules, seems to beg the question.
We can look at the passage in another light that would, at first glance, seem to make more sense; namely, by “rules of the Constitution” Madison was referring simply to procedures called for by the Constitution; that is, for example, disputes are to be settled by a national authority, not by the states. But looking at the phrase from this perspective is not without enormous drawbacks. The fact is that Madison, even writing as Publius, is not at all unambiguous about how disputes should be settled. Quite the contrary. We need only recall here his position in Federalist 46, namely that the jurisdictional lines “will not depend merely on the comparative ambition or address of the different governments.” Rather, he holds, “the ultimate authority, wherever the derivative may be found, resides in the people alone. Truth, no less than decency requires that the event in every case should be supposed to depend on the sentiments and sanction of the common constituents.” And, beyond this, he writes: “If ... the people should in future become more partial to the federal than to the State governments, the change can only result from such manifest and irresistible proofs of better administration, as will overcome all their antecedent propensities” toward the state governments. If this does turn out to be the case, he does not believe the people should “be precluded from giving most of their confidence where they may discover it to be most due” (241).
We have, then, on the face of it, two answers to the procedural question of who should decide: a tribunal, presumably the Supreme Court, or the common constituents. It might be argued, of course, that Madison really provides only one answer: he believed that the Supreme Court should make an initial ruling that the “common constituents” could overturn through the amendment process, if they so desired. But this interpretation seems most unlikely, because it is an open invitation to frequent debate about fundamental constituent principles, a debate that could only undermine public confidence in the Constitution. On this matter, the words of Federalist 49 are quite relevant: “The danger of disturbing the public tranquility by interesting too strongly the public passions, is a still more serious objection against a frequent reference of constitutional questions to the decision of the whole society” (260).
But if, as seems likely, the “common constituent” solution does not mean the people acting in their constituent capacity (i.e., amending the Constitution), then we must ask: How or by what means are the common constituents to settle these jurisdictional disputes? How are they to adjust the boundary line between the national and state authorities? The most obvious answer would seem to be through Congress, since it is the only institution that can be said to represent the common constituents. This, of course, would be to lend a presumptive legitimacy to whatever decision Congress—the institution most likely to encroach upon the states’ domain—may make concerning the extent of national powers vis-à-vis the states. This would oblige those who might contend that the national government has overstepped its bounds to make their case in the political arena in hopes of persuading Congress to reverse itself. What this means, in turn, is that Madison looked upon the disputes surrounding state-national relations as primarily political issues to be settled through distinctly political, not judicial or constituent, processes. Such a solution is certainly consonant with Madison’s nationalistic views and, in slightly different form, it comes to play a significant role in his second phase thinking.
While this solution is tantamount to making Congress, the chief repository of national powers, the judge of the extent, Madison, writing as Publius, did not see any real dangers to the states’ residual sovereignty resulting from this. Indeed, as we have already noted, he believed the common constituents would have a distinct propensity to favor the states over the national government should there be any conflict. Certain of his points in this respect are noteworthy in light of his later thoughts concerning state-national relations. On one side, Madison believed that “the prepossessions, which the members of Congress will carry into the federal government, will generally be favorable to the States.” Congress under the Articles, he observes, paid “an undue attention to the local prejudices, interests, and views of the particular States” (46:242). And, while he sees every prospect that the new national government “will ... embrace a more enlarged plan of policy,” its members surely will “be disinclined to invade the rights of the individual States, or the prerogatives of their governments.” However, he does not believe such a “reciprocal” disinclination would be found in state governments bent upon augmenting “their prerogative by defalcation from the federal government” (46:242).
But what if the national government were to “feel an equal disposition with the State government to extend its power beyond the due limits”? (46:242) Madison answers this question at some length and provides still another, though distinctly nonconstitutional, solution to state-national controversies. He notes that, “should an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand” (46:242). “The disquietude of the people; their repugnance, and, perhaps, refusal to cooperate” coupled with “the frowns of the executive magistracy of the State” and “embarrassments created by legislative devices” would pose difficulties “in any State” and “very serious impediments” “in a large State.” And if, he continues, “several adjoining States” were to act “in unison,” they would “present obstructions which the federal government would hardly be willing to encounter” (46:243).
