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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TO EDWARD EVERETT.
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 | The writings of James Madison, |  |
TO EDWARD EVERETT.[113]
Dr. Sir—I have duly recd. your letter in wch. you refer
to the "nullifying doctrine," advocated as a constitutional
right by some of our distinguished fellow citizens; and to the
proceedings of the Virga. Legislature in 98 & 99, as appealed
to in behalf of that doctrine; and you express a wish for
my ideas on those subjects.[114]
I am aware of the delicacy of the task in some respects; and
the difficulty in every respect of doing full justice to it. But
having in more than one instance complied with a like request
from other friendly quarters, I do not decline a sketch of the
views which I have been led to take of the doctrine in question,
as well as some others connected with them; and of the grounds
from which it appears that the proceedings of Virginia have
been misconceived by those who have appealed to them. In
order to understand the true character of the Constitution of
the U. S. the error, not uncommon, must be avoided, of
viewing it through the medium either of a consolidated Government
or of a confederated Govt. whilst, it is neither the one
nor the other, but a mixture of both. And having in no model
Govt it must more than any other be its own interpreter,
according to its text & the facts of the case.
From these it will be seen that the characteristic peculiarities
of the Constitution are 1. The mode of its formation, 2. The
division of the supreme powers of Govt. between the States
in their united capacity and the States in their individual
capacities.
It was formed, not by the Governments of the component
States, as the Federal Govt. for which it was substituted
was formed; nor was it formed by a majority of the people of
the U. S. as a single community in the manner of a consolidated
Government.386
It was formed by the States—that is by the people in each
of the States, acting in their highest sovereign capacity; and
formed, consequently by the same authority which formed
the State Constitutions.Being thus derived from the same source as the Constitutions
of the States, it has within each State, the same authority as
the Constitution of the State; and is as much a Constitution,
in the strict sense of the term, within its prescribed sphere, as
the Constitutions of the States are within their respective
spheres; but with this obvious & essential difference, that
being a compact among the States in their highest sovereign
capacity, and constituting the people thereof one people for
certain purposes, it cannot be altered or annulled at the will of
387the States individually, as the Constitution of a State may be
at its individual will.- And that it divides the supreme powers of Govt. between
the Govt. of the United States, & the Govts. of the individual
States, is stamped on the face of the instrument;
the powers of war and of taxation, of commerce & of treaties,
and other enumerated powers vested in the Govt. of the U. S.
being of as high & sovereign a character as any of the powers
reserved to the State Govts.
1.
2.
Nor is the Govt. of the U. S. created by the Constitution,
less a Govt. in the strict sense of the term, within the sphere
of its powers, than the Govts. created by the constitutions of
the States are within their several spheres. It is like them
It operates like them, directly on persons & things.
And, like them, it has at command a physical force for executing
the powers committed to it. The concurrent operation
in certain cases is one of the features marking the peculiarity
of the system.
Between these different constitutional Govts.—the one
operating in all the States, the others operating separately in
each, with the aggregate powers of Govt. divided between
them, it could not escape attention that controversies would
arise concerning the boundaries of jurisdiction; and that some
system that does not provide for a peaceable & authoritative
termination of occurring controversies, would not be more than
the shadow of a Govt.; the object & end of a real Govt.
being the substitution of law & order for uncertainty confusion,
and violence.
That to have left a final decision in such cases to each of the
States, then 13 & already 24, could not fail to make the Constn.
& laws of the U. S. different in different States was obvious;
decisions, must altogether distract the Govt. of the Union &
speedily put an end to the Union itself. A uniform authority
of the laws, is in itself a vital principle. Some of the most
important laws could not be partially executed. They must
be executed in all the States or they could be duly executed
in none. An impost or an excise, for example, if not in force
in some States, would be defeated in others. It is well
known that this was among the lessons of experience wch.
had a primary influence in bringing about the existing Constitution.
A loss of its general authy. would moreover revive
the exasperating questions between the States holding ports
for foreign commerce and the adjoining States without
carrying on their foreign commerce through other States.
To have made the decisions under the authority of the individual
States, co-ordinate in all cases with decisions under the
authority of the U. S. would unavoidably produce collisions
incompatible with the peace of society, & with that regular
& efficient administration which is the essence of free Govts.
Scenes could not be avoided in which a ministerial officer of
the U. S. and the correspondent officer of an individual State,
would have rencounters in executing conflicting decrees, the
local posse attending them, and that a casualty depending
on the political opinions and party feelings in different States.
To have referred every clashing decision under the two
authorities for a final decision to the States as parties to the
Constitution, would be attended with delays, with inconveniences,
and with expenses amounting to a prohibition of
the expedient, not to mention its tendency to impair the
salutary veneration for a system requiring such frequent
interpositions, nor the delicate questions which might present
themselves as to the form of stating the appeal, and as to the
Quorum for deciding it.
