Montpellier April 1830.
"But there are doctrines espoused 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, and by force annul within itself, acts of the Government of the United States, which it deems unauthorised by the Constitution of the United States; 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 United States, it is not sufficiently kept in view, that being an unprecedented modification of the powers of Government, it must not be looked at thro’ the refracting medium either of a consolidated Government, or of a confederated Government: 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 of the Constitution are 1st. the mode of its formation, 2d. the division of the Supreme powers of Government between the States in their United capacity, and the States in their individual capacities.
1st. It was formed not by the Governments of the component States, as the Federal Government for which it was substituted was formed; nor was it formed by a majority of the people of the United States, 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, and formed consequently by the same authority, which formed the State Constitutions were formed; with this characteristic and essential difference, that the Constitution of the United States being a compact among the States, that is, the people thereof the parties to the compact, making them 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 and the Governed was exploded with the Royal doctrine, that Government was held by some tenure independent of the people.
The constitution of the United States 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.
2d. And that it divides the Supreme powers of Government between the two Governments, is seen on the face of it; the powers of war and taxation, that is the sword and the purse, of commerce and treaties, &ca. vested in the Government of the United States, being of as high a character as any of the powers reserved to the State Governments.
If we advert to the Government of the United States, as created by the Constitution, it is found also to be a Government in as strict a sense of the term, within the sphere of its powers, as the governments created by the Constitutions of the States are within their respective spheres. It is like them organized into a Legislative, Executive and Judicial department. 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 and 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 Governments, the one operating in all the States, the others operating in each respectively; with the aggregate powers of Government 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 and authoritative termination of occurring controversies, can be but the name and shadow of a Government; the very object and end of a real Government being the substitution of law and order, for uncertainty confusion and violence.
That a final decision of such controversies, if left to each of thirteen States, now twenty four, with a prospective increase, would make the Constitution and laws of the United States 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 and 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-and by giving to the Judicial authority of the United States, an appellate supremacy in all cases arising under the Constitution*; arrangements supposed to be justified by the necessity of the case; and by the agency of the people and Legislatures of the States in electing and appointing the Functionaries of the common government; whilst no corresponding relation existed between the latter, and the Functionaries of the States.
* and within the course of its functions
2. Should these provisions be found notwithstanding the responsibility of the functionaries of the Government of the United States to the Legislatures and people of the States, not to secure the State Governments against usurpations of the Government of the United States, there remains within the purview of the Constitution, 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 Government of the United States.
3. The last resort within the purview of the Constitution 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 and 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 and 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 United States, 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 & 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, and the States in the sense in which they were parties to the Constitution; between the several modes and objects of interposition against 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 combatted, a confidence is felt that the Resolutions of Virginia 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 United States. Concert among the States for redress against the Alien and 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 and proper measures in maintaining unimpaired "the authorities rights and liberties reserved to the States respectively or to the people." That by the necessary and proper measures to be concurrently and co-operatively taken, were meant measures known to the Constitution, particularly the controul of the Legislatures and people of the States over the Congress of the United States, 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 and 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 mis-construed into a nullifying import instead of a declaration of opinion, the word unconstitutional alone was retained, as more safe against 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 dis=approved the erasure of them.
Another and still more conclusive evidence of the intentions of the Legislature is given in their address to their Constituents, accompanying the publication of their Resolutions. The address warns them against the encroaching spirit of the General Government; argues the unconstitutionality of the Alien and 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 Federal policy. But nothing is said that can be understood to look to means of maintaining 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 against them. Their great objection, with a few undefined complaints of the spirit and character of the Resolutions, was directed against the assumed authority of a State Legislature to declare a law of the United States to be unconstitutional, which they considered an unwarrantable interference with the exclusive jurisdiction of the Supreme Court of the United States. Had the Resolutions been regarded as avowing and maintaining a right, in an individual State, to arrest by force, the execution of a law of the United States, 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 Government of the United States and those of the Individual States may and 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 Government: but the analogy does not exist. In the case of disputes between independent parts of the same Government, neither of them being able to consummate its pretensions, nor the Government to proceed without a co-operation of the several parts, necessity brings about an adjustment. In disputes between a State Government and the Government of the United States, the case is both theoretically & practically different; each party possessing all the Departments of an organized Government, Legislative, Executive & Judiciary; and having, each, a physical force at command.
This idea of an absolute separation and independence between the Government of the United States and the State Governments, 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 and equal: but where there is both mutuality and 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, altho’ privileges may be granted by each of the parties at the expense of its internal juris=diction. 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 result may be in practice.
I am now brought to the proposal which claims for the States respectively, a right to appeal against an exercise of power by the Government of the United States, which by the State is decided to be unconstitutional, to a final decision by three fourths of the parties to the Constitution. With every disposition to take the most favorable view of the 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 United States is to be suspended within the State. Such an effect would necessarily, arrest its operation every where; a uniformity in the operation of the laws of the United States 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 and kinds of complaints that 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 three fourths of the States can sustain the State in its decision, it would seem, that this extra constitutional course of proceeding might well be spared; inasmuch as two thirds can institute, and three fourths 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, three fourths are required to reverse the decision of the State, it will then be in the power of the smallest fraction over one fourth; of seven states for example out of twenty four; to give the law to seventeen States, each of the seventeen having, as parties to the Constitutional compact, an equal right with each of the seven, to expound and insist on its exposition. That the seven might in particular cases be right and the seventeen wrong, is quite possible. But to establish a positive and permanent rule, giving such 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 Government 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 three fourths 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 three fourths 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 and balancing each other. Is there a Constitution of a single State out of the twenty four, 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 United States 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 three fourths of its co-States, to over rule its exposition of the Constitution, because that proportion is authorised 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 the 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 numbers 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.
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 received such ramifications and refinements, that a full survey of it, is a task, against which my age alone might justly warn me."
Tr, labelled "Mr. Madison’s letter on the Nullifying Doctrine. Transmitted to me by Mr. Madison, April 1830. E. Everett" (MHi).