The situation, from Madison’s perspective, could only worsen if the federal government were to undertake “ambitious encroachments ... on the authority of the State government.” Such encroachments, he writes, “would be signals of general alarm. Every government would espouse the common case. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other.” Yet, Madison can scarcely envision this occurring: “Who,” he asks, “would be the parties” in such a showdown? He answers: “A few representatives of the people would be opposed to the people themselves; or rather one set of representatives would be contending against thirteen sets of representatives, with the whole body of their common constituents on the side of the latter” (46:243).
Madison, not content to rest his case on these grounds alone, turns to the “visionary supposition that the federal government might over time set out to accumulate a military force for the projects of ambition.” Aside from arguing that the national government could not conceivably raise an army large enough for this purpose, he ridicules the notion that “the people and the States should, for a sufficient period of time, elect an uninterrupted succession of men ready to betray both; that the traitors should, throughout this period, uniformly and systematically pursue some fixed plan for the extension of the military establishment; that the governments and the people of the States should silently and patiently behold the gathering storm, and continue to supply the materials, until it should be prepared to burst on their own heads” (46:244). In sum, he holds that “the federal government” under the forms of the proposed Constitution “is sufficiently dependent on the people” and that “it will be restrained” by this “dependence from forming schemes obnoxious to their constituents” (46:245).
The Final Say: Courts or Congress?
As we have indicated, all of the theoretical difficulties that flow from The Federalist manifest themselves in Madison’s second phase. To be sure, they take on an added complexity, but in the last analysis they come down to a search for a suitable procedure or process for settling controversies within his system of divided sovereignty. As we might expect, it is a search in which we find Madison again shifting ground, so much so that he appears to provide no definitive answer to this critical concern. This can best be illustrated by examining some of his salient positions.
We can fruitfully begin with his 1831 response to the charge of inconsistency leveled against him for assenting as President (1817) to the creation of a national bank. In this response he argues that an authoritative status attaches to constitutional interpretations that are grounded on a seemingly enduring consensus that finds expression in the political branches of the national government. In maintaining this, he of course has to face up to a theoretical question that arises from his conception of the Constitution as binding and fundamental law; namely, having sworn to uphold the Constitution, was he not bound, as President, to adhere to “his own construction of it,” however different that construction might be from the “consensual” construction? This he answers by contending that even the “most ardent theorist” would “find it impossible to adhere, and act officially upon, his solitary opinions as to the meaning of the law or Constitution, in opposition to a construction reduced to practice during a reasonable period of time; more especially when no prospect existed of a change of construction by the public or its agents.” In effect, he argues, “the true and safe construction of a constitution” is to be found in “the uniform sanction of successive legislative bodies, through a period of years...under...varied parties,” rather than in “the opinions of every new Legislature” which may fall under the spell of “the spirit of party” or the “eloquence and address of popular statesmen, themselves, perhaps, under the influence of the same misleading causes.”
More specifically with regard to the national bank, he notes that its original foundation had been the subject of “ample discussion in its passage through the several branches.” Moreover, during its twenty years of existence it had received “annual legislative recognition” and “the entire acquiesence of all local authority, as well as of the nation at large.” He concludes: “a veto from the Executive under these circumstances, with an admission of the expediency and almost necessity of the measure, would have been a defiance of all obligations derived from a course of precedents amounting to the requisite evidence of the national judgment and intention.”
Yet, in the very same year that Madison signed the bank bill, he saw fit—as we have remarked previously—to veto the internal improvements bill on virtually the same grounds he took in his original opposition to the bank. In his veto message, however, he is evidently concerned with the matter of precedents and consent. Aside from remarking that the “power to construct roads and canals” cannot be derived from the Constitution without “an inadmissible latitude of construction,” he also notes that the “assent of the States,” as provided for in the bill, cannot extend the powers of Congress into areas beyond those “specified and provided for in the Constitution.” Nor could Madison find sufficient “precedent” for the assumption of such a power despite the fact that during the Jefferson administration he had personally overseen extensive internal improvement projects. In this instance Madison holds that the national government can secure this power only through the amendment process.
