Notes to "From Interposition to Nullification: Peripheries and Center in the Thought of James Madison."

1. Saul Padover, "Madison as a Political Thinker," 20 Social Research 32, et seq. (Spring 1953), at 54, citing "an 1853 manuscript in New York Public Library Manuscript Division." [sic]

2. I disagree with, e.g., Colleen Sheehan, "The Politics of Public Opinion: James Madison's 'Notes on Government,'" William and Mary Quarterly 49 (1992), 609- 627 in that I do not believe there exists a single (public) writing of James Madison while he was still active in politics in which his political philosophy is revealed clearly. Since all his public writings had tactical purposes, to glean his political philosophy, one must either read his private letters in conjunction with his public writings or consider his post- retirement statements. (The latter course obviously may not accurately reflect the beliefs of the earlier, active Madison.) For a similar view, see Padover, "Madison As a Political Thinker," 33.

3. Papers of James Madison, vol. 12, ed. Robert Rutland, et al. (Charlottesville: University of Virginia Press, 1962), 201.

4. Madison's suspicions of the Federalists were even stronger than Jefferson's. John R. Howe, "Republican Thought and the Political Violence of the 1790s," American Quarterly, vol. XIX (Summer 1967), 147-165, at 149.

5. For contrary views of historians, see Drew McCoy, The Last of the Fathers: James Madison & the Republican Legacy (New York: Cambridge University Press, 1989), 119-170; Adrienne Koch and Harry Ammon, "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," William and Mary Quarterly 5 (1948), 147-176. For a hint at the reason why my reading is usually rejected by historians, see Ibid., editors' note, 145-146.

6. "Vices of the Political system of the U. States," April 1787, Papers of James Madison, vol. 9, 348-357.

7. Ibid., 187-188.

8. Cf. Ibid., 229.

9. Ibid., 228 details Madison's objections.

10. The structure of the Senate also led Madison to favor allocating powers to the Executive he had previously favored giving the Senate. Cf. Notes of Debates in the Federal Convention of 1787 Reported by James Madison, ed. Adrienne Koch (New York and London: W.W. Norton, 1966), 344, where he agreed that the Executive, not the Senate, should appoint judges.

11. Lance Banning was mistaken in saying the proposed federal veto was to be wholly defensive. Lance Banning, "The Practicable Sphere of a Republic," in Beeman, et al., Beyond Confederation, fn. 19, 170-171. Rather, Congress would have been able to employ it even when the federal position was not threatened.

12. Madison to Thomas Jefferson, Papers of James Madison, vol. 10, 206-214.

13. Charles Hobson, "The Negative on State Laws: James Madison, the Constitution and the Crisis of Republican Government," William and Mary Quarterly, vol. XXXVI, no. 2 (April 1979), 235.

14. Ibid., 218, 225.

15. Ibid., 228-230. Madison expected violence if a state statute were ever declared unconstitutional. Madison to Thomas Jefferson, October 24, 1787, Papers of James Madison, vol. 15, 206-214, 211.

16. Madison to Thomas Jefferson, October 24, 1787, Papers of James Madison, vol. 10, 206-214.

17. Cf. Lance Banning, "Virginia: Sectionalism and the General Good," Ratifying the Constitution, ed. Michael Gillespie and Michael Lienesch (Lawrence, Kansas: University Press of Kansas, 1989), 274. As a Virginian, he had a powerful incentive to perpetuate the union: Virginia was militarily vulnerable.

18. Peter Onuf, "Reflections on the Founding: Constitutional Historiography in Bicentennial Perspective," William and Mary Quarterly XXIII (1989), 341-375.

19. E.g., by Clinton Rossiter, The Federalist Papers, ed. Clinton Rossiter (New York and Scarborough, Ontario: Mentor Books, 1961), xv. The view that Madison's contribution reflected his true beliefs is reflected in a plethora of articles and books, including Lance Banning, "The Hamiltonian Madison: A Reconsideration."