To have trusted to negociation, for adjusting disputes
between the Govt. of the U.S. and the State Govts. as between
independent & separate sovereignties, would have lost sight
altogether of a Constitution & Govt. for the Union; and opened
a direct road from a failure of that resort, to the ultima ratio
between nations wholly independent of and alien to each other.
If the idea had its origin in the process of adjustment between
separate branches of the same Govt. the analogy entirely fails.
In the case of disputes between independent parts of the same
Govt. neither part being able to consummate its will, nor
the Gov. to proceed without a concurrence of the parts,
a State Govt. and the Govt. of the U. States the case
is practically as well as theoretically different; each party possessing
all the Departments of an organized Govt. Legisl.
Ex. & Judiciary; and having each a physical force to support
its pretensions. Although the issue of negociation might sometimes
avoid this extremity, how often would it happen among
so many States, that an unaccommodating spirit in some
would render that resource unavailing? A contrary supposition
would not accord with a knowledge of human nature
or the evidence of our own political history.
The Constitution, not relying on any of the preceding modifications
for its safe & successful operation, has expressly
declared on the one hand; 1. "That the Constitution, and
the laws made in pursuance thereof, and all Treaties made under
the authority of the U.S. shall be the supreme law of the
land; 2. That the judges of every State shall be bound
thereby, anything in the Constn or laws of any State to the contrary
notwithstanding; 3. That the judicial power of the U.S.
shall extend to all cases in law & equity arising under the
Constitution, the laws of the U. S. and Treaties made under
their authority &c."
On the other hand, as a security of the rights & powers of
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 & people of
the States. 2. The responsibility of the President to the
people of the U. States; & 3. The liability of the Ex. and
Judiciary functionaries of the U. S. to impeachment by the
Representatives of the people of the States, in one branch of
the Legislature of the U. S. and trial by the Representatives
of the States, in the other branch; the State functionaries,
Legislative, Executive, & judiciary, being at the same time
in their appointment & responsibility, altogether independent
of the agency or authority of the U. States.
How far this structure of the Govt. of the U. S. be adequate
& safe for its objects, time alone can absolutely determine.
Experience seems to have shown that whatever may grow
out of future stages of our national career, there is as yet a
sufficient controul in the popular will over the Executive
& Legislative Departments of the Govt. When the Alien &
feelings of the community, the first elections that ensued
put an end to them. And whatever may have been the
character of other acts in the judgment of many of us, it is
but true that they have generally accorded with the views of a
majority of the States and of the people. At the present day
it seems well understood that the laws which have created
most dissatisfaction have had a like sanction without doors;
and that whether continued varied or repealed, a like proof will
be given of the sympathy & responsibility of the Representative
Body to the Constituent Body. Indeed, the great complaint
now is, not against the want of this sympathy and
responsibility, but against the results of them in the legislative
policy of the nation.
With respect to the Judicial power of the U. S. and the
authority of the Supreme Court in relation to the boundary
of jurisdiction between the Federal & the State Govts. I may
be permitted to refer to the [thirty-ninth] number of the
"Federalist" for the light in which the subject was regarded
by its writer, at the period when the Constitution was depending;
and it is believed that the same was the prevailing view
then taken of it, that the same view has continued to prevail,
and that it does so at this time notwithstanding the eminent
exceptions to it.
But it is perfectly consistent with the concession of this
power to the Supreme Court, in cases falling within the course
of its functions, to maintain that the power has not always been
rightly exercised. To say nothing of the period, happily a
short one, when judges in their seats did not abstain from
intemperate & party harangues, equally at variance with their
duty and their dignity, there have been occasional decisions
from the Bench which have incurred serious & extensive
disapprobation. Still it would seem that, with but few exceptions,
the course of the judiciary has been hitherto sustained
by the predominant sense of the nation.
Those who have denied or doubted the supremacy of the
power in a State, seem not to have sufficiently adverted
to the utter inefficiency of a supremacy in a law of the
land, without a supremacy in the exposition & execution of
the law; nor to the destruction of all equipoise between the
Federal Govt. and the State governments, if, whilst the functionaries
of the Fedl. Govt. are directly or indirectly elected by
and responsible to the States & the functionaries of the States
are in their appointments & responsibility wholly independent
of the U. S. no constitutional control of any sort belonged
to the U. S. over the States. Under such an organization it
is evident that it would be in the power of the States individually,
to pass unauthorized laws, and to carry them into complete
effect, anything in the Constn. and laws of the U. S.
to the contrary notwithstanding. This would be a nullifying
power in its plenary character; and whether it had its final effect,
thro the Legislative Ex. or Judiciary organ of the State,
would be equally fatal to the constitutional relation between
the two Govts.