While his reversal on the bank issue does help us to determine what constitutes a lasting consensus among the common constituents regarding state-national boundaries, it also raises a number of questions and concerns, some of which are intensified by his veto of the internal improvements bill. To begin with, what is sufficient precedent for a given constitutional construction? After all, what seems clear is that Madison could easily have found ample precedent to sign the internal improvements bill had he been so inclined for the very reasons he advances in justification for reversing his position on the bank. Assuming precedent to be a legitimate consideration in judging of the constitutionality of a measure, unless we can specify what constitutes sufficient precedent with some degree of precision, it cannot very well serve the ends that Madison had in mind; namely, a high degree of certainty, stability, and continuity concerning the meaning of the Constitution which is necessary for a decent and orderly government characterized by liberty. We might find, as the very examples before us suggest, that what is sufficient precedent for one might not be so for another. Consequently, over a period of years marked by abrupt changes in partisan sentiment, grounds would exist for both claiming and denying the existence of sufficient precedents.
Similar concerns arise with determining what we have called the “consensus” among the common constituents. It would seem that, on the basis of what Madison writes in this regard, we have good reason to presume such a consensus if the political parties have held the same constitutional construction for a “reasonable” period of time. Yet, what if a sizeable minority of one of the parties—perhaps say, the representatives of a particular geographical region—has, over the years, consistently opposed the construction given by legislative majorities? Are we to say, then, that a consensus exists? Or do we make this determination, as Madison seems to suggest, on an estimate of the possibilities of “a change in the public opinion”?
In addition to reliance on precedent and consensus as a means for fixing the proper state-national boundaries, Madison also perceived a role that the states might play. Because he was particularly anxious in the later part of his life to dissociate the Virginia Resolutions and Report which he authored from the doctrine of nullification advanced by South Carolina, he was compelled to differentiate, at least to some degree, the proper and improper constitutional modes of state protest against what the states considered to be intrusions on their authority. This endeavor can be viewed as a modification and refinement of his views presented in Federalist 46, where, as we have seen, he discusses the states’ role in containing the national government.
In his “Notes on Nullification,” written during the last two years of his life, Madison contends that the Virginia Resolutions, far from justifying nullification, were primarily intended to “produce a conviction everywhere ... that the Constitution had been violated by the obnoxious [Alien and Sedition] acts and to procure a concurrence and cooperation of the other States in effectuating a repeal of the acts.” However, the text of the Resolutions suggests that its purpose went well beyond this rather modest political goal. Its third, and most controversial resolution, read: “that, in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact [the Constitution], 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 limits, the authorities, rights, and liberties appertaining to them.” The seventh resolution appeals “to the like disposition in 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 cooperating with this state, in maintaining, unimpaired, the authorities, rights, and liberties, reserved to the states respectively, or to the people.”
Madison in his “Notes on Nullification” dwells upon these resolutions to distinguish their meaning and intent from that of the nullification doctrine advanced by South Carolina. But his basic concern is a narrow one; namely, that his resolutions do not assert the right of a single state “to arrest or annul an act of the General Government which it may deem unconstitutional.” Rather, he points out, throughout the Resolutions the right of the interposition is said to reside in the “States” —the plural, rather than singular, reference. To this effect, he writes: “by the rightful authority to interpose ... was meant, not the authority of the States singly and separately, but their authority as the parties to the Constitution; the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other institutions.” In this vein, he goes on, “There cannot be different laws in different states on subjects within the compact without subverting its fundamental principles, and rendering it as abortive in practice as it would be in theory.” Indeed, he notes, “the persevering differences among the States on the constitutionality of Federal acts” would be sufficient to cause turmoil in the system.
Madison’s rejection of nullification and defense of the Virginia Resolutions does make sense on at least two grounds. The most obvious, of course, is that to acknowledge the right of nullification by a single state would undoubtedly lead to chaos ultimately destructive of the Union. Indeed, why he chose to direct his argument only against nullification by a single state is baffling since the same consequences would flow in rough proportion as the states are less than unanimous in nullifying a particular national law. Of greater significance in light of his other views on this matter is his defense of interposition on purely political grounds; that is, as a formal, structured, and organized protest. At this level he believes the effort resulted in “a triumph over the obnoxious acts, and an apparent abandonment of them forever.” And, while he concedes that some contend the Resolutions did not have this effect, he maintains that their impact “may be safely left to the recollection of those who were co-temporary with the crisis, and to the researches of those who were not, taking for their guides the reception given to the proceedings by the Republican party everywhere, and the pains taken by it, in multiplying republications of them [the Virginia Resolutions] in newspapers and in other forms.”