20. This notion is elaborated in Albert Furtwangler, The Authority of Publius: A Reading of the Federalist Papers (Ithaca and London: Cornell University Press, 1984), passim., especially 17-44, 112-148. Also see Federalists 62 and 63, in which Madison defended the composition of the Senate.

21. Charles Secondat, Baron de Montesquieu, The Spirit of the Laws, tr. Thomas Nugent (New York and London: Hafner Publishing Company, 1966), 120.

22. As Madison and Hamilton conceded, several opponents of the constitution raised this objection to the proposal for establishment of a single government over such a large area. The Federalist, 52-53, 83-89.

23. The consonance between Madison's essay and Hume's was first noted by Douglass Adair in "'That Politics May Be Reduced to a Science': David Hume, James Madison, and the Tenth Federalist," Huntington Library Quarterly, XX (1957), 343-360.

24. Cf. Peter Onuf, "James Madison's Extended Republic," 2380.

25. A position Madison had long held. Cf. "Report on Washington-Carleton Correspondence about Treason," Papers of James Madison, vol. 5, 42.

26. The Federalist, 243.

27. See the discussion of Madison's "Notes on Nullification," infra.

28. The Federalist, 305. Madison put theory into practice in the wake of the Jay Treaty's ratification, but the Virginia General Assembly refused to cooperate. Papers of James Madison, vol. 16, 95- 104.

29. The Federalist, 313. Madison made this point again in Federalist "55, in which he argued, inter alia, that members of Congress need not be as numerous as if it "possessed the whole power of legislation." Ibid., 374..

30. He reiterated this point in "Political Reflections," February 23, 1799, Papers of James Madison, vol. 17, 237-243, at 242.The Federalist, 320.; see also Federalist 55, Ibid., 376. Madison went on to detail the manpower advantage the state militias must always have over federal forces. Once again, he incautiously laid the groundwork for states' rights extremism. For Madison's more candid appraisal of the relative military strengths of the center and the states, see fn. 12, supra.

31. Papers of James Madison, vol. 12, 30 n.2, 91-92; Papers of James Madison, vol. 13, 348.

32. Congressional Debate (Madison's notes), February 2, 1791, Papers of James Madison, vol. 13, 374; Madison to Edmund Pendleton, February 13, 1791, Ibid.; Irving Brant, James Madison: Father of the Constitution, 1787-1800, 327-333.

33. Ibid., 348-349. Madison's constitutional inconsistency was a popular target of Federalist attack, most famously in Hamilton's opinion to President Washington on the constitutionality of the bank. Ralph Ketcham, James Madison: A Biography, 321-322.

34. Paying both the original and the current holders of debt instruments was not feasible, Madison admitted: "A composition, then, is the only expedient that remains; let it be a liberal one, in favor of the present holders; let them have the highest price which has prevailed in the market; and let the residue belong to the original sufferers . . . It will be said, the plan is impracticable; . . . but it does not appear to me in that light . . . having never been a proselyte to the doctrine, that public debts are public benefits." Papers of James Madison, vol. 13, "Discrimination between Present and Original Holders of the Public Debt," 34- 38, at 37, 38.

35. Ralph Ketcham, James Madison: A Biography, 312-315, 331; Drew McCoy, The Elusive Republic: Political Economy in Jeffersonian America (New York: W.W. Norton and Co., 1980), passim. Madison to Thomas Jefferson, March 14, 1794, Papers of James Madison, vol. 15, 284; "Political Observations," April 20, 1795, 511-533, fn. at 511-512.

36. Madison to Thomas Jefferson, May 1, 1791, cited in Franklyn Bonn, Jr., The Idea of Political Party in the Thought of Thomas Jefferson and James Madison, Ph.D. diss., University of Minnesota (1964), 160.