Should the provisions of the Constitution as here reviewed
be found not to secure the Govt. & rights of the States agst.
usurpations & abuses on the part of the U. S. the final resort
within the purview of the Constn. lies in an amendment
of the Constn. according to a process applicable by the States.
And in the event of a failure of every constitutional resort,
and an accumulation of usurpations & abuses, rendering
passive obedience & non-resistence a greater evil, than resistence
& revolution, there can remain but one resort, the
last of all, an appeal from the cancelled obligations of the
constitutional compact, to original rights & the law of self-preservation.
This is the ultima ratio under all Govt.
whether consolidated, confederated, or a compound of both;
and it cannot be doubted that a single member of the Union,
in the extremity supposed, but in that only would have a right,
as an extra & ultra constitutional right, to make the appeal.
This brings us to the expedient lately advanced, which
power by the Govt. of the U. S. decided by the State to be
unconstitutional, to the parties of the Const. compact; the
decision of the State to have the effect of nullifying the act of
the Govt. of the U. S. unless the decision of the State be reversed
by three-fourths of the parties.
The distinguished names & high authorities which appear
to have asserted and given a practical scope to this doctrine,
entitle it to a respect which it might be difficult otherwise to
feel for it.
If the doctrine were to be understood as requiring the three-fourths
of the States to sustain, instead of that proportion to
reverse, the decision of the appealing State, the decision to be
without effect during the appeal, it wd. be sufficient to remark,
that this extra constl. course might well give way
to that marked out by the Const. which authorizes 2/3 of the
States to institute and 3/4 to effectuate, an amendment of the
Constn. establishing a permanent rule of the highest authy
in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports
that the decision of the State is to be presumed valid, and that
it overrules the law of the U. S. unless overuled by 3/4 of the
States.
Can more be necessary to demonstrate the inadmissibility
of such a doctrine than that it puts it in the power of the
smallest fraction over 1/4 of the U. S.—that is, of 7 States out
of 24—to give the law and even the Constn. to 17 States,
each of the 17 having as parties to the Constn. an equal
right with each of the 7 to expound it & to insist on the exposition.
That the 7 might, in particular instances be right
and the 17 wrong, is more than possible. But to establish a
positive & permanent rule giving such a power to such a
minority over such a majority, would overturn the first principle
of free Govt. and in practice necessarily overturn the Govt.
itself.
It is to be recollected that the Constitution was proposed
by the States as a whole, it being a part of the Constitution
that not less than 3/4 of the States should be competent to make
any alteration in what had been unanimously agreed to.
So great is the caution on this point, that in two cases when
peculiar interests were at stake, a proportion even of 3/4 is
distrusted, and unanimity required to make an alteration.
When the Constitution was adopted as a whole, it is certain
that there were many parts which if separately proposed,
would have been promptly rejected. It is far from impossible,
that every part of the Constitution might be rejected by a
majority, and yet, taken together as a whole be unanimously
accepted. Free constitutions will rarely if ever be formed
without reciprocal concessions; without articles conditioned
on & balancing each other. Is there a constitution of a
single State out of the 24 that wd. bear the experiment of having
its component parts submitted to the people & separately
decided on?
What the fate of the Constitution of the U. S. would be if
a small proportion of States could expunge parts of it particularly
valued by a large majority, can have but one answer.
The difficulty is not removed by limiting the doctrine to
cases of construction. How many cases of that sort, involving
cardinal provisions of the Constitution, have occurred? How
many now exist? How many may hereafter spring up?
How many might be ingeniously created, if entitled to the
privilege of a decision in the mode proposed?
Is it certain that the principle of that mode wd. not reach
farther than is contemplated. If a single State can of right
require 3/4 of its co-States to overrule its exposition of the
Constitution, because that proportion is authorized to amend
it, would the plea be less plausible that, as the Constitution
was unanimously established, it ought to be unanimously
expounded?
The reply to all such suggestions seems to be unavoidable
and irresistible, that the Constitution is a compact; that its
it, making a part of the compact; and that none of the parties
can rightfully renounce the expounding provision more
than any other part. When such a right accrues, as it may
accrue, it must grow out of abuses of the compact releasing the
sufferers from their fealty to it.
In favour of the nullifying claim for the States individually,
it appears, as you observe, that the proceedings of the Legislature
of Virga. in 98 & 99 agst. the Alien and Sedition Acts
are much dwelt upon.
It may often happen, as experience proves, that erroneous
constructions, not anticipated, may not be sufficiently guarded
against in the language used; and it is due to the distinguished
individuals who have misconceived the intention of those
proceedings to suppose that the meaning of the Legislature,
though well comprehended at the time, may not now be
obvious to those unacquainted with the cotemporary indications
and impressions.
