I have previously discussed the nature of the Constitution and how it allows interposition and nullification by states. I especially relied on the Virginia and Kentucky Resolutions of 1798-99 by James Madison and Thomas Jefferson.
However, in email conversation with Professor Kevin Gutzman, it came to my attention that I had made a fundamental misunderstanding of these Resolutions, which many others of the time did as well, including both the Federalist Party (who rejected the Resolutions due to this misunderstanding), and the Southern nullification party (who eagerly embraced the Resolutions, erroneous understanding and all).
The issue was this: Madison had said,
...this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact to which the states are parties; ... and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by said compact, the states who are parties thereto have the right ... to interpose for arresting the progress of the evil...the authorities, rights, and liberties appertaining to them.
The Federalists responded that no, the Constitution was not ratified by the states (meaning the state legislatures), but that it was ratified by the people. And as a matter of history, they were quite right; it was popular ratifying conventions, not state legislatures, that had done the ratifying.
Madison responded, in the Report of 1800 (text form, scanned reproduction) that by "state", he meant not the government of a state and its legislature, but the sovereign people of the state, as a democratic body, working through their state. In the end, this meant interposition and nullification operated pretty much the same regardless, but it made a big difference as a matter of political philosophy.
I had already been coming to a realization that something was amiss, when I read Miracle at Philadelphia recently, and saw Madison successfully argue that the ratification of the Constitution must be done by the people, popularly, and not by the states, because the people too would be directly affected by the Constitution. This was not a federal compact among states, but a national government that would operate directly on the people. Furthermore, Madison said, as the states were themselves the products of the people, they could not do anything the people had not consented to. If the people had elected the state legislatures under the Articles of Confederation, the state legislatures lacked power to alter this arrangement.
At first, I was alarmed: what would happen to interposition and nullification?! Then, I was puzzled: what happened to the Virginia Resolution that said the Constitution was a compact of states?
First, eliminating my alarm and fear, I realized that this would do no damage to interposition and nullification. Madison's argument was based on social contract theory, that a return to the "original principles" of the Declaration of Independence was needed. So it meant, at worst, that the people ratified the Constitution and that the people could un-ratify it as well. Madison was taking power from the states, not to give to the federal government, but to give to the people. Furthermore, the people could always appoint the states as their inferior magistrates, as their interposing protectors, an idea that goes back at least as far as John Calvin's Institutes of the Christian Religion 4:20:31, and continually recurs in Reformed Christian writings (such as Theodore Beza's De Jure Magistratum and the anonymous Vindiciae Contra Tyrannos). As best I can tell, in America, the states replaced the feudal hierarchies which earlier Reformed Christians had assumed would be the interposing inferior magistrates. So even if all the power went back to the people, the people could in turn re-appoint the states as their protectors against the federal government, as had been a commonplace among Reformed Christians since the mid-16th-century.
Furthermore, a friend showed me a letter by Madison to Daniel Webster. There, we read,
[T]he undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. ... The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it...This confirmed my suspicion that the people could always appoint the states as their interposing inferior magistrates. According to Madison here, the Constitution was ratified by the people working through their states. If they could work through their states to ratify, then they could work through their states to nullify.
The only question remaining was, what happened to the VA Resolution, which said that the states alone had made a compact? In the Constitutional Convention and in his letter to Webster, Madison had said one thing, but in the VA Resolution, he said something else! And the Report of 1800 is the answer. It turns out that all along, in the VA Resolution, by "state", Madison had meant the people of the state.
Dr. Gutzman told me to see the following books:
* Chapter 4 of his Virginia's American Revolution: From Dominion to Republic, 1776-1840
* His The Politically Incorrect Guide to the Constitution
* His forthcoming biography of Madison.
* William Watkins's Reclaiming the American Revolution: The Kentucky and Virginia Resolutions and Their Legacy
So there you go. I made a mistake, Calhoun made a mistake, but now you won't.
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