37. For Madison's reaction over time, see Irving Brant, James Madison: Father of the Constitution, 1787- 1800, 371-388. For his lack of moral outrage, Madison to Thomas Jefferson, April 12, 1793, Papers of James Madison, vol. 15, 6-8, at 7 (approving of the regicide). For outright approval of the French Revolution, Madison to Thomas Jefferson, June 13, 1793, Ibid., vol. 15, 28-30, at 30. The pro-Revolution resolutions drawn up by Madison c. August 27, 1793 for the endorsement of Virginia county governments (any criticism of France = love of England = monarchism, a recurrent Madisonian theme of the 1790s) are at Ibid., 79- 80.Papers of James Madison, vol. 17, xx.

38. Madison to Thomas Jefferson, May 20, 1798, Papers of James Madison, vol. 17, 132.

39. Jefferson's draft of the Kentucky Resolutions is at The Portable Thomas Jefferson, ed. Merrill Peterson (New York: Viking Press, 1975), 281-289.

40. Thus also of the people, who have the right to be governed only by a government of their own device; when the federal government ignores the Tenth Amendment, it deprives the people of government by consent.

41. The editors of Madison's papers aver that Madison's version was therefore "more carefully crafted." Papers of James Madison, vol. 17, 186. It is unclear why simple reliance on the Tenth Amendment signifies craftsmanship less careful than Madison's, even though Madison's version was "purposely vague about the recourse left open to a state in protesting such acts." Ibid., 187. Perhaps the editors mean that Madison's version was more politic than Jefferson's.

42. Madison to Thomas Jefferson, December 29,1798, Id., 191-192 contains the famous question, "Have you ever considered thoroughly the distinction between the power of the State, & that of the Legislature, on questions relating to the federal pact." [sic] This is usually read as implying some special Madisonian insight into the nature of the union. However, the following two sentences say: On the supposition that the former is clearly the ultimate judge of infractions, it does not follow that the latter is the legitimate organ[,] especially as a Convention was the organ by which the Compact was made. This was a reason of great weight for using general expressions that would leave to other States a choice of all the modes possible of concurring in the substance, and would shield the Genl. Assembly agst. the charge of Usurpation in the very act of protesting agst [sic] the usurpations of Congress.

43. Cf. Neal Riemer, "James Madison's Theory of the Self-Destructive Features of Republican Government," Ethics, vol. LXV (October 1954), 40 (text at fn. 24). For a statement of their moderate nature, see "Virginia Resolutions: Editorial Note," Papers of James Madison, vol. 17, 188.

44. The Virginia Resolutions of 1798 are at Ibid., 188-190.

45. E.g., Drew McCoy, Last of the Fathers; Adrienne Koch and Harry Ammon, "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties;" Adrienne Koch, Madison's "Advice to My Country" (Princeton: Princeton University Press, 1966); Irving Brant, James Madison: Father of the Constitution, 1787-1800. If, as Koch and Ammon said, Madison did not "believe that the state was the ultimate judge of both the violation and the mode of redress," he certainly did not make that clear in either the resolutions themselves or the Publius letters. Adrienne Koch and Harry Ammon, "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties."

46. John Miller, Crisis in Freedom: The Alien and Sedition Acts, (Boston: Little, Brown & Company, 1951), 171.

47. Ibid., 172.

48. Ibid., 172-173.

49. "Null: . . . 1: having no legal or binding force: INVALID." Webster's New Collegiate Dictionary (Springfield, Massachusetts: G. & C. Merriam Company, 1979).

50. While this is usually read as a matter-of- fact statement, it was probably a misrepresentation of the law of press freedom at the time. Leonard Levy, Legacy of Suppression: Freedom of Speech and Press in Early American History (Cambridge: Harvard University Press, 1960), viii and passim. The uncertainty results from the impossibility of saying whether the doctrine of desuetude had changed the law by 1787.

51. At the end of the eighteenth century, Americans could be expected to be familiar with the long English tradition of enforcing law agreed to be "legal," though not "constitutional." John Reid, In Defiance of the Law: The Standing-Army Controversy, the Two Constitutions, and the Coming of the American Revolution (Chapel Hill: University of North Carolina Press, 1981). Thus, Virginia's statement that theses laws were unconstitutional did not necessarily imply that they were "of no force or effect;" that implication came from the "interposition" proposal in the third resolution.