Beyond this there are very serious problems with interposition, so serious that it is highly doubtful that it could ever represent a workable means or method for the settlement of state-national tensions. On the practical side, it should be noted, interposition, however it might be exercised by a state, presumably could be resorted to only when all the states had come to agreement concerning its appropriateness or necessity. We say “presumably” because Madison is not exactly straightforward on this question. However, he does write of the states’ interposing in “their collective character as parties to and creators of the Constitution.” His evident concern would seem to be providing for uniformity of law among the states in the interposition process in order to avoid the potential chaos inherent in the doctrine of nullification by a single state. To this point he writes that the purpose “to be attained by the invited cooperation with Virginia” was “to maintain within the several States their respective authorities, rights, and liberties, which could not be constitutionally different in different States, not inconsistent with a sameness in the authority and laws of the U.S. in all and in each.” In any event, Madison does not indicate that he believes anything short of unanimity—e.g., two-thirds or three-fourths of the states—is sufficient to “trigger” interposition.
Bearing this in mind, there is every reason to believe that interposition would never prove an effective barrier to national encroachments. It is hardly possible, for reasons that Madison spells out in The Federalist, that Congress would pass a law so blatantly intrusive that all of the states—or even three-fourths or two-thirds—would act to interpose. The negative reception accorded the Virginia Resolutions should have made this much abundantly clear to Madison, the more so as he regarded his case against the national government as conclusive. Moreover, reliance on interposition could well prove counterproductive from the states’ point of view; that is, if, perchance, the national government were intent on encroaching on the states, the unanimity (or extra-majority) requirement would make it extremely difficult for the states to resist. What is more, the states’ failure to interpose effectively could be taken to bestow constitutionality on the questionable national laws. Thus, at this level, interposition would seem to be totally inadequate for the very purposes Madison had in mind. In fact, to rely upon it would serve to give the national government a relatively free hand in setting state-national boundaries.
On the theoretical side, Madison contends that the import of the Virginia Resolution was “to show that the authority to interpose existed, and was a resort beyond that of the Supreme Court ... or any authority derived from the Constitution.” However, in his depiction of the process there is a serious flaw that stems from the fact that, if interposition proceeds from the state legislatures in the manner he suggests, then it is the state governments, not the constituent majorities in the states, that are determining the division of authority. Clearly, given Madison’s own conception of our constitutional foundations, the state governments have no more authority to do this than the national government. What this means is that, even if all the states were to agree to interpose, their subsequent actions would lack constitutional sanction.
Why Madison involved himself so deeply in such an exercise and why, afterwards, he sought to justify it on the grounds that he does is puzzling, particularly in light of Article V which provides an easier and constitutional means of redress. What is apparent is that his efforts to “fuse” the states into the process of resolving state-national controversies cannot be taken seriously from a constitutional point of view. Save for the amendment process—and even here there are difficulties—the states, for all practical purposes, are constitutionally “locked” into the system at a decided disadvantage compared to the national government. Nevertheless, much as he had in The Federalist, Madison looks upon the states as a political force that must somehow be factored into the final resolution. Viewed from this perspective, his doctrine of interposition makes sense; it provides an outlet for the expression of views from the states that prudent politicians at the national level would do well to heed. In the last analysis, to judge from what he does say about it in relation to the Alien and Sedition Acts, he did look upon interposition in this fashion.
Finally, Madison’s views on the Court as an arbiter of state-national boundaries in his second stage retain the ambiguities we encountered in The Federalist. More than once he reaffirms and amplifies his position as set forth in Federalist 39. At one point, he maintains that “the provision immediately and ordinarily relied on” for the settlement of “controversies ... concerning the partition line between the powers belonging to the Federal and State government ... is manifestly the Supreme Court of the United States, clothed as it is with a jurisdiction ‘in controversies to which the United States shall be a party’... and being so constituted as to render it independent and impartial in its decisions.” He adds that “other and ulterior resorts” for the settlement of controversies “would remain, in the elective process, in the hands of the people themselves, the joining constituents of the parties, and in the provision made by the Constitution for amending itself.”
