For the Balkinization symposium on Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge University Press, 2023).
Edward A. Purcell, Jr.
In Monitoring American
Federalism Christian G. Fritz has written a thorough and insightful study
of the role states and state legislatures have played in using ideas of
“interposition” to “monitor” the federal system and check overreaching by the
federal government. While the book
concentrates on the decades from ratification to the Civil War, its last pages
sketch its story briefly up to the present.
Three central theses deserve
note. First, the book argues that
interposition was an “original” idea that emerged in the ratification debate. Promoted by both Alexander Hamilton and James
Madison in the Federalist, it evolved over the centuries into a variety
of forms and continues to operate today in the practice of American
federalism.
Second, the book insists that
“nullification” was not part of original interpositionism but began to develop
only in the early decades of the nineteenth century under the spur of slavery
and ultimately the leadership of John C. Calhoun. Originally interposition referred only to the
right and duty of states and their legislatures to lodge protests, petition
Congress, and circularize other states in warning that some action of the
national government transgressed constitutional limits. It was a procedural device intended to play a
“benign and logical role” in the federal system (37).
Third, the book focuses on Madison
and argues that he maintained a consistent theoretical position from his Federalist
essays through the Virginia Resolutions and his Report of 1800 and on to the
1830s when he rejected nullification and repudiated Calhoun’s theories. In spite of his consistency, the different
contexts in which he addressed interposition and the “convoluted words” he
sometimes used meant that his ideas were commonly misunderstood and often
purposely twisted. This was especially
true for his “language about the theoretical right of the sovereign people to
interpose in the last resort,” Professor Fritz specifies. Indulging “his need to declare a principle of
constitutional theory,” Madison “unwittingly provided the raw materials for
future constitutional catastrophe” (127).
Monitoring American Federalism
raises an intriguing question about the Federalist’s argument that
interposition would enable states to serve effectively as collective monitors
of federalism because they would have a “common interest” in challenging
usurpations by the central government.
Did Madison and Hamilton really believe that? On one hand, the book questions whether they
did, noting that both were deeply skeptical of the quality of state
legislatures. On the other hand, it
concludes that both “accepted the underlying premises of interposition that
state governments were more than a match for the authority of the national
government” (33).
While Madison and Hamilton were
deeply concerned about the dangers states posed to the national government, it
seems unlikely that they actually believed in their “common interest” theory of
collective state monitoring. Not only
did they distrust the state legislatures, but they also understood that state
interests varied greatly and sometimes sharply.
More obvious, both advanced the theory that a “large state” would
protect republicanism because its “extended” sphere would encompass so many
different factional interests rooted in different parts of the country that
none would be able to dominate the central government. Self interest and property claims, Madison
declared, are “an insuperable obstacle to a uniformity of interests.”
Thus, it seems highly unlikely that
Madison, let alone Hamilton, had any faith in their “common interest” theory
but simply found it a needed ploy in the ratification debate. Indeed, Madison’s tenth Federalist–the
locus classicus of his large state theory–invoked generalities about human
nature and “property” but did not hazard a specific mention of the two
hottest-button issues that most divided the states at the Philadelphia
Convention, population size and slavery.
That absence further suggests that the Federalist’s “common
interest” theory of collective state monitoring was far more an abstracted
forensic confection than a credible analysis of likely state behavior. Monitoring American Federalism comes
closest to the mark when it suggests that the theory was essentially “a
rhetorical argument designed to address the objections of Anti-federalists”
(32).
Emphasizing the Federalist’s
repeated advocacy of interposition, the book notes but underplays Hamilton’s
differences from Madison. While Madison
did rely fundamentally on ideas of interposition and multiple checks and
balances, Hamilton gave greater weight to the necessity of an authoritative
national judiciary, a powerful central administration, and a strong national
executive. At the convention itself
Hamilton expressed doubts about the strength of Madison’s version of the large
state theory, and in the Federalist he relied more on the idea that a
large state would remain a republic not because it would be checked by state
interposition but because its greater power would enable it to suppress
factions, with force if necessary. While
Madison equated diversity and local interests with protections for republican
government, Hamilton equated them with bias and political dysfunction. There was “much to fear,” Hamilton insisted,
“from the bias of local views and prejudices and from the interference of local
regulations.” While Madison readily
acknowledged the weaknesses that limited human reason, Hamilton boasted of the
power that the “correct and unprejudiced mind” had to recognize and apply
“axioms as simple as they are universal.”
However much Madison’s Federalist essays advocated the true
“original” version of interposition and assumed the efficacy and desirability
of state monitoring, Hamilton’s contributions saw interposition as a strictly
limited–probably unavoidable–procedure and maintained that the true monitor of
federalism was not the state legislatures but the central government and its
Supreme Court.
Monitoring American Federalism
frequently cites Federalist 46 where Madison promoted interposition by
explaining why states would be able to effectively check the central
government. Due perhaps to the book’s
thesis that Madison’s interposition theory was pacific and procedural, it gives
slight attention to the role of state militias.
But Federalist 46 made it clear that state militias were key
instruments of federalism, armed tools of state power and potential
resistance.
