Surveying Madison’s thoughts on federalism with an eye toward answering these and like questions is not an easy matter, and it is best that we set forth our procedure at the outset. As federal states proliferate across the globe, the United States often takes pride of place in political and theoretical discussions given its status as the first “modern” federal state. ), Major Collections in the OLL: the Founding Fathers of the American Republic, Political Sermons and the American Revolution, Quentin Taylor, “The Federalist Papers: America’s Political Classic”, Ramsay’s History of the American Revolution, Shaping the Constitution: A View from Mount Vernon, Warren’s History of the American Revolution, Webster and Hayne on the American Constitution, Womersley, The American Revolution as a Conservative Revolution. Beyond this, the negative over state legislation for which Madison longed was granted to the national legislature, which was empowered “to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” To be sure, the plan called for a “Council of revision” composed of “the Executive and a convenient number of the National Judiciary” which could overturn this legislative veto unless extra-majorities in both chambers were to reaffirm the original negative.10 Nevertheless, final jurisdiction over the proper scope of state authority was, in effect, lodged in the hands of the national government. Consequently, what many today conceive of as the problem of federalism—i.e., the gradual erosion of the states’ residual authority—is, in fact, but a manifestation of a more basic problem that concerns the character of the regime established by the Constitution. Federalist Papers Authored by James Madison Such seems to have been the morality even at the time the Fourteenth Amendment was adopted: Section 5 of that amendment grants to Congress—significantly, not the courts—the authority to enforce the broad provisions of Section 1 (e.g., “due process of law,” “equal protection of the laws”) which can be used to severely limit state authority. Today, of course, we use the term “federal,” at least with regard to our constitutional system, to denote a division of sovereignty between the state and national governments. Copyright ©2003 – 2021, Download for offline reading, highlight, bookmark or take notes In his “Notes on Nullification,” written during the last two years of his life, Madison contends that the Virginia Resolutions, far from justifying nullification, were primarily intended to “produce a conviction everywhere ... that the Constitution had been violated by the obnoxious [Alien and Sedition] acts and to procure a concurrence and cooperation of the other States in effectuating a repeal of the acts.” 60 However, the text of the Resolutions suggests that its purpose went well beyond this rather modest political goal. “The means of defence agst. The entire system of federal grants-in-aid which give it leverage over the states leads to an inefficient and unresponsive government. ; Itasca, Illinois: F.E. In this instance Madison holds that the national government can secure this power only through the amendment process.59. [10 ]The Debates in the Several State Conventions on the Adoption of the Federal Constitution, ed. cit., xxxviii. Third, they insisted that the states would enjoy a natural advantage in the struggle for power because, as Madison put it. Given its unlimited power to impose taxes and raise armies, Anti-Federalists worried that the federal government would soon overstep its bounds and oppress the people and states. Beginning in 1776, thirteen British colonies in North America declared their independence from the Kingdom of Great Britain. … For myself, having … never ceased to be a votary of self Govt, I was among those most anxious to rescue it from the danger which seemed to threaten it; and with that view was willing to give a Govt resting on that foundation, as much energy as would ensure the requisite stability and efficacy. And having chosen, in Brant’s words, “the narrow path,” Madison could find justification for it in The Federalist. Quite the contrary. After noting that this was the understanding of the members of the “first session of the first Congress” many of whom “had been members of the federal Convention,” he writes: “A further evidence in support of the Congress’s power to protect and foster manufactures by regulation of trade, an evidence that ought of itself to settle the question, is the uniform and practical sanction given to the power, by the General Government for nearly 40 years with a concurrence or acquiesence of every State Government throughout the same period; and it may be added through all the vicissitude of Party, which marked the period.” To this he adds, “And may it not be fairly left to the unbiased judgment of all men of experience and of intelligence, to decide which is most to be relied on for a sound and safe test of the meaning of a Constitution, a uniform interpretation by all the successive authorities under it, commencing with its birth, and continued for a long period, thro’ the varied state of political contests, or the opinion of every new legislature heated as it may be by the strife of parties, or warped as often happens by the eager pursuit of some favorite object; or carried away possibly by the power of eloquence, or captivating address of a few popular Statesmen, themselves influenced, perhaps, by the same misleading causes.” Letter to Joseph C. Cabell, September 18, 1828. And, if this be the case, is it not “legitimate” for one’s views of state-national powers to vary according to the issues at stake in any particular controversy? 45, 313--14. James Madison was born on March 16, 1751 in Port Conway, Virginia. This terminological difficulty manifests the novelty of our constitutional arrangement in this respect; that is, at the time of founding there was no generally accepted term to describe the distribution of authority between the central government and the component units (i.e., the states) such as that contemplated in the Constitution.33, Madison was quite aware of the “novelty of the undertaking.” The Framers were, so to speak, trying to navigate in uncharted waters. In fact, to rely upon it would serve to give the national government a relatively free hand in setting state-national boundaries. One very practical concern, and one that he notes in his Virginia Report, is “that there may be instances of usurped power, which the forms of the Constitution would never draw within the control of the judicial department.” And still another, potentially more serious problem that he mentions in the same context is that “the judicial department,” like the legislative and executive, “may exercise or sanction dangerous powers beyond the grant of the Constitution.” 75 These difficulties, as we might expect, he brings to the fore by way of justifying his doctrine of interposition, a doctrine that, as we have seen, offers no effective remedy. In his estimation “whatever may be the latitude of Jurisdiction assumed by the Judicial Power of the U.S. it is less formidable to the reserved sovereignty of the States than the latitude of power which it has assigned to the National Legislature.” 