52. North Carolina's legislature had been Jefferson's first choice for the role of junior partner eventually filled by Kentucky's in adopting his resolutions. Adrienne Koch and Harry Ammon, "The Virginia and Kentucky Resolutions: An Episode in Jefferson's and Madison's Defense of Civil Liberties," 167; Richard Buel, Securing the Revolution: Ideology in American Politics, 1789-1815 (Ithaca, New York: Cornell University Press, 1972), 223- 224.

53. Ibid., 223.

54. Richard Buel, Securing the Revolution: Ideology in American Politics, 1789-1815, 224; Irving Brant, James Madison: Father of the Constitution, 1787- 1800, 470; "The Report of 1800: Editorial Note," Papers of James Madison, vol. 17, 306.

55. Ibid., 305; Madison to Thomas Jefferson, January 4, 1800, Ibid., 302.

56. John Miller, Crisis in Freedom: The Alien and Sedition Acts, 179.

57. Irving Brant, The Fourth President: A Life of James Madison (Indianapolis and New York: Bobbs- Merrill, 1970), 299.

58. Lance Banning, The Jeffersonian Persuasion: Evolution of a Party Ideology, fn. 29, 284.

59. Report of 1800, Papers of James Madison, vol. 17, 307.

60. If interposition consists merely of replacing representatives and instructing senators, why not resort to it on the slightest provocation?

61. Ibid., 310. The analogy of a simple treaty between states was used, implying that each state stood on its own; Madison never raised this analogy in the Nullification Crisis context.

62. Ibid., 311-312.

63. Ibid., 303.

64. John R. Howe, "Republican Thought and the Political Violence of the 1790s."

65. The foremost account is William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 1816-1836 (New York and Oxford: Oxford University Press, 1965). The collapse of the (Madisonian) middle position between state sovereignty and consolidation is the topic of Richard Ellis, The Union at Risk: Jacksonian Democracy, States' Rights and the Nullification Crisis (New York: Oxford University Press, 1987). Also useful is John C. Calhoun, A Disquisition on Government and Selections from the Discourse (Indianapolis: Bobbs-Merrill Educational Publishing, 1953).

66. Madison insisted that the federal tariff, the purported aim of which was to encourage domestic manufactures, was constitutional. Madison to Joseph C. Cabell, September 18, 1828, Writings of James Madison, vol. IX (New York and London: G.P. Putnam's Sons, 1910), 316, et seq. His protestation that the distinction between regulatory and revenue tariffs drawn in the Revolutionary crisis did not apply would convince except that it overlooks his doctrine that the states are the parties to the compact (and thus the final arbiters of its meaning). Ibid., 326.

67. William Freehling, Prelude to Civil War: The Nullification Controversy in South Carolina, 130. This point was tacitly made in Madison to Alexander Rives, January 1833, Writings of James Madison, vol. IX, 495.