But it is believed that by keeping in view the distinction between
the Govt. of the States & the States in the sense in
which they were parties to the Constn.; between the rights of
the parties, in their concurrent and in their individual capacities;
between the several modes and objects of interposition
agst. the abuses of power, and especially between interpositions
within the purview of the Constn. & interpositions appealing
from the Constn. to the rights of nature paramount to all
Constitutions; with these distinctions kept in view, and an
attention, always of explantory use, to the views & arguments
which were combated, a confidence is felt, that the Resolutions
of Virginia, as vindicated in the Report on them, will be found
entitled to an exposition, showing a consistency in their parts
and an inconsistency of the whole with the doctrine under
consideration.
That the Legislature cd. not have intended to sanction
such a doctrine is to be inferred from the debates in the House
of Delegates, and from the address of the two Houses to their
the debates wch. were ably conducted and are understood to
have been revised for the press by most, if not all, of the speakers,
discloses no reference whatever to a constitutional right in
an individual State to arrest by force the operation of a law of
the U. S. Concert among the States for redress against the
alien & sedition laws, as acts of usurped power, was a leading
sentiment, and the attainment of a concert the immediate
object of the course adopted by the Legislature, which was
that of inviting the other States "to concur in declaring the
acts to be unconstitutional, and to co-operate by the necessary
& proper measures in maintaining unimpaired the authorities
rights & liberties reserved to the States respectively & to
the people." That by the necessary and proper measures
to be concurrently and co-operatively taken, were meant measures
known to the Constitution, particularly the ordinary
controul of the people and Legislatures of the States over
the Govt. of the U. S. cannot be doubted; and the interposition
of this controul as the event showed was equal
to the occasion.
It is worthy of remark, and explanatory of the intentions of
the Legislature, that the words "not law, but utterly null,
void, and of no force or effect," which had followed, in one of
the Resolutions, the word "unconstitutional," were struck
out by common consent. Tho the words were in fact but
synonymous with "unconstitutional," yet to guard against
a misunderstanding of this phrase as more than declaratory
of opinion, the word unconstitutional alone was retained, as
not liable to that danger.
The published address of the Legislature to the people their
constituents affords another conclusive evidence of its views.
The address warns them against the encroaching spirit of the
Genl. Govt., argues the unconstitutionality of the alien &
sedition acts, points to other instances in which the constl.
limits had been overleaped; dwells upon the dangerous mode
of deriving power by implications; and in general presses the
the Fedl. policy. But nothing is sd. that can be understood
to look to means of maintaining the rights of the States
beyond the regular ones within the forms of the Constn.
If any farther lights on the subject cd. be needed, a very
strong one is reflected in the answers to the Resolutions by the
States which protested agst. them. The main objection to
these, beyond a few general complaints agst. the inflammatory
tendency of the resolutions was directed agst. the assumed
authy. of a State Legisle. to declare a law of the U. S. unconstitutional,
which they pronounced an unwarrantable interference
with the exclusive jurisdiction of the Supreme Ct.
of the U. S. Had the resolns. been regarded as avowing &
maintaining a right in an indivl. State, to arrest by force the
execution of a law of the U. S. it must be presumed that it
wd have been a conspicuous object of their denunciation.
This letter was printed by Edward Everett in the North American
Review, for October, 1830, vol. 31, p. 537.
Having received a copy of Senator Robert Y. Hayne's speeches on
the constitution which began January 19, 1830, Madison wrote to him,
the draft being dated "Apr. (say 3d or 4th)":
"I recd. in due time your favor enclosing your two late speeches, and
requesting my views of the subject they discuss. The speeches could
not be read without leaving a strong impression of the ability & eloquence
which have justly called forth the eulogies of the public.
But there are doctrines espoused in them from which I am constrained
to dissent. I allude particularly to the doctrine which I understand
to assert that the States perhaps their Governments have, singly, a
constitutional right to resist & by force annul within itself acts of the
Government of the U. S. which it deems unauthorized by the Constitution
of the U. S.; although such acts be not within the extreme cases
of oppression, which justly absolve the State from the Constitutional
compact to which it is a party.
"It appears to me that in deciding on the character of the Constitution
of the U. S. it is not sufficiently kept in view that being an unprecedented
modification of the powers of Govt. it must not be looked
at thro' the refracting medium either of a consolidated Government,
or of a confederated Govt; that being essentially different from both, it
must be its own interpreter according to its text and the facts of the
case.
"Its characteristic peculiarities are 1. the mode of its formation.
2. its division of the supreme powers of Gov.t between the States in
their united capacity, and the States in their individual capacities.
"1. It was formed not by the Governments of the States as the
Federal Government superseded by it was formed; nor by a majority of
the people of the U. S. as a single Community, in the manner of a
consolidated Government.
