Montpr. Apl. (say 3d or 4th. 1830
I recd. in due time your favor inclosing 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 Govt. 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 It was formed not by the Governments of the States as the Federal Government, superseded by it was formed; nor by a majority of the people of the U. S. as a single Community, in the manner of a consolidated Government.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 making them, the parties to the compact, even one people for specified objects, cannot 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 and & are the parties to its Constitution. The idea of a compact between the Governors & the Governed was exploded with the Royal doctrine that the 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 and of treaties, &ce. 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 States 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 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 & any thing 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 & non resistance a greater evil, than resistance & revolution, there can remain but one resort, the last of all, the appeal from the cancelled obligations 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 & 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 to 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 cotemporary 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 & cooperatively taken, were meant measures known to the Constitution, particularly controul of the Legislatures and people of the States over the Congs. 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 force or effect"* which in the Resolution before the House followed the word unconstitutional, were near the close of the debates 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.
*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 authorised to say, no Copy of the draft having been retained & the memory not to be trusted after such a lapse of time. I certainly never disapproved the erasure of them.
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 Resolns. The address warns them, agst. the encroaching spirit of the Genl. 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 Fedl. 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 negociation, 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 and 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. & Judy.; 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 where 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 results 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 State 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 utterly 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 every where, 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 & 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 extraconstitutional 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 3/4 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 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 [is] 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 created, 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 inadventures.
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.
Draft, including some marginal notes in another hand (at the bottom of page 589, and on apparently interpolated page 591, which has no part of the letter) (DLC); with a printed copy headed "Madison’s Able Disquisition" (Stan. V. Henkels Catalogue No. 694 1892).