People periodically tell us that James Madison did not really support nullification. But in fact, the “Father of the Constitution” upheld the basic principles consistently throughout his life.

Generally, Madison nullification-deniers base their view on his later writings during the so-called nullification crisis related to tariffs in the late 1820s and early 1830s. I address these arguments HERE. But occasionally opponents of nullification will argue Madison never really believed that a single state could take action to interpose to stop an unconstitutional act, even as he drafted the Virginia Resolutions of 1798.

A TAC member recently ran across some old PowerPoint slides from a history class that advance this idea. The professor argued against nullification using Madison’s Report of 1800.

The Report of 1800 was a lengthy defense of the Virginia Resolutions of 1798 where Madison asserted states “have the right, and are in duty bound to interpose” when the federal government engages in a deliberate, palpable, and dangerous exercise of undelegated powers. In other words, this college professor claimed Madison pretty much immediately backed away from what he clearly wrote in the Virginia Resolutions, and that he did not believe a state actually has a right to “nullify” or “interpose” to stop unwarrantable federal actions. The professor’s argument went something like this.

In his Report of 1800 to the Virginia general assembly, Madison reviewed and affirmed his original argument, but with one particular clarification: While states might declare a law unconstitutional, this did NOT mean that they could nullify a law. They could merely try to persuade others of their opinion, and at most, call a constitutional convention.

When the student questioned the professor further, he called the idea that Jefferson and Madison actually supported nullification “wrong and crazy.”

I’ve heard this argument before.

Generally, those who advance it rely on comments Madison made at the very end of the Report of 1800. We’ll look at exactly what Madison said in a moment, but first just ask yourself this question: why would Madison write a resolution calling on states to “interpose,” and then write thousands of words defending the resolution, if all he meant was “we’re trying to change people’s minds?”

The word interpose clearly implies more than persuading others or trying to amend the Constitution. Samuel Johnson’s Dictionary of the English Language published in the late 1700s defines “interpose” as “to place between; make intervenient. To thrust in as an obstruction, interruption, or inconvenience.” Madison was clearly saying the states could take action to block operation of an unconstitutional act.

In his report, Madison emphatically said the states are the highest authority in the constitutional system, and they ultimately have the right to decide issues of constitutionality and more importantly, how they plan to interpose.

“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”

This hardly seems like language one would use to merely try to persuade others of their opinion or just call a constitutional convention.

Generally, critics of nullification point to the following passage in the Report of 1800 to “prove” Madison didn’t really support nullification.

If there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government; where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the constitution imposes no restraint, is as allowable among the state governments, as among other public bodies, or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures, to the federal legislature, as the immediate constituents of one of its branches.

The legislatures of the states have a right also, to originate amendments to the constitution, by a concurrence of two thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned, are, as well as Congress, to concur in the measure. The states have a right also, to enter into agreements, or compacts, with the consent of Congress. In all such cases, a communication among them, results from the object which is common to them.

Madison goes on to point out that there are other means constitutionally open for consideration, and that the resolutions did not suggest any actions that were not “necessary or proper.”

And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states, a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds, into any culpable imputation.

Readers must keep these comments in their proper context. They don’t refer to the general principles of nullification, but a specific section of the resolutions some in the opposition party apparently misconstrued. In fact, the resolutions don’t call for any action beyond declaring the Alien and Sedition Acts unconstitutional and “that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired, the authorities, rights, and liberties, reserved to the states respectively, or to the People.” Madison was basically saying “the resolutions don’t spell out what actions states might take to interpose, so don’t read into it more than is there.”

It’s important to understand Madison and Thomas Jefferson worked closely together developing a strategy to address the Alien and Sedition Acts. You cannot separate their positions. Jefferson also drafted resolutions that were passed by the Kentucky legislature asserting the “nullification” is the “rightful remedy” when the federal government exercises undelegated powers. Together the Virginia and Kentucky Resolutions set the philosophical foundation for nullification and interposition. They don’t define what these action entail. They don’t call for specific acts. They leave open what steps states should take and in what order. But they do set the stage for further action.

A series of letters between the two men make clear the resolutions were merely a starting point in the process, and they were prepared to take further action if necessary. A week after passage of the Kentucky Resolutions, Jefferson sent a letter to Madison that makes this abundantly clear.

I inclose you a copy of the draught of the Kentuckey resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent. [Emphasis added]

If you read the correspondence between Madison and Jefferson, you will note they strategically agreed to take a moderate tone. They hoped merely protesting would result in a repeal of the Alien and Sedition Acts. In fact, the electoral victories that swept Jefferson into the White House and the Federalists out of power accomplished exactly what they’d hoped. But they were willing to take state action further. It’s clear from their letters. Jefferson even mentions secession.

Opponents of nullification want to shoehorn a few paragraphs included in the end of the Report of 1800 to bolster their position that Madison rejected nullification. But it simply doesn’t work when you read the passage in context.

Madison clearly meant what he said when he asserted states have a duty to interpose – to stand between the people and the federal government, and resist unconstitutional actions. Jefferson clearly meant what he said when he asserted nullification is the rightful remedy. Attempts by nullification deniers to use this short section to alter the clear meaning of two sets of resolutions, the bulk of the Report of 1800, and the multiple letters between Jefferson and Madison amount to nothing more than semantic gymnastics.

Mike Maharrey

The 10th Amendment

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”



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