"It was formed by the States, that is by the people of each State,
acting in their highest sovereign capacity thro' Conventions representing
them in that capacity, in like manner and by the same authority as the
State Constitutions were formed; with this characteristic & essential
difference that the Constitution of the U. S. being a compact among
the States that is the people thereof making them the parties to the
compact over one people for specified objects can not be revoked or
changed at the will of any State within its limits as the Constitution
of a State may be changed at the will of the State, that is the people
who compose the State & are the parties to its constitution & retained
their powers over it. The idea of a compact between the Governors
& the Governed was exploded with the Royal doctrine that Government
was held by some tenure independent of the people.
"The Constitution of the U. S. is therefore within its prescribed
sphere a Constitution in as strict a sense of the term as are the Constitutions
of the individual States, within their respective spheres.
"2. And that it divides the supreme powers of Govt. between the
two Governments is seen on the face of it; the powers of war & taxation,
that is of the sword & the purse, of commerce of treaties &c.
vested in the Govt. of the U. S. being of as high a character as any
of the powers reserved to the State Govts.
"If we advert to the Govt. of the U. S. as created by the Constitution
it is found also to be a Govt. in as strict a sense of the term, within
the sphere of its powers, as the Govts. created by the Constitutions of
the States are within their respective spheres. It is like them organized
into a Legislative, Executive & Judicial Dept. It has, like them,
acknowledged cases in which the powers of those Departments are to
operate and the operation is to be the same in both; that is directly
on the persons & things submitted to their power. The concurrent
operation in certain cases is one of the features constituting the
peculiarity of the system.
"Between these two Constitutional Govts., the one operating in all
the States, the others operating in each respectively; with the aggregate
powers of Govt. divided between them, it could not escape attention,
that controversies concerning the boundary of Jurisdiction would
arise, and that without some adequate provision for deciding them,
conflicts of physical force might ensue. A political system that does
not provide for a peaceable & authoritative termination of occurring
controversies, can be but the name & shadow of a Govt. the very
object and end of a real Govt. being the substitution of law & order for
uncertainty confusion & violence.
"That a final decision of such controversies, if left to each of 13 State
now 24 with a prospective increase, would make the Constitution & laws
of the U. S. different in different States, was obvious; and equally obvious
that this diversity of independent decisions must disorganize the
the Government of the Union, and even decompose the Union itself.
"Against such fatal consequences the Constitution undertakes to
guard 1. by declaring that the Constitution & laws of the States in
their united capacity shall have effect, anything in the Constitution
or laws of any State in its individual capacity to the contrary notwithstanding,
by giving to the Judicial authority of the U. S. an
appellate supremacy in all cases arising under the Constitution; &
within the course of its functions, arrangements supposed to be justified
by the necessity of the case; and by the agency of the people &
Legislatures of the States in electing & appointing the Functionaries of
the Common Govt. whilst no corresponding relation existed between
the latter and the Functionaries of the States.
"2. Should these provisions be found notwithstanding the responsibility
of the functionaries of the Govt. of the U. S. to the Legislatures
& people of the States not to secure the State Govts. against
usurpations of the Govt. of the United States there remains within
the purview of the Constn. an impeachment of the Executive & Judicial
Functionaries, in case of their participation in the guilt, the
prosecution to depend on the Representatives of the people in one
branch, and the trial on the Representatives of the States in the other
branch of the Govt. of the U. S.
"3. The last resort within the purview of the Constn. is the process
of amendment provided for by itself and to be executed by the States.
"Whether these provisions taken together be the best that might
have been made; and if not, what are the improvements, that ought
to be introduced, are questions altogether distinct from the object
presented by your communication, which relates to the Constitution
as it stands.
"In the event of a failure of all these Constitutional resorts against
usurpations and abuses of power and of an accumulation thereof rendering
passive obedience & nonresistance a greater evil than resistance and
revolution, there can remain but one resort, the last of all, the appeal
from the cancelled obligation of the Constitutional compact to original
rights and the law of self-preservation. This is the Ultima ratio, under
all Governments, whether consolidated, confederated, or partaking
of both those characters. Nor can it be doubted that in such an
extremity a single State would have a right, tho' it would be a natural
not a constitutional Right to make the appeal. The same may be said
indeed of particular portions of any political community whatever so
oppressed as to be driven to a choice between the alternative evils.
"The proceedings of the Virginia Legislature (occasioned by the
Alien and Sedition Acts) in which I had a participation, have been
understood it appears, as asserting a Constitutional right in a single
State to nullify laws of the U. S. that is to resist and prevent by force
the execution of them, within the State.
