Published by the Corcoran Department of History at the
University of Virginia.
Notes to "From Interposition to
Nullification: Peripheries and Center in the Thought of James
Kevin Raeder Gutzman
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
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,
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
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,
13. Charles Hobson, "The Negative on State Laws:
James Madison, the Constitution and the Crisis of Republican
Government," William and Mary Quarterly, vol. XXXVI,
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.
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-
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.
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
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
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,
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,
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
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
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-
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,
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
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
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,
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
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,
Presconstitutionm 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
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,
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
84. The standard understanding of performance
contracts is that absent a fixed term, they can be terminated
by any party with reasonable notice.
86. Madison to William C. Rives, March 12, 1833,
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.
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