More salient today, state militias
were important because their organization highlighted both the Founders’ racism
and their race-based understanding of the Second Amendment. When Congress enacted the Militia Act of
1792, it restricted militia service to free “white male” citizens. That racial exclusion followed directly on
the heels of the Second Amendment’s ratification, and it provided strong
evidence of the Founders’ understanding of the amendment’s intended
meaning. Because there were free Blacks
even in some Southern states, the statute’s racial exclusion suggests that
Madison and his colleagues could not possibly have intended the amendment to
guarantee those Blacks an individual constitutional right to possess
firearms. Neither Madison nor virtually
any white Southerner would have tolerated such a result. Indeed, in Federalist 46 Madison–who
drafted the Second Amendment and shepherded it through Congress–used its
critical phrase “bear arms” to refer specifically to military service, not to
any “individual” right. Thus, the
Militia Act’s racial provision supports the conclusion that Madison and the
Founders intended the Second Amendment to guarantee only the states’ right to
maintain their militias as structural elements of federalism and
interpositionism, not to establish any personal and individual right to possess
firearms.
Professor Fritz’s book raises
an unavoidable question about word usage.
Put simply, what does the word “interposition” properly mean? The book points out that neither the Federalist
nor other early commentaries used the word “interposition” and that the term
did not even surface in state protests against Chisholm v. Georgia
(1793) which led to the adoption of the Eleventh Amendment. While Madison did use the word “interpose” in
1798 in his third Virginia Resolution, it was only in the early decades of the
nineteenth century that the term began to appear commonly and then came to be
used to justify more aggressive state actions including defiance,
nullification, and ultimately secession.
Following the Civil War interposition’s original procedural meaning was
largely forgotten, the book continues, but that “did not stop its practice”
(258) and after 1900 “state interposition resurfaced as a key component of
American political life” (288). Clearly
stretching the term’s meaning, the book states that in the early twenty-first
century the interpositionist principle lives on in a variety of resistance
forms including a reoriented Supreme Court jurisprudence that “aided state
resistance to perceived excesses of federal congressional power” (304). If the term “interposition” is used in such a
generalized and elastic way, it can refer to any kind of oppositional action in
the name of the states and loses any clear and specific meaning. Indeed, considering the Supreme Court’s
“pro-federalism” jurisprudence as another form of interposition gives the word
a meaning diametrically opposed to the Federalist–and certainly
Hamiltonian–principle that the Court is the protector of the central
government, not the guardian of the states.
Such an all-encompassing usage
seems obscurantist whether one credits the relatively clear “original” meaning
the book delineates, recognizes the quite different connotations that the
nation’s history has given the term, refers to more contemporary forms of
practical or bureaucratic state obstructionism, or simply urges that we should
try to employ as careful a constitutional terminology as we can manage. There are innumerable forms of state
opposition and resistance, and it seems certain that current and future
opponents of federal action will regularly find–or create anew–adapted tactics
and justifying theories when they seek to use state institutions and states’
rights rhetoric to advance their causes.
As the book’s detailed and careful history shows, there is actually no
consistent tradition of “interposition” as a specific doctrine or practice in
American history. Rather, there are
varied, amorphous, evolving, and sporadic practices of opposition to federal
actions that seek to use state institutions–and sometimes the label “interposition”–to
achieve the goals of those who find that federal actions threaten or
disadvantage their interests.
Monitoring American Federalism
reminds us, finally, that American federalism cannot be fully understood
without consistently factoring in the separation of powers that marks not only
the national government but the governments of the states as well. American federalism is not a binary system
with constitutional blocks of “federal power” and rival “state power.” Rather, it is a fractionated and dynamic
system on both sides of the divide, separated into three parts and their many
subsidiaries on the one side and into fifty parts on the other–with each of the
fifty internally divided into its own different branches with their own
subsidiaries. In any relevant
controversy, it makes a difference whether and to what extent the three
national branches are unified or divided, and the same is true on the state
side. Indeed, recent controversies from Bush
v. Gore (2000) to the pending Moore v. Harper (2023) pit state
legislatures against state courts, both seeking power from a ready federal
judiciary while ignoring a politically straight-jacketed Congress. Similarly, it makes a difference to what
extent state opposition is divided or fragmented and against which federal
branch it is directed. Monitoring
American Federalism exemplifies some of these many possibilities in the
nation’s earliest years as the states were pressed variously by Congress
(establishing the Bank of the United States), the Washington administration
(imposing Jay’s Treaty and suppressing the “Whiskey Rebellion”), and the
Supreme Court (deciding Chisholm v. Georgia).
Professor Fritz has done a great
service in unearthing the history of original interposition theory and exploring
the divergent interpretations and uses that developed over the decades. He has similarly done a great service in
illuminating the delicate “middle ground” that Madison staked out, repeatedly
tried to clarify, and strove to maintain against the adverse headwinds of
political and social change. Equally his
book nicely shows some of the ways that Americans have reshaped the nation’s
constitutional law and theory as they sought to manipulate and exploit the
indeterminate, built-in tensions in the Constitution’s federal structure. Students of American federalism will find
this excellent book a treasure-trove of information, insight, and scholarly
inspiration.
Edward A.
Purcell, Jr. Is Joseph Solomon Distinguished Professor Emeritus at New York Law School. You can reach him by e-mail at epurcell@nyls.edu.