"It is due to the distinguished names who have given that construction
of the Resolutions and the Report on them to suppose that the
meaning of the Legislature though expressed with a discrimination and
fulness sufficient at the time may have been somewhat obscured by an
oblivion of contemporary indications and impressions. But it is believed
that by keeping in view distinctions (an inattention to which
is often observable in the ablest discussions of the subjects embraced in
those proceedings) between the Governments of the States & the
States in the sense in which they were parties to the Constitution;
between the several modes and objects of interposition agst. the abuses
of Power; and more especially between interpositions within the
purview of the Constitution, and interpositions appealing from the
Constitution to the rights of nature, paramount to all Constitutions;
with these distinctions kept in view, and an attention always of explanatory
use to the views and arguments which are combated, a
confidence is felt that the Resolutions of Virga. as vindicated in the
Report on them, are entitled to an exposition shewing a consistency
in their parts, and an inconsistency of the whole with the doctrine
under consideration.
"On recurring to the printed Debates in the House of Delegates
on the occasion, which were ably conducted, and are understood to
have been, for the most part at least, revised by the Speakers, the tenor
of them does not disclose any reference to a constitutional right in an
individual State to arrest by force the operation of a law of the U. S.
Concert among the States for redress agst. the Alien & Sedition laws
as acts of usurped power, was a leading sentiment, and the attainment
of a Concert the immediate object of the course adopted, which was an
invitation to the other States 'to concur in declaring the acts to be
unconstitutional, and to co-operate by the necessary & proper measures
in maintaining unimpaired the authorities rights and liberties reserved
to the States respectively or to the people.' That by the
necessary & proper measures to be concurrently & co-operatively
taken were meant measures known to the Constitution, particularly
the control of the Legislatures and people of the States over the Cong.
of the U. S. cannot well be doubted.
"It is worthy of remark, and explanatory of the intentions of the
Legislature, that the words 'and not law, but utterly null void & of no
power or effect'[115]
which in the Resolutions before the House followed
the word unconstitutional, were near the close of the debate stricken
out by common consent. It appears that the words had been regarded
as only surplusage by the friends of the Resolution; but lest they should
be misconstrued into a nullifying import instead of a declaration of
opinion, the word unconstitutional alone was retained, as more safe
agst. that error. The term nullification to which such an important
meaning is now attached, was never a part of the Resolutions and
appears not to have been contained in the Kentucky Resolutions as
originally passed, but to have been introduced at an after date.
"Another and still more conclusive evidence of the intentions of the
Legislature is given in their Address to their Constituents accompanyg.
the publication of their Resoln. The address warns them agst. the
encroaching spirit of the Gen. Govt.; argues the unconstitutionality
of the Alien & Sedition laws; enumerates the other instances in which
the Constitutional limits had been overleaped; dwells on the dangerous
mode of deriving power by implication; and in general presses the
necessity of watching over the consolidating tendency of the Fedr.
policy. But nothing is said that can be understood to look to means
of maintaing. the rights of the States beyond the regular ones within
the forms of the Constitution.
"If any further lights on the subject could be needed a very strong one
is reflected from the answers given to the Resolutions by the States
who protested agst. them. Their great objection, with a few undefined
complaints of the spirit & character of the Resolutions, was directed
agst. the assumed authority of a State Legislature to declare a law of
the U. S. to be unconstitutional which they considered an unwarrantable
interference with the exclusive jurisdiction of the Supreme Court
of the U. S. Had the Resolutions been regarded as avowing & maintaining
a right in an individual State to arrest by force the execution
of a law of the U. S. it must be presumed that it would have been
a pointed and conspicuous object of their denunciation.
"In this review I have not noticed the idea entertained by some
that disputes between the Govt. of the U. S. and those of the individual
States may & must be adjusted by negotiation, as between independent
Powers.
"Such a mode as the only one of deciding such disputes would seem
to be as expressly at variance with the language and provisions of the
Constitution, as in a practical view it is pregnant with consequences
subversive of the Constitution. It may have originated in a supposed
analogy to the negociating process in cases of disputes between separate
branches or Departments of the same Govt. but the analogy does not
exist. In the case of disputes between independent parts of the
same Govt. neither of them being able to consummate its pretensions,
nor the Govt. to proceed without a co-operation of the several parts
necessity brings about an adjustment. In disputes between a State
Govt. and the Govt. of the U. S. the case is both theoretically & practically
different; each party possessing all the Departments of an
organized Governmt. Legislative Ex. & Judl.; and having each a
physical force at command.
"This idea of an absolute separation & independence between the
Govt. of the U. S. and the State Govts. as if they belonged to different
nations alien to each other has too often tainted the reasoning applied
to Constitutional questions. Another idea not less unsound and
sometimes presenting itself is, that a cession of any part of the rights
of sovereignty is inconsistent with the nature of sovereignty, or at
least a degradation of it. This would certainly be the case if the
cession was not both mutual & equal, but when there is both mutuality
& equality there is no real sacrifice on either side, each gaining as much
as it grants, and the only point to be considered is the expediency of the
compact and that to be sure is a point that ought to be well considered.