On another occasion he puts the Court’s role in a wider context. To secure “the rights and powers of the States in their individual capacities, against an undue preponderance of the powers granted to the government over them in their united capacity, the Constitution has relied on, (1) the responsibility of the Senators and Representatives in the Legislature of the U.S. to the Legislatures and people of the states; (2) the responsibility of the President to the people of the U.S.; and (3) the liability of the Executive and Judicial functionaries of the U.S. to impeachment by the Representatives of the people of the States, in one branch of the Legislature ... and trial by the Representatives of the States, in the other branch.” While conceding that “time alone” will determine whether “this structure of Government” will operate to preserve the legitimate rights and powers of the states, he feels that thus far (1830) “sufficient control, in the popular will,” has been exercised over the “Executive and Legislative Departments.” Such, he notes, was the case with the Alien and Sedition Laws when “the first election that ensued after their passage put an end to them.” Moreover, in his opinion, “whatever may have been the character of the other acts, in the judgment of many of us, it is but true, that they have generally accorded with the view of a majority of the States and of the people.”
Turning specifically to the Supreme Court in this context, he maintains that the “thirty-ninth number of The Federalist ” embodies both the “prevailing view” at the time of founding and the “view that has continued to prevail” concerning the settlement of controversies between the national and state governments: namely, the Supreme Court is “the tribunal which is ultimately to decide.” He is quick to add this “concession of ... power to the Supreme Court, in cases falling within the course of its functions ... has not always been rightly exercised.” But, though the courts have on occasion rendered decisions “which have incurred serious and extensive disapprobation,” Madison still gives the judiciary and, presumably, the Supreme Court, high marks: “with but few exceptions, the course of the Judiciary has been hitherto sustained by the predominant sense of the nation.”
In this context Madison was not so much concerned with the Court setting forth general principles or standards for determining state-national boundaries or restraining the national government, as with the capacity of the national government to enforce its laws uniformly among the states. He emphasizes “the utter inefficiency of a supremacy in a law of the land, without a supremacy in the exposition and execution of the law.” What is more, he argues, without national judicial supremacy “all equipoise between the Federal Government and the State Governments” would be destroyed: “whilst the functions of the Federal Government are directly or indirectly elected by and responsible to the states, and the functionaries of the states are in their appointment and responsibility wholly independent of the U.S., no constitutional control of any sort belonged to the United States over the States.” What is “evident” from this, according to Madison, is that without national judicial supremacy “it would be in the power of the States, individually, to pass unauthorized laws, and carry them into complete effect, anything in the Constitution and law of the U.S. to the contrary notwithstanding.”
What we see from the foregoing is that there are two aspects or dimensions of Madison’s position regarding the role of the Court: one that deals with its role relative to the states; the other that concerns its authority relative to the other branches of the national government, principally Congress. The first of these, the one that Madison emphasizes here, is relatively free from difficulties. The Court, this is to say, is indispensable for the reasons that Madison sets forth. Yet, in Madison’s view, the Court is obliged to nullify national laws that encroach upon the states’ residual powers. But, in this respect, he does not advance our understanding of the principles, standards, norms, or doctrines the Court is to use in making its determinations much beyond what he writes in The Federalist.
Theoretical and practical problems beyond those raised in The Federalist do emerge, however, in his second phase. One very practical concern, and one that he notes in his Virginia Report, is “that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department.” And still another, potentially more serious problem that he mentions in the same context is that “the judicial department,” like the legislative and executive, “may exercise or sanction dangerous powers beyond the grant of the Constitution.” These difficulties, as we might expect, he brings to the fore by way of justifying his doctrine of interposition, a doctrine that, as we have seen, offers no effective remedy.
