The writings of James Madison, comprising his public papers and his private correspondence, including numerous letters and documents now for the first time printed. |
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 | The writings of James Madison, |  |
OUTLINE.
The compound Govt of the U. S. is without a model, and to
be explained by itself, not by similitudes or analogies. The
terms Union, Federal, National not to be applied to it without
the qualifications peculiar to the system. The English Govt
is in a great measure sui generis, and the terms Monarchy
used by those who look at the executive head only, and Commonwealth,
by those looking at the representative member
chiefly, are inapplicable in a strict sense.
A fundamental error lies in supposing the State Governments
to be the parties to the Constitutional compact from
which the Govt. of the U. S. results.
It is a like error that makes the General Govt. and the State
governments the parties to the compact, as stated in the 4th.
letter of "Algernon Sidney." [Judge Roane]. They may be
parties in a judicial controversy, but are not so in relation
to the original constitutional compact.
In No. XI of "Retrospects," [by Govr. Giles], in the Richmond
Enquirer of Sept. 8, 1829, Mr. Jefferson is misconstrued,
or rather mistated, as making the State Govts.& the Govt of
the U. S. foreign to each other; the evident meaning, or rather
the express language of Mr. J. being "the States are foreign to
each other, in the portions of sovereignty not granted, as they
were in the entire sovereignty before the grant," and not that
the State Govts. and the Govt. of the U. S. are foreign to each
other. As the State Govts. participate in appointing the
Functionaries of the Genl. Govt. it can no more be said that
they are altogether foreign to each other, than that the
people of a State & its Govt. are foreign.
The real parties to the constl. compact of the U. S. are the
States—that is, the people thereof respectively in their sovereign
character, and they alone, so declared in the Resolutions
of 98, and so explained in the Report of 99. In these Resolutions
as originally proposed, the word alone, wch. guarded
agst. error on this point, was struck out, [see printed debates
of 98] and led to misconceptions & misreasonings concerning
the true character of the pol: system, and to the idea that it
was a compact between the Govts. of the States and the Govt.
of the U. S. an idea promoted by the familiar one applied to
Govts. independent of the people, particularly the British, of
[?] a compact between the monarch & his subjects, pledging
protection on one side & allegiance on the other.
The plain fact of the case is that the Constitution of the
U. S. was created by the people composing the respective
States, who alone had the right; that they organized the
Govt. into Legis. Ex. & Judicy. departs. delegating thereto
certain portions of power to be exercised over the whole, and
reserving the other portions to themselves respectively. As
General Govt. & by the State Govts; by each within limited
spheres; and as of course controversies concerning the boundaries
of their power wd. happen, it was provided that they
should be decided by the Supreme Court of the U. S. so constituted
as to be as impartial as it could be made by the mode
of appointment & responsibility for the Judges.
Is there then no remedy for usurpations in which the Supreme
Ct. of the U. S. concur? Yes: constitutional remedies
such as have been found effectual; particularly in the case of
alien & sedition laws, and such as will in all cases be effectual,
whilst the responsiblity of the Genl. Govt. to its constituents continues:
—Remonstrances & instructions—recurring elections
& impeachments; amendt. of Const. as provided by itself & exemplified
in the 11th article limiting the suability of the States.
These are resources of the States agst. the Genl. Govt.:
resulting from the relations of the States to that Govt.: whilst
no corresponding controul exists in the relations of the Genl.
to the individual Govts. all of whose functionaries are independent
of the United States in their appt. and responsibility.
Finally should all the constitutional remedies fail, and the
usurpations of the Genl. Govt. become so intolerable as absolutely
to forbid a longer passive obedience & non-resistance,
a resort to the original rights of the parties becomes justifiable;
and redress may be sought by shaking off the yoke, as of right,
might be done by part of an individual State in a like case;
or even by a single citizen, could he effect it, if deprived of
rights absolutely essential to his safety & happiness. In the
defect of their ability to resist, the individual citizen may
seek relief in expatriation or voluntary exile[108]
a resort not
within the reach of large portions of the community.
