The Heart of the Regime

In the newest Heritage Foundation First Principles paper, Christian Fritz focuses on the tempting doctrine of nullification and finds it to be at odds with the constitutionalism of the Founders, especially that of James Madison.  In the Virginia Resolution of 1798, in protesting the Alien and Sedition Acts passed by the administration of John Adams, Madison talked of interposition, a doctrine that has become very hazy since that time.  As Fritz shows, interposition should not be confused with nullification; it was instead understood at that time to include the many constitutional methods that the states had recourse to in combating federal legislation that they deemed to be unconstitutional.  According to Madison, interposition

...usually involved an action that came between the people as the sovereign and the sovereign’s agent, the government. This interposition was not a sovereign act, since the people as the collective sovereign did not take that step. It did not break the ties between the people and their government by, for example, nullifying laws. Rather, the interposer, through public opinion, protests, petitions, or even the state legislatures acting as an instrument of the people, focused attention on whether the government was acting in conformity with the people’s mandates as expressed in their constitutions.

The main reason for interposition was due to the lack of communication across the vast areas of land of the new Republic.  Travel took days, and news of the goings on in Congress was obviously much slower than just simply turning on CSPAN.

Madison made clear in his Virginia Resolution that the resolution was not an act of force (that's really the definition of a resolution passed by a state legislature).  It did not nullify the Alien and Sedition Acts because Madison knew that the state legislatures had no power under the Constitution to do such an act; the resolution simply communicated to the other states that Virginia thought the acts in question were unconstitutional.  Interestingly enough, the word nullification was never mentioned in the Virginia Resolution nor in Jefferson's Kentucky Resolution of 1798 (it was included in the revised Kentucky Resolution of 1799).  Madison issued the Report of 1800 in which he again maintained and clarified the arguments he espoused in the Virginia Resolution.

During the nullification crisis of 1832, John C. Calhoun and members of the South Carolina legislature co-opted the arguments of Madison and Jefferson and used them as the basis for the theory of nullification--that a single state had the power to void federal law.  This is how Madison responded to Calhoun and those who would use his name as an authority for nullification:

Madison insisted that neither he nor Jefferson was responsible for nullification, a doctrine with a “fatal tendency.” Rather than protecting the diverse interests of the Union, Madison believed, nullification put “powder under the Constitution and Union, and a match in the hand” of any faction, leaving it to their whim whether “to blow them up.” Secession was a “twin” to the “heresy” of nullification, warned Madison. Both doctrines sprang “from the same poisonous root.” The growth from this root would bring “disastrous consequences.” By 1832, he noted how inexpressibly “painful” it was that Calhoun’s doctrine might cause the Constitution to be “broken up and scattered to the winds.”

Madison based this on the constitutionalism of the founding era:

As Madison explained, the Constitution was “a mixture of both” consolidated and confederated governments. Neither [Daniel] Webster’s claim that the American people in “the aggregate” were the sovereign who formed the Constitution nor Calhoun’s position that individual sovereign states were the parties creating the Constitution accurately described the federal founding. Rather, “the undisputed fact is, that the Constitution was made by the people…as imbodied into the several States…and, therefore, made by the States in their highest authoritative capacity.”[56] States acting in their highest sovereign capacity were not the sovereign people of each state acting individually. According to Madison, a state acted in its “highest sovereign capacity” only when the sovereign people of the state acted in combination with the sovereign people of other states.[57]

During the federal convention, Madison had argued that the sovereign was the people in the discrete states acting collectively. The draft constitution, he noted, sprang “not immediately from the people, but from the States which they respectively composed.” During the ratification debate, he identified the sovereign behind the Constitution as “the people of America,” acting “not as individuals composing one entire nation; but as composing the distinct and independent States to which they respectively belong.”[58]

The call for nullification today mainly extends from paleoconservatives and followers of the Austrian economics of Ludwig Von Mises, but it has reared its head in many Tea Party and 9/12 groups.  Conservatives need to reclaim the principles of the Founding and understand them as the Founders understood them.  These questions are paramount because they go the heart of the nature of the Union and who we are as a people.