But the chief difficulty with Madison’s position concerns, once again, the relationship between the Court and the people operating in their political capacities through the elective departments of the national government. Madison informs us, consistent with his Federalist views, that the political departments of the national government will rarely intrude upon the residual powers of the states. So we may assume that the Court would seldom have occasion to nullify a national law that might be the source of controversy. From another perspective, as we have also seen, he seems to judge the Court’s record—and that of the political branches, too—by the degree to which its decisions have been “sustained by the sense of the nation.” Put another way, we may say that he evidenced some concern about the degree to which the Court’s decisions fell within the boundaries of what can be termed the settled consensus of the common constituents as manifested over time in the political branches of the system, both state and national. For this reason, the question whether the Court’s opinion should take precedence over this developed consensus is not easy to answer. Suppose, for instance, that Marshall in McCulloch v. Maryland had declared the national bank unconstitutional on the same grounds originally advanced by Representative Madison. What might the later Madison have said about such a decision in light of the reasons he advanced for his switch on the bank issue? Which decision, that of the common constituents expressed over time or that of the Court, would he have accepted as authoritative?
Leaving these and like questions to one side, we do know how he felt the state-national issues would be settled in practice. Consonant with his more general republican theory, he writes that “it is not probable that the Supreme Court would long be indulged in a career of usurpation opposed to the decided opinions and policy of the Legislature.” Nor did he believe “Congress, seconded by Judicial Power” could, “without some change in the character of the nation, succeed in durable violations of the rights and authorities of the States.” “But, what,” he asks, “is to control Congress when backed and even pushed on by a majority of their Constituents?” His answer: “Nothing within the pale of the Constitution but sound arguments and conciliatory expostulation addressed both to Congress and to their Constituents.”
Madison’s positions on this critical issue would lead us to believe that we must differentiate between theory and practice. In practice, as he remarks, the people acting through Congress will prevail, we may presume, because of the republican nature of the system (it will move where the greater “weight” carries it) and the central constitutional role of the Congress. At the level of constitutional theory he is somewhat ambiguous. He mentions amendments; a “tribunal,” the Supreme Court as it turns out; “common constituents,” (which would “square” the practical with the theoretical); a firm “consensus,” such as that which formed around the legitimacy of the national bank; and “interposition.” In no instance does he suggest that the states, save as they participate in the amendment or interposition processes, should have any say in the final resolution of disputes between the two jurisdictions. This is understandable. But, the role he suggests for national institutions—i.e., the Congress and the Supreme Court—as potential referees is not free from theoretical difficulties, since they can also be considered parties to the disputes or controversies they are called upon to settle. Nevertheless, as we see from his discussion of the Alien and Sedition Acts in particular, he seems to believe that the most effective remedy for encroachments by the national government is to be had through distinctly political processes at the national level, that is, through an appeal to the common constituents who will bring Congress back into line. “In the last resort” he writes in The Federalist: “a remedy [for usurpation of powers by the national government] must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers” (44:233).
Madison: Proponent of Consensual Processes
As the foregoing should clearly indicate, there would seem to be insurmountable difficulties associated with rendering Madison’s views on federalism consistent. They do not seem to fit into a coherent whole. Of course, we should hardly expect to find too much by way of consistency between his nationalist and post-nationalist stages. But we do find some consistency, which is not altogether insignificant. We have already noted, for instance, that his conception of the foundations of the Union, though unnecessarily obscure in places, remains the same throughout and so, too, does his view of the role of the individual states in resolving federal disputes. His position regarding the “general welfare” clause does not change from that he set forth in The Federalist during his nationalist phase, though in practice he did deviate from it. And, it would be fair to say, he was consistent throughout in his opposition to constitutional constructions that would, in effect, render the system consolidated or unitary.
Madison’s real difficulties arise when he takes upon himself the defense of divided sovereignty. While this notion, as we have seen, runs through both stages of his thought, we perceive the problems it raises in terms of theoretical consistency most clearly in the second phase. Specifically, during his “shifting” period, Madison sought to justify divided sovereignty by pointing out the detrimental effects consolidation would have on values such as liberty, justice, and individual rights; that is, on grounds that scarcely fit well with his extended republic theory to which he adhered throughout his life. Moreover, he never faces up to the difficulty that emerges in The Federalist: how viable can a system of divided sovereignty be when the national government is charged with the responsibility of providing for the common defense? Can the states, in other words, really possess “inviolable” portions of sovereignty without depriving the nation of its capacity for self-preservation?