In all the views that may be taken of questions between the
final rupture & dissolution of the Union shd. never for a moment
be lost sight of. Such a prospect must be deprecated,
must be shuddered at by every friend to his country, to liberty,
of the Union, an impossibility of ever renewing it is brought
home to every mind by the difficulties encountered in establishing
it. The propensity of all communities to divide when
understood. There is no instance of a people inhabiting even
a small island, if remote from foreign danger, and sometimes in
spite of that pressure, who are not divided into alien, rival, hostile
Constn. a miracle; their example the hope of Liberty throughout
the world. Woe to the ambition that would meditate
the destruction of either!
See letter to N. P. Trist; and see also the distinction between an
expatriating individual withdrawing only his person and moveable
effects, and the withdrawal of a State mutilating the domain of the
Union.—Madison's Note.
The Virginia Expatriation Act was that of October, 1783, Sec. III.
Hening's Stats, at Large, XI, 325. The letter to Trist was dated February
15, 1830.
It has been too much the case in expounding the Constitution of
the U. S. that its meaning has been sought not in its peculiar and
unprecedented modifications of Power; but by viewing it, some
through the medium of a simple Govt. others thro' that of a mere
League of Govts. It is neither the one nor the other; but essentially
different from both. It must consequently be its own interpreter.
No other Government can furnish a key to its true character. Other
Governments present an individual & indivisible sovereignty. The
Constitution of the U. S. divides the sovereignty; the portions surrendered
by the States, composing the Federal sovereignty over
specified subjects; the portions retained forming the sovereignty of
each over the residuary subjects within its sphere. If sovereignty
cannot be thus divided, the Political System of the United States is a
chimæra, mocking the vain pretensions of human wisdom. If it can
be so divided, the system ought to have a fair opportunity of fulfilling
the wishes & expectations which cling to the experiment.
Nothing can be more clear than that the Constitution of the U. S.
has created a Government, in as strict a sense of the term, as the
Governments of the States created by their respective Constitutions.
The Federal Govt. has like the State govts. its Legislative, its Executive
& its Judiciary Departments. It has, like them, acknowledged
cases in which the powers of these departments are to operate. And
the operation is to be directly on persons & things in the one Govt. as
in the others. If in some cases, the jurisdiction is concurrent as it is
in others exclusive, this is one of the features constituting the peculiarity
of the system.
In forming this compound scheme of Government it was impossible
to lose sight of the question, what was to be done in the event of controversies
which could not fail to occur, concerning the partition line,
between the powers belonging to the Federal and to the State Govts.
That some provision ought to be made, was as obvious and as essential,
as the task itself was difficult and delicate.
That the final decision of such controversies, if left to each of the
13 now 24 members of the Union, must produce a different Constitution
& different laws in the States was certain; and that such differences
must be destructive of the common Govt. & of the Union itself, was
equally certain. The decision of questions between the common agents
of the whole & of the parts, could only proceed from the whole, that
is from a collective not a separate authority of the parts.
The question then presenting itself could only relate to the least
objectionable mode of providing for such occurrences, under the
collective authority.
The provision immediately and ordinarily relied on, is manifestly
the Supreme Court of the U. S., clothed as it is, with a Jurisdiction
"in controversies to which the U. S. shall be a party;" the Court
itself being so constituted as to render it independent & impartial
in its decisions; [see Federalist, No. 39, p. 241] whilst other and ulterior
resorts would remain in the elective process, in the hands of the people
themselves the joint constituents of the parties; and in the provision
made by the Constitution for amending itself. All other resorts are
extra & ultra constitutional, corresponding to the Ultima Ratio of
nations renouncing the ordinary relations of peace.
If the Supreme Court of the U. S. be found or deemed not sufficiently
independent and impartial for the trust committed to it, a better
Tribunal is a desideratum: But whatever this may be, it must necessarily
derive its authority from the whole not from the parts, from the
States in some collective not individual capacity. And as some such
Tribunal is a vital element, a sine qua non, in an efficient & permanent
Govt. the Tribunal existing must be acquiesced in, until a better or
more satisfactory one can be substituted.
Altho' the old idea of a compact between the Govt. & the people
be justly exploded, the idea of a compact among those who are parties
to a Govt. is a fundamental principle of free Govt.
The original compact is the one implied or presumed, but nowhere
reduced to writing, by which a people agree to form one society. The
next is a compact, here for the first time reduced to writing, by which
the people in their social state agree to a Govt. over them. These two
compacts may be considered as blended in the Constitution of the
U. S., which recognises a union or society of States, and makes it the
basis of the Govt. formed by the parties to it.
