James Madison Keeps It Real On Nullification

So this guy named Pete Spiliakos says I haven’t been totally consistent on nullification and interposition.  Now I’d say that nullification and interposition are two different things.  The first is the alleged legal rights of states to suspend the enforcement of any law a state government feels to be unconstitutional within the borders of that state.  The second is the power of the state government to protect their citizens from radical violations of their rights by the federal government.  I know they sound similar, but they could hardly be more different.  I’m part of the cause of the confusion.  Let’s look at what has been said:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, 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 respective limits, the authorities, rights and liberties appertaining to them.  That was me in the Virginia Resolution.

This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may—State-right, veto, nullification, or by any other name—I conceive to be the fundamental principle of our system, resting on facts historically as certain as our revolution itself, and deductions as simple and demonstrative as that of any political, or moral truth whatever; and I firmly believe that on its recognition depend the stability and safety of our political institutions.   That was John Calhoun citing me in his Fort Hill Address.

It has been asked whether every right has not its remedy, and what other remedy exists under the Gov ^t. of the U. S. ag ^st. usurpations of power, but a right in the States individually to annul and resist them.

The plain answer is, that the remedy is the same under the government of the United States as under all other Gov ^ts. established & organized on free principles. The first remedy is in the checks provided among the constituted authorities; that failing the next is in the influence of the Ballot-boxes & Hustings; that again failing, the appeal lies to the power that made the Constitution, and can explain, amend, or remake it. Should this resort also fail, and the power usurped be sustained in its oppressive exercise on a minority by a majority, the final course 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. That was me in the Notes On Nullification explaining what a state could do if it (by which we really mean its citizens were being oppressed by the federal government.

So doesn’t it sound like I sometimes agree more with Calhoun than myself?  No.  Look at the context here.  In the Virginia Resolution I was talking about the Alien and Sedition Acts.  The Sedition Act made it a crime to criticize the federal government.  This obviously violated the Constitution.  You don’t have to have helped write the Bill of Rights (which I did) to recognize that the law is a clear violation of the First Amendment.  But the Sedition Act did more than just violate the Bill of Rights.  It would have been a radical violation of the rights of American citizens even if there had been no First Amendment.  How can citizens deliberate, in a democratic and republican manner, if the government in power can punish the people and the representatives of the people who criticize the government too effectively? 

What does the Sedition Act remind you of?  I know what it reminds me of.  It sounds like  the beginning of “ a long train of abuses and usurpations, pursuing invariably the same object evinces a design to reduce them under absolute despotism.”  I did write of the states as “parties” to the Constitution in the Virginia Resolution, but don’t think of each state relating to the federal government’s laws the same way the Supreme Court relates to congressional statute.  When I’m writing about interposition, I’m not talking about legally striking down a federal law.  I’m talking about a state acting relative to the federal government the way the colonies related to the British Government during the Revolution.  Interposition is a state stepping in to protect its people he way the governments of the colonies stepped in to protect the rights of the American people in 1775-1776.  The state doesn’t have the legal or constitutional authority to interpose, but no group of people have the obligation to allow themselves to be governed tyrannically.   In the case of the Virginia Resolution (as in the case of the Revolution) the state (or colonial) governments seemed the best vehicle for stopping oppression.  

And we didn’t forcibly resist the Sedition Act. We didn’t interpose what I still think was plainly unconstitutional law that violated fundamental freedoms. Why not? Well, let us read what the Declaration says, “Prudence, indeed, will dictate that governments long established should not be changed for light and transient causes; and accordingly all experience hath shown that mankind are more disposed to suffer, while evils are sufferable, than to right themselves by abolishing the forms to which they are accustomed.” That sounds about right.  If the Federalists had continued and extended their oppressive policies, if we democrats and republicans had lost the elections and if the Supreme Court allowed the federal government to violate the rights of the people, then interposition by the state of Virginia might well have been justified.  But if the state of Virginia had interposed to prevent the enforcement of federal law, it wouldn’t have been like Marbury v. Madison . It would have been like Lexington and Concord.

Now comes this John Calhoun.  I remember back in 1810-1816 when he had been more nationalist than me.  He had thought that the Constitution allowed the Congress to appropriate money for internal improvements.  I thought that wasn’t among the Constitution’s enumerated powers.  The point isn’t to argue that Calhoun is a hypocrite - though I have never known a more self-serving, falsely pious, fantasist in my life.  The point is that there will always be disagreements about constitutional interpretation.  These disagreements can be legally handled by public debates, elections, the actions of the elected branches of the federal government and the federal courts.  There is no, and I have claimed no, legal power of interposition.  Legality has nothing to do with interposition (though its ultimate purpose might be to restore a better understanding of the Constitution.)  If you try interposition, you better be right about the underlying constitutional question because you aren’t risking and adverse court decision.  You are risking the hangman’s rope. That might be okay.  There are some things worth risking the hangman’s rope over.  I tend to think that the protective tariff isn’t one of those things, but it is Mr. Calhoun’s neck after all.   

 But don’t let anyone fool you.  If you are trying “nullification” of federal laws as a way of pursuing your policy preferences on the normal issues of the day, you are going down the path to bloody disaster.  Either you will destroy your state, yourself and your followers or you will destroy your country and the Constitution you say you are protecting.  Don’t say I didn’t warn you.