Power of the Legislature to Negative State Laws
[8 June 1787]
Charles Pinckney moved “‘that the National Legislature shd. have authority to negative all Laws which they shd. judge to be improper’” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 164). This motion was a substitute for the qualified negative contained in the sixth resolution of the Virginia Plan.
Mr. Madison seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischeifs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy wd. lie in an appeal to coercion. Was such a remedy eligible? Was it practicable? Could the national resources, if exerted to the utmost enforce a national decree agst. Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A small proportion of the Community, in a compact situation, acting on the defensive, and at one of its extremities might at any time bid defiance to the National authority. Any Govt. for the U. States formed on the supposed practicability of using force agst. the unconstitutional proceedings1 of the States, wd. prove as visionary & fallacious as the Govt. of Congs. The negative wd. render the use of force unnecessary. The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination wd. only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system, This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.2
1. JM substituted “unconstitutional proceedings” for “misdeeds” before Eppes copied the Debates.
2. Yates’s version:
“Mr. Madison wished that the line of jurisprudence could be drawn—he would be for it—but upon reflection he finds it impossible, and therefore he is for the amendment. If the clause remains without the amendment it is inefficient—The judges of the state must give the state laws their operation, although the law abridges the rights of the national government—how is it to be repealed? By the power who made it? How shall you compel them? By force? To prevent this disagreeable expedient, the power of negativing is absolutely necessary—this is the only attractive principle which will retain its centrifugal force, and without this the planets will fly from their orbits” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 169).
“Madison—The amendment or a reconsideration for discussion seems necessary—I am of opinion that the Genl. Govt. will not be able to compel the large and important State to rescind a popular law passed by their Legislature. If this power does not rest in the national Legisl: there will be wanting a check to the centrifugal Force which constantly operates in the several states to force them off from a common Centre, or a national point” (ibid., I, 171).
“Madison—wished the precise Line of Power could be ascertained—But totally impracticable—for if a Dispute arises the State Judiciaries are compelled to expound the Laws so as to give those of the individual State an Operation—National Government centrifugal” (Strayer, Delegate from N.Y. description begins Joseph R. Strayer, ed., The Delegate from New York or Proceedings of the Federal Convention … from the Notes of John Lansing, Jr. (Princeton, 1939). description ends , p. 40).
[8 June 1787]
Bedford asserted that the negative would enable the large states to “crush the small ones” and that it would keep state laws suspended until reviewed by the national legislature, which would have to sit continuously (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 167–68).
Mr. Madison observed that the difficulties which had been started were worthy of attention and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the Natl. Govt. into each State so far as to give a temporary assent at least. This was the practice in Royal Colonies before the Revolution and would not have been inconvenient; if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the senate alone, and that the more numerous & expensive branch therefore might not be obliged to sit constantly. He asked Mr. B. what would be the consequence to the small States of a dissolution of the Union wch. seemed likely to happen if no effectual substitute was made for the defective System existing, and he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage? If the large States possessed the Avarice & ambition with which they were charged, would the small ones in their neighbourhood, be more secure when all controul of a Genl. Govt was withdrawn.1
1. Yates’s version:
“Mr. Madison confesses it is not without its difficulties on many accounts—some may be removed, others modified, and some are unavoidable. May not this power be vested in the senatorial branch? they will probably be always sitting. Take the question on the other ground, who is to determine the line when drawn in doubtful cases? The state legislatures cannot, for they will be partial in support of their own powers—no tribunal can be found. It is impossible that the articles of confederation can be amended—they are too tottering to be invigorated—nothing but the present system, or something like it, can restore the peace and harmony of the country” (Farrand, Records description begins Max Farrand, ed., The Records of the Federal Convention of 1787 (4 vols.; New Haven, 1911–37). description ends , I, 170–71).