On this principle it is that Treaties are admissible between Independent
powers, wholly alien to each other, although privileges may be granted
by each of the parties at the expense of its internal jurisdiction. On
the same principle it is that individuals entering into the social State
surrender a portion of their equal rights as men. If a part only made
the surrender, it would be a degradation; but the surrenders being
mutual, and each gaining as much authority over others as is granted
to others over him, the inference is mathematical that in theory
nothing is lost by any; however different the result may be in practice.
"I am now brought to the proposal which claims for the States
respectively a right to appeal agst. an exercise of power by the Govt.
of the U. S. which by the States is decided to be unconstitutional, to a
final decision by 3/4 of the parties to the Constitution. With every
disposition to take the most favorable view of this expedient that a
high respect for its Patrons could prompt I am compelled to say that it
appears to be either not necessary or inadmissible.
"I take for granted it is not meant that pending the appeal the offensive
law of the U. S. is to be suspended within the State. Such an
effect would necessarily arrest its operation everywhere, a uniformity in
the operation of laws of the U. S. being indispensable not only in a Constitutional
and equitable, but in most cases in a practicable point of
view, and a final decision adverse to that of the Appellant State would
afford grounds to all kinds of complaint which need not be traced.
"But aside from those considerations, it is to be observed that the
effect of the appeal will depend wholly on the form in which the case
is proposed to the Tribunal which is to decide it.
"If 3/4 of the States can sustain the State in its decision it would
seem that this extra constitutional course of proceeding might well be
spared; inasmuch as 2/3 can institute and 3/4 can effectuate an amendment
of the Constitution, which would establish a permanent rule of the
highest authority, instead of a precedent of construction only.
"If on the other hand 1/4 are required to reverse the decision of the
State it will then be in the power of the smallest fraction over 1/4 (of 7
States for example out of 24) to give the law to 17 States, each of the
17 having as parties to the Constitutional compact an equal right
with each of the 7 to expound & insist on its exposition. That the
7 might in particular cases be right and the 17 wrong, is quite possible.
But to establish a positive & permanent rule giving such a power to
such a minority, over such a majority, would overturn the first principle
of a free Government and in practice could not fail to overturn the
Govt. itself.
"It must be recollected that the Constitution was proposed to the
people of the States as a whole, and unanimously adopted as a whole,
it being a part of the Constitution that not less than 3/4 should be competent
to make any alteration in what had been unanimously agreed to.
So great is the caution on this point, that in two cases where peculiar
interests were at stake a majority even of 3/4 are distrusted and a unanimity
required to make any change affecting those cases.
"When the Constitution was adopted as a whole, it is certain that
there are many of its parts which if proposed by themselves would have
been promptly rejected. It is far from impossible that every part of a
whole would be rejected by a majority and yet the whole be unanimously
accepted. Constitutions will rarely, probably never be formed
without mutual concessions, without articles conditioned on & balancing
each other. Is there a Constitution of a single State out of the
24 that would bear the experiment of having its component parts
Submitted to the people separately, and decided on according to their
insulated merits.
"What the fate of the Constitution of the U. S. would be if a few
States could expunge parts of it most valued by the great majority,
and without which the great majority would never have agreed to it,
can have but one answer.
"The difficulty is not removed by limiting the process to cases of construction.
How many cases of that sort involving vital texts of the
Constitution, have occurred? how many now exist? How many
may hereafter spring up? How many might be plausibly enacted,
if entitled to the privilege of a decision in the mode proposed.
"Is it certain that the principle of that mode may not reach much
farther than is contemplated? If a single State can of right require
3/4 of its Co-States to overrule its exposition of the Constitution, because
that proportion is authorized to amend it, is the plea less plausible
that as the Constitution was unanimously formed it ought to be unanimously
expounded.
"The reply to all such suggestions must be that the Constitution is a
compact; that its text is to be expounded according to the provision
for it making part of that Compact; and that none of the parties
can rightfully violate the expounding provision, more than any other
part. When such a right accrues as may be the case, it must grow out
of abuses of the Constitution amounting to a release of the sufferers
from their allegiance to it.
"Will you permit me Sir to refer you to Nos. 39 & 44 of the Federalist
Edited at Washington by Gideon, which will shew the views taken on
some points of the Constitution at the period of its adoption. I refer
to that Edition because none preceding it are without errors in the
names prefixed to the several papers as happens to be the case in No.
51 for which you suppose Col: Hamilton to be responsible. The errors
were occasioned by a memorandum of his penned probably in haste,
& partly in a lumping way. It need not be remarked that they were
pure inadvertences.