68. John R. Howe, "Republican Thought and the Political Violence of the 1790s."

69. Madison to Joseph Cabell, September 18, 1828, Writings of James Madison, vol. IX, 339-340.

70. Madison to Robert Y. Hayne, Ibid., fn. 2, 383.

71. A point he repeated in Madison to Edward Everett, August 28, 1830, Writings of James Madison, vol. IX, 384.

72. This point was reiterated in Madison to Alexander Rives, January 1833, Ibid., 495.

73. See the discussion of Publius' thirty-ninth letter, supra.

74. This point was repeated in Madison to Everett, September 10, 1830, Writings of James Madison, vol. IX, 395 (note), and in "Notes on Nullification," Ibid., 573, 539, fn. 1., where he interpreted Thomas Jefferson's reference to nullification as an appeal to natural rights. The notion that governments may of right ignore natural rights seems only to have been applied by Madison in the context of state opposition to federal action. It may appear to be drawn from John Locke's argument that each is on his own when those who have been authorized to make laws see their right to do so usurped. John Locke, Second Treatise of Civil Government (Chicago: Henry Regnery Company, 1955), 179. However, Locke was speaking of a unified, not a federal, polity. In the American case, as Madison said, the constitution of the general government was a federal act; the Lockean conclusion is that federal usurpation would leave the states on their own (as is implicit in Virginia's third resolution). In that light, nullification becomes a moderate remedy. Also see Ibid., 184-190, where a discussion of the proper remedies to governmental overreaching puts the people in the right and the government in the wrong (thus contradicting Madison's statement). In neither situation did Locke (or the Carolinians) say that each constituent was free to dissolve the compact: only the government in question (in 1798 and 1830, the federal government) could do that. However, only the constituents could decide when that had occurred, for who else was there? (Madison himself agreed in his Report of 1800.) The central attribute of Locke's compact theory of government is that delegation is always contingent: the constituents' rights always remain paramount to those of their creature, the government. The alternative is unlimited government.The foremost practitioner of the Websterite theory of an organic union antedating the federal constitution, President Abraham Lincoln, said the people's existence preceded the constitution and made it possible. If not, "The United States [would] be not a government proper, but an association of States in the nature of a contract [or pact] merely." Garry Wills, Lincoln at Gettysburg: The Words that Remade America (New York: Simon & Schuster, 1992), 130, citing Abraham Lincoln, Speeches and Writings, vol. 2, ed. Don E. Fehrenbacher (New York: Library of America, 1989), 217. Madison, by saying that the ratification of the constitution was a "federal" act undertaken by "independent" states, said that the states were once distinct. In fact, the United States were referred to in the plural for nearly nine decades, which shows that the people at large understood the situation thus (as does their adoption of the word "federal" to denominate the general government).

75. This point, like the letter generally, was repeated in Madison to Edward Everett, August 28, 1830, Writings of James Madison, vol. IX, 383, 402.

76. A threat of force was also implicit in Virginia's and Kentucky's manifestos. Neal Riemer, "James Madison's Theory of the Self-Destructive Features of Republican Government," Ethics, vol. LXV (October 1954), fn. 24, 40.

77. The Portable Jefferson, ed. Merrill Peterson, 281-289, at 286.

78. Madison insisted that the United States' government was neither national nor federal, but a blend of both, and refused to recognize that one or the other must have the final word on constitutional construction. Cf. Madison to Edward Everett, August 28, 1830, Writings of James Madison, vol. IX, 384.

79. Ibid., 383.

80. See also Madison to Alexander Rives, January 1833, Ibid., 495, 496. Implicit in this notion is the idea that a congressional majority may legislate as it will, regardless of the Tenth Amendment's reservation of some powers to the states.

81. This argument was repeated in Madison to C.E. Haynes, August 27, 1832, Ibid., 482, et seq.

82. Ibid., 444, et seq.

83. He repeated this argument in Madison to C.E. Haynes, August 27, 1832, Ibid., 482, 483; in Madison to N.P. Trist, December 23, 1832, Ibid., 489, 490; in "Notes on Nullification," 1835-1836, Ibid., 573, 575-576, 580-581, and elsewhere. Using Madison's logic, assertions of "the free speech rights of men" would raise only claims to such rights when exercised corporately, for only the plural is there used.

84. The standard understanding of performance contracts is that absent a fixed term, they can be terminated by any party with reasonable notice.

85. Ibid.

86. Madison to William C. Rives, March 12, 1833, Ibid., 511.

87. If sovereigns agree to act federally in, e.g., foreign affairs, do they cease to be sovereigns, or are they simply sovereigns acting federally in foreign affairs? Whether conventions of the people in each state or the legislatures were the bodies authorized to speak in sovereign capacity, Madison had held in The Federalist that thirteen sovereigns had made the constitution - - that ratification was a federal act, not the act of one people.

88. Ibid., 511, et seq.

89. Ibid., 574.

90. Ibid., 575.

91. Ibid., 575, 577.

92. Ibid., 595-597.

93. Ibid., 599.

94. Ibid., 603.

95. Ibid., 606.