But perhaps the greatest difficult encountered in Madison’s thought is this: while he defends divided sovereignty, he does not provide us much by the way of transmissible rules and principles for the resolution of disputes between the national and state authorities. To be sure, he addresses this problem, but his answers do vary. Yet, in fairness to Madison and others who have wrestled with this issue, we should hardly have expected him to provide us with clear-cut or definitive answers. Today, even with the benefit of over two hundred years of experience, we still are no closer than Madison to formulating any such principles or standards. Indeed, if we take recent decades as our measure, we seem to have retrogressed: we still cling to the principle of federalism built upon Madison’s notion of “divided sovereignty” —if, that is, we are to believe our American government textbooks—but in decision-making circles at the national level, concern about the states’ portion of sovereignty, a matter of enormous concern for Madison, is clearly on the wane.
In the last analysis, the search for such rules and principles would appear to be futile. But this very futility is, in our judgment, the profoundest lesson to be derived from Madison’s teachings on federalism; namely, we are forced to rely upon our own best resources for resolving jurisdictional disputes. Put otherwise, while the Constitution more or less forces us into resolving these conflicts, it does not provide us with rules or principles for doing so. We are left to our own devices, within, of course, the general boundaries provided by the Constitution.
Now Madison does not leave us completely in the dark over how we should go about settling the perennial disputes over the “line.” At the very least he identifies, either expressly or by clear implication, conditions or processes that are important for a satisfactory resolution of differences over the proper boundaries. The most important of these would seem to be those that hold out the prospect of insuring a stable consensus—a consensus that differs from others that emerge from our political processes because a wider and more fundamental complex of considerations and values must necessarily come into play. For instance, the participants are obliged to address themselves at some point to the constitutional issues involved and whatever consensus does emerge cannot be crafted in terms so broad as to have the effect of abrogating the constitutional principle that stands at the heart of the controversy.
Still another aspect of this consensus would be its acceptance by the states. In this regard, Madison seemed to envision the states not only playing a role in shaping the view of the common constituents, but also in setting the broad limits within which the consensus would have to come to rest. Put otherwise, the views of the states would have to be taken very seriously because state reactions, even those far less extreme than Madison pictures in The Federalist, could well have an adverse effect on the implementation of national policy. Indeed, we can well imagine, given the terms in which Madison writes, that what a majority of common constituents want might have to be severely modified or even abandoned in the face of potential opposition by several states, particularly those in a contiguous geographical area. Thus, the stable consensus comprises something more than just the majority of the common constituents; in many instances, it also has to embody the attitudes that find expression through the agencies of the states.
To the extent that these observations conform with Madison’s general approach—and we think they do—then we may say that he looked, in the main, to the distinctly political processes for setting the boundaries between national and state authority. This seems evident enough because only through the give-and-take of these processes can there be any guarantee or assurance that the outcome does represent a genuine consensus. Obviously, the Supreme Court, given its isolation from the actual give-and-take of politics, is ill-suited to take into account the various forces that must be accommodated to achieve a lasting consensus. What is more, the very nature of the judicial processes precludes measuring the relative intensities of the competing parties.
In saying this, we recognize that another view or interpretation of Madison’s position is arguable; namely, he meant for the boundaries to be set by the Court over time, not through the consensual processes described above. In this view, which prevails today, the Court’s decisions would be final and binding unless modified or overturned by a constitutional amendment. There is, as we have seen, some evidence to support this interpretation. Aside from his recurrence in his later years to the solution of an impartial “tribunal,” originally set forth in Federalist 39, he does seem to hold to the proposition that there are fixed boundaries—as distinct from the “floating” or changing boundaries provided through the consensual process—that ought to be secured by the courts. Indeed, the language used in Federalist 39 would suggest as much: the controversies between the two relatively distinct “spheres” of jurisdiction can be settled impartially by recourse to “the rules of the Constitution.”
While arguable, this interpretation, in the last analysis, is probably not tenable for a number of reasons and considerations we have already examined. The so-called “rules of the Constitution” are certainly not so evident or clear as Madison would seem to have us believe. Moreover, this interpretation leaves no room for the standard he sets forth at other places in his writings, namely, the degree to which decisions by the Court and Congress are “sustained by the predominant sense of the nation.” And very much related to this, we would have to ignore or dismiss his remarks about the consensual processes that brought about his reversal of judgment on the bank issue. To this we may add another consideration not at all alien to Madison’s more general views: reliance on the Court could well produce an inflexibility that might seriously impair the national government in meeting its constitutional obligations; or, if not that, the flouting of the Court’s decisions by the political arms would, on any showing, undermine popular confidence in the system.