"I fear Sir I have written you a letter the length of which may
accord as little with your patience, as I am sorry to foresee that the
scope of parts of it must do with your judgment. But a naked opinion
did not appear respectful either to the subject or to the request with
which you honored me, and notwithstanding the latitude given to my
pen, I am not unaware that the views it presents may need more of
development in some instances, if not more exactness of discrimination
in others, than I could bestow on them. The subject has been so expanded
and recd. such ramifications & refinements, that a full survey
of it is a task agst. which my age alone might justly warn me.
"The delay Sir in making the acknowledgments I owe you was
occasioned, for a time by a crowd of objects which awaited my return
from a long absence at Richmond, and latterly by an indisposition
from which I am not yet entirely recovered. I hope you will be good
eno' to accept these apologies, and with them assurances of my high
esteem & my cordial salutations, in which Mrs. M. begs to be united
with me, as I do with her in a respectful tender of them to Mrs. Hayne."
—Chic. Hist. Soc. MSS.
August 20, 1830, Madison wrote to Everett:
"There is not I am persuaded the slightest ground for supposing
that Mr. Jefferson departed from his purpose not to furnish Kentucky
with a set of Resolutions for the year '99. It is certain that he penned
the Resolutions of '98, and, probably in the terms in which they
passed. It was in those of '99 that the word 'nullification' appears.
"Finding among my pamphlets a copy of the debates in the Virginia
House of Delegates on the Resolutions of '98, and one of an address
of the two Houses to their constituents on the occasion, I enclose them
for your perusal; and I add another, though it is less likely to be new
to you, the 'Report of a Committee of the S. Carolina House of Representatives,
Decr. 9, 1828, in which the nullifying doctrine is stated
in the precise form in which it is now asserted. There was a protest
by the minority in the Virginia Legislature of '98 against the Resolutions,
but I have no copy. The matter of it may be inferred from
the speeches in the Debates. I was not a member in that year, though
the penman of the Resolutions, as now supposed."—Mad. MSS.
Again on September 10, 1830, he wrote to Everett:
"Since my letter in which I expressed a belief that there was no
ground for supposing that the Kentucky Resolutions of 1799, in which
the term 'nullification' appears, were drawn by Mr. Jefferson, I infer
from a manuscript paper containing the term just noticed, that
altho he probably had no agency in the draft, nor even any knowledge
of it at the time, yet that the term was borrowed from that
source. It may not be safe, therefore, to rely on his to Mr. W. C.
Nicholas printed in his Memoir & Correspondence, as a proof that
he had no connection with or responsibility for the use of such term
on such an occasion. Still I believe that he did not attach to it the idea
of a constitutional right in the sense of S. Carolina, but that of a
natural one in cases justly appealing to it."—Mad. MSS.
On September 23, 1830, he wrote to Nicholas P. Trist:
"In a letter, lately noticed, from Mr. Jefferson, dated November
17 1799, he 'incloses me a copy of the draught of the Kentucky Resolves', (a
press copy of his own manuscript). Not a word of explanation is
mentioned. It was probably sent, and possibly at my request, in consequence
of my being a member elect of the Virga Legislature of 1799,
which would have to vindicate its contemporary Resolns. of –98.
It is remarkable that the paper differs both from the Kentucky Resolutions
of –98, & from those of –99. It agrees with the former in the
main and must have been the pattern of the Resolns. of that year, but
contains passages omitted in them, which employ the terms nullification
& nullifying; and it differs in the quantity of matter from the
Resolutions of –99, but agrees with them in a passage which employs
that language, and would seem to have been the origin of it. I conjecture
that the correspondent in Kentucky, Col. George Nicholas,
probably might think it better to leave out particular parts of the
draught than risk a misconstruction or misapplication of them; and
that the paper might, notwithstanding, be within the reach & use of
the Legislature of –99, & furnish the phraseology containing the term
'nullification,' Whether Mr. Jefferson had noted the difference between
his draught & the Resolns. of –98 (he could not have seen
those of –99, which passed Novr. 14,) does not appear. His files,
particularly his correspondence with Kentucky, must throw light on the
whole subject. This aspect of the case seems to favor a recall of the
communication if practicable. Though it be true that Mr. Jefferson
did not draught the Resolutions of –99, yet a denial of it, simply, might
imply more than Wd. be consistent with a knowledge of what is here
stated."—Mad. MSS.
See Warfield's Kentucky Resolutions of 1798; also, for Jefferson's
correspondence, his Writings (P. L. Ford, Federal Edition) viii., 57,
et seq.
Whether these words were in the draft from my pen or added
before the Resolutions were introduced by the member who withdrew
them I am not authorized to say, no Copy of the draft having been
retained & memory not to be trusted after such a lapse of time. I
certainly never disapproved the erasure of them.—Madison's Note.
| The writings of James Madison, | |