It is the nature & essence of a compact that it is equally obligatory
on the parties to it, and of course that no one of them can be liberated
therefrom without the consent of the others, or such a violation or
abuse of it by the others, as will amount to a dissolution of the compact.
Applying this view of the subject to a single community, it results,
that the compact being between the individuals composing it, no
individual or set of individuals can at pleasure, break off and set up
for themselves, without such a violation, of the compact as absolves
them from its obligations. It follows at the same time that, in the
event of such a violation, the suffering party rather than longer yield
a passive obedience may justly shake off the yoke, and can only be
restrained from the attempt by a want of physical strength for the
purpose. The case of individuals expatriating themselves, that is
leaving their country in its territorial as well as its social & political
sense, may well be deemed a reasonable privilege, or rather as a right
impliedly reserved. And even in this case equitable conditions have
been annexed to the right which qualify the exercise of it.
Applying a like view of the subject to the case of the U. S. it results,
that the compact being among individuals as imbodied into States,
no State can at pleasure release itself therefrom, and set up for itself.
The compact can only be dissolved by the consent of the other parties,
or by usurpations or abuses of power justly having that effect. It
will hardly be contended that there is anything in the terms or nature
of the compact, authorizing a party to dissolve it at pleasure.
It is indeed inseparable from the nature of a compact, that there
is as much right on one side to expound it & to insist on its fulfilment
according to that exposition, as there is on the other so to expound
it as to furnish a release from it; and that an attempt to annul it by
one of the parties, may present to the other, an option of acquiescing
in the annulment, or of preventing it as the one or the other course may
be deemed the lesser evil. This is a consideration which ought deeply
to impress itself on every patriotic mind, as the strongest dissuasion
from unnecessary approaches to such a crisis. What would be the
condition of the States attached to the Union & its Govt. and regarding
both as essential to their well-being, if a State placed in the midst of
them were to renounce its Federal obligations, and erect itself into an
independent and alien nation? Could the States N. & S. of Virginia,
Pennsyla. or N. York, or of some other States however small, remain
associated and enjoy their present happiness, if geographically politically
and practically thrown apart by such a breach in the chain which
unites their interests and binds them together as neighbours & fellow
citizens. It could not be. The innovation would be fatal to the
Federal Governt. fatal to the Union, and fatal to the hopes of liberty
and humanity; and presents a catastrophe at which all ought to
shudder.
Without identifying the case of the U. S. with that of individual
States, there is at least an instructive analogy between them. What
would be the condition of the State of N. Y. of Massts. or of Pena. for
example, if portions containing their great commercial cities, invoking
original rights as paramount to social & constitutional compacts,
should erect themselves into distinct & absolute sovereignties? In so
doing they would do no more, unless justified by an intolerable oppression,
than would be done by an individual State as a portion of the
Union, in separating itself, without a like cause, from the other portions.
Nor would greater evils be inflicted by such a mutilation
of a State of some of its parts, than might be felt by some of the
States from a separation of its neighbours into absolute and alien
sovereignties.
Even in the case of a mere League between nations absolutely
independent of each other, neither party has a right to dissolve it
at pleasure; each having an equal right to expound its obligations, and
neither, consequently a greater right to pronounce the compact
void than the other has to insist on the mutual execution of it. [See,
in Mr. Jefferson's volumes, his letters to J. M. Mr. Monroe & Col.
Carrington]
Having suffered my pen to take this ramble over a subject engaging
so much of your attention, I will not withhold the notes made by it
from your persual. But being aware that without more development
& precision, they may in some instances be liable to misapprehension or
misconstruction, I will ask the favour of you to return the letter after
it has passed under your partial & confidential eye.
I have made no secret of my surprize and sorrow at the proceedings
in S. Carolina, which are understood to assert a right to annul the Acts
of Congress within the State, & even to secede from the Union itself.
But I am unwilling to enter the political field with the "telum imbelle"
which alone I could wield. The task of combating such unhappy
aberrations belongs to other hands. A man whose years have but
reached the canonical three-score-&-ten (and mine are much beyond
the number) should distrust himself, whether distrusted by his friends
or not, and should never forget that his arguments, whatever they may
be will be answered by allusions to the date of his birth.
With affect. respects,
| The writings of James Madison, | |