Finally, in this connection, as we have intimated, the answers that Madison provides for resolving state-national cleavages—the “consensus” and “Court” —are not so incompatible as they might seem. Certainly, in the consensual solution, the Court would have a significant role to play. It would, among other things, have to interpret the relevant provision of the national laws in controversies arising from their implementation. In many instances, of course, it would have some discretion in fitting the terms of the law to the specific circumstances or in determining the “intent” of Congress. In this fashion, at what might be called the “tactical” level, it would have a decided input in adjusting the boundaries between the two jurisdictions. In its most important functions, providing for the uniform interpretation of national laws and insuring that state laws do not contravene national laws or authority, the Court would also have an input. In other words, it is easy to conceive of many circumstances where the Court would act in the capacity Madison ascribes to it in Federalist 39 without having to concede that it is the final arbiter, short of recourse to amendment, with regard to the proper division of powers.
What is beyond dispute is that, no matter what interpretation we lend to Madison’s thoughts, there is an insurmountable gulf between them and the more controversial of our current practices regarding state-national relations. We need not go into great detail on this matter to realize that Madison’s views cannot conceivably be construed to embrace the virtual abrogation of the federal principle through the Court’s unilateral interpretation of the Fourteenth Amendment, which has deprived the states of authority over concerns that had long been regarded as well within their domain. To put this matter in its starkest terms, our present situation represents a violation of one of Madison’s most fundamental political principles. In addition to its judicial function, which the Court exercises when it declares state laws, practices, or actions unconstitutional, it has, to an alarming degree, assumed the legislative function by fashioning remedies for the states’ presumed “shortcomings.” Hence, in Madison’s terms, what we are witnessing is a judicial tyranny, a tyranny in which no regard is shown for either the substantive or procedural concerns evident in Madison’s thinking.
Madison’s views on federalism also help us to understand why the Court’s behavior in recent decades is causing unrest and tensions in American society; namely, its intrusions into the states’ domain simply are not in accord with “predominant sense of the nation.” Rather, they bear all the earmarks of being the product of an ideology. Put another way, it is difficult to believe that the substance of the major decisions of the Court in recent decades—e.g., those relating to prayer, busing, and abortion—would ever have been enacted into law. But, above all, this situation illustrates the unsettling and even disastrous consequences that flow from a doctrinaire approach—one that necessarily eschews consensual processes because it holds to the fiction that the answers are to be “discovered” in the Constitution.
Madison, we should note by way of concluding, understandably perceived the dangers to his system of divided sovereignty residing in a change in the state of mind of the common constituents concerning state-national relations—a change that would manifest itself in Congress and eventually result in greater consolidation. The situation today is quite different: because of the Fourteenth Amendment and the opportunities its language opens up, it is the Court, not the common constituents or Congress, that is the “culprit.” Of course, Madison did not believe the Court would assume such a role. In his estimation “whatever may be the latitude of Jurisdiction assumed by the Judicial Power of the U.S. it is less formidable to the reserved sovereignty of the States than the latitude of power which it has assigned to the National Legislature.” But he was not at a loss about what to do if the Court did play such a role: “Such is the plastic faculty of legislation, that notwithstanding the firm tenure which judges have on their offices, they can by various regulations be kept or reduced within the paths of duty; more especially with the aid of their amenability to the Legislative tribunal in the form of impeachment.” Moreover, as we have pointed out, he thought it unlikely that the Court “would long be indulged in a career of usurpation to the decided opinions and policy of the Legislature.”
That Madison’s solutions today are regarded as nothing less than heretical in some quarters—a fact that helps to account for the helplessness of the political arms to restrict or otherwise control the Court—indicates the extent to which the Constitution, its character and operations, is now conceived of in terms totally foreign to Madison’s. Consequently, what many today conceive of as the problem of federalism—i.e., the gradual erosion of the states’ residual authority—is, in fact, but a manifestation of a more basic problem that concerns the character of the regime established by the Constitution.