81 But he was not at a loss about what to do if the Court did play such a role: “Such is the plastic faculty of legislation, that notwithstanding the firm tenure which judges have on their offices, they can by various regulations be kept or reduced within the paths of duty; more especially with the aid of their amenability to the Legislative tribunal in the form of impeachment.” Moreover, as we have pointed out, he thought it unlikely that the Court “would long be indulged in a career of usurpation to the decided opinions and policy of the Legislature.” 82. “It is no less certain that other means might have been employed which are strictly within the limits of the Constitution.” Two-thirds of the state legislatures, he writes, “by an application to Congress” could “have obtained a convention” for the purpose of “an explanatory amendment to the Constitution.” However, he glosses over the matter: “If the General Assembly, after declaring the two acts to be unconstitutional, (the first and most obvious proceeding on the subject,) did not undertake to point out to the other states a choice among the further measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.” Elliot, IV, 579. He adopted a “strict constructionist” interpretation of the Constitution, which interpreted the constitutional power the federal government as minimally as possible. As we might expect, it is a search in which we find Madison again shifting ground, so much so that he appears to provide no definitive answer to this critical concern. This, of course, would be to lend a presumptive legitimacy to whatever decision Congress—the institution most likely to encroach upon the states’ domain—may make concerning the extent of national powers vis-à-vis the states. Beginning in 1776, thirteen British colonies in North America declared their independence from the Kingdom of Great Britain. the Constitution, revised He even advocated giving Congress the power to veto state laws in order to defend its sphere of power and prevent the passage of unjust laws by the states. [53 ]We may construe one line of argument employed by Madison as an effort to delineate the national and state powers; namely, if the means derived from the “necessary and proper” clause to carry out the end seems “greater,” more significant or sweeping, than the end to be achieved, then the presumption must be that the national government does not possess the constitutional authority to employ the means. To see this we need only take important areas where conflict could easily have been foreseen. For instance, we are asked to believe that, within a period of two years—i.e., in the very first Congress—contrary to his previous position based on both history and firsthand experience, he had come to conclude that the states desperately needed protection from the national government;31 or that minority factions had actually gained control of the national government. This prerogative of government is the great principle which must control the centrifugal tendency of the states; which, without it, would continually fly out of their orbits and destroy the order and harmony of the political system. To see this, we need only imagine how publication of his own Convention notes would have undermined not only his initial position with respect to the bank, but all of those predicated on a “strict” construction. James Madison, 1816. Such a faction, he writes, “may clog the administration, it may convulse the society; but it will be unable to execute and mask its violence under the forms of the Constitution” (10:45). Author: James Madison (Publius) Friday, January 11, 1788. And the reasons are not hard to discover. First, we should note that from the outset of our constitutional experience controversy over state-national relations was inevitable. 2 (1986): 190ff. Madison argues that majority tyranny is best opposed not by eliminating liberty (which is worse than the disease) or harmonizing the people’s opinions or material interests (which is impossible without eliminating liberty), but by increasing the size of the republic. Federalist No. While, he writes, “the existing Confederation is founded on principles which are fallacious” —so much so that it must be abandoned— “other confederacies which could be consulted as precedents, have been vitiated by the same erroneous principles.” As a result, he observes, the history of confederacies “furnish[es] no other light than that of beacons, which give warning of the course to be shunned, without pointing out that which ought to be pursued” (37:182). On the contrary, as we have taken care to point out, there did exist a theoretical framework to accommodate his position, elements of which he himself had set forth in The Federalist during his nationalist days. The leading figure here is James Madison, often called “father of the Constitution,” who provided perhaps the most insightful and sophisticated analysis of federalism at the founding. Thus, with regard to test (b), the system is “mixed” since it embodies both the federal or confederal and national principles (39:197). In this connection, we need only recall that Madison, writing as Publius, had maintained that the national government under the proposed Constitution would secure the rights and liberties of the people to a far greater degree than the state governments; that the multiplicity and diversity of interests in the extended republic rendered it unlikely that majority factions would rule; that the republican foundations of the system were sufficient to thwart minority factions; and, inter alia, that the states would enjoy a pronounced advantage over the national government in any disputes relative to their respective jurisdictions. With the coming of the Civil War, we do find, as I have noted, a constitutional crisis arising over the nature of the foundations of the union, with the South taking a position that would render the union little more than a confederacy—a position that, as the following essay shows, Madison strenuously opposed despite his general antipathy towards centralization of authority. His Virginia Plan furnished the basic framework and guiding principles of the Constitution. This, it would seem, accounts for the fact that, when he writes of the division of powers, he does so in general, not specific, terms. The President also derives his appointment from the States, and is periodically accountable to them.” “This dependence of the General on the local authorities,” he writes, “seems effectually to guard the latter against any dangerous encroachment of the former; whilst the latter, within their respective limits, will be continually sensible of the abridgement of their power, and be stimulated by ambition to resume the surrendered portion of it.” 14 For all of this, however, he does not rule out the possibility that an “esprit de corps will ... exist in the National Government” that might serve to resist such dangerous encroachments by the states.15 This, at least, seems to be his hope. Lead us to ask this and related questions to nullify national laws scope of powers! 'S work do find some consistency, which is not altogether insignificant majority by,... 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