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What James Madison Really Thought About Article V — Why the Father of the Constitution Rejected Nullification pt. 2

Published in Blog on November 15, 2023 by Jakob Fay

In part one of this series examining James Madison and his position on Article V, I briefly alluded to the fact that groups that oppose the calling of an amendatory convention often tout nullification as the Founders’ prescribed means for curbing the growth of the national government and furthermore, list our fourth president as among those who championed this cause. Indeed, as The Heritage Foundation scholar Christian G. Fritz, Ph.D., notes, “Proponents of this doctrine invoke the authority of James Madison to defend the claim that the Constitution empowers states to nullify laws passed by Congress.” However, his enlightening essay explains, “Madison emphatically rejected the attempt by a single state to nullify national laws…. he rejected any constitutional basis for nullification.”

Modern proponents of this doctrine are dogged by several problems. For one, the theory is permanently seared in the nation’s memory as being associated with slavery and the Civil War, making advocating for it an uncomfortable proposition. More practically, nullification (if even valid) does little more than kick the can down the road, effectively sentencing future generations to deal with the problem the nullifiers themselves could not. It might be useful for temporary respite, but it is far from the cure its supporters make it out to be.

Neither of these concerns is inherently offset by whether or not James Madison endorsed nullification. Nevertheless, there is a gaping divide between caricatures of the Father of the Constitution as someone who frequently lauded the states’ ability to abrogate the supreme law of the land and Heritage’s claim that he “rejected any constitutional basis for nullification.”

Madison himself once warned, in an oft-debated letter to Edward Everett (the same orator who infamously spoke for two hours before Abraham Lincoln’s Gettysburg Address), that nullification would “speedily put an end to the Union itself.” Critics have countered that he was referring specifically and exclusively to John C. Calhoun’s “made-up… version of nullification” and that, therefore, his words do not necessarily reflect his thoughts on the topic more broadly. Be that as it may, it does not follow, as a matter of course, that he endorsed nullification, either. As Heritage contends, it seems that what modern readers have so often interpreted as nullification in Madison’s writings is actually something altogether different—the right of interposition.

“Often confused and wrongly associated with nullification, Madison’s concept of interposition encouraged a spirited vigilance consistent with a proper understanding of American constitutionalism,” reasoned Dr. Fritz, legal historian and law professor.

“Interposition sought reversal of national laws that some thought unconstitutional or simply wrongheaded. It involved many potential instruments and actions to maintain the Constitution’s health. It could involve individual citizens or groups of citizens. It might also involve the state legislatures, not acting as the sovereign but as an instrument of the people to communicate concerns about the national constitution.

Alexander Hamilton identified that role in Federalist No. 26. He described the state legislatures as naturally ‘jealous guardians of the rights of the citizens’ of the state. In the new federal system, the state legislatures, observed Hamilton, could ‘sound the alarm to the people” when the national government exceeded its rightful powers.’

Public opinion, petitions, and protests as well as instructions to political representatives were some of the ways interposition could facilitate faithful execution of the Constitution. Interposition could also involve resolving a constitutional controversy by seeking revision of the Constitution itself. James Madison described each of these options as ‘the several constitutional modes of interposition by the States against abuses of powers.’”

Fritz’s thesis aligns well with what Mason said about the two competing doctrines in his 1834 “Notes on Nullification.” Delineating how the states should respond to laws “regarded as not only dangerous in their tendency, but unconstitutional in their text,” he offered the example of how Virginia responded to the egregious Alien and Sedition Acts of 1798:

“Under these circumstances the subject was taken up by Virginia in her Resolutions, and pursued at the ensuing session of the Legislature in a Comment explaining and justifying them; her main object, evidently being, to produce a conviction every where, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts. She accordingly asserted and offered her proofs at great length, that the acts were unconstitutional. She asserted moreover and offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the government of the United States were responsible, and otherwise as specially provided by the Constitution; and further that the States in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and as such possessed an authority paramount to it.

In this view of the subject there is nothing which excludes a natural right in the States individually more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.”

Notice that in these two paragraphs, in describing what some confuse to be nullification, Madison does not once utter that word. Rather, he details the kind of “spirited vigilance” that Professor Fritz spoke of and which Madison himself called “interposition.” In the very next paragraph, however, he goes on to decry nullification by name, confirming that the two theories cannot be conflated. He continues:

“But it follows from no view of the subject, that a nullification of a law of the United States can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet of anarchy cannot be imagined [emphasis added].”

In layman's terms, Madison firmly believed the states could and should remain vigilant against unfavorable federal laws. He did not believe that nullification, the “fatal inlet of anarchy,” enabled them simply to negate such laws. Interposition required citizen and state engagement and implemented healthy processes of federalism. Nullification, among other perils, was subject to fall prey to populist whims, a political passion Mason famously feared and sought to mitigate. He called “the position that a single State may rightfully resist an unconstitutional and tyrannical law of the United States” a “deformity,” noting that its proponents overlook the “essential distinction between a Constitutional right, and the natural and universal right of resisting intolerable oppression.” There was a difference, in other words, between pushing back against federal overreach—of course, the states should do that—and doing so in such a way that threatened to undermine the supreme law of the land.

So, while Madison rejected nullification as defective and dangerous, returning to his 1830 letter to Everett, we see that he recommended an alternative safeguard against tyranny. First, Madison seems to have understood that the actions of the Virginia legislature in opposition to the Alien and Sedition Acts, as laid out before, were already being misconstrued as acts of nullification. He soundly rejected this. “I do not decline a sketch of the views which I have been led to take of the doctrine in question… and of the grounds from which it appears, that the proceedings of Virginia have been misconceived by those who have appealed to them.” The Constitution, quite simply, “cannot be altered or annulled at the will of the States individually,” he contended.

But what if multiple states agreed that the federal government was in the wrong and could not redress their concerns via interposition? Mason addressed that, too:

“Should the provisions of the Constitution as here reviewed, be found not to secure the Government and rights of the States, against usurpations and abuses on the part of the United States, the final resort within the purview of the Constitution, lies in an amendment of the Constitution according to a process applicable by the States.”

The difference between nullification and the Article V convention process was that the former permitted power to a small minority to invalidate the laws of the whole nation. In Madison’s mind, “to establish a positive and permanent rule giving such a power, to such a minority, over such a majority, would overturn the first principle of free government, and in practice necessarily overturn the government itself.” Article V, on the other hand, necessitated participation from the majority of states. Additionally, it did not simply negate federal law but rather aimed to amend the Constitution itself, thereby preserving the integrity of the supreme law of the land.

That same year, he also pointed out “that as safeguards agst. usurpations and abuses of power by the Govt. of the U.S.... an ulterior resort is provided in amendments attainable by intervention of the States, which may better adapt the Constitution for the purposes of its creation.”

Clearly, James Madison was no fan of nullification, preferring instead for the states and people to maintain a careful and constant watch over the federal government. As Christian G. Fritz concludes his lengthy essay, “Whether Madison’s concept of interposition remains a viable and appropriate mechanism today is a question that the present generation of Americans must decide. At the very least, however, Madison would have approved of a vigilant citizenry participating in monitoring the federal constitutional order.” But should that in and of itself prove to be insufficient, he knew, as he wrote in Federalist 43, that Article V enabled “the state governments to originate the amendment[s]” necessary to stave off oppression.

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Read part one of this series here.

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