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1. “A Real Nondescript”James Madison’s Thoughts on States’ Rights and Federalism
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13 1“A Real Nondescript” James Madison’s Thoughts on States’ Rights and Federalism JackN.Rakove,StanfordUniversity O n March 12, 1833, four days before his eighty-second birthday, James Madison wrote Senator William Cabell Rives to commend the speech thathisVirginiaprotégéhadjustgivendenouncingthedangerousconstitutional theory of nullification emanating from South Carolina. “It seems strange that it should be necessary to disprove this novel and nullifying doctrine ,” Madison observed, “and stranger still that those who deny it should be denounced as Innovators, heretics & Apostates.” That was a comment for the crisis of the moment, but Madison used it, as he often did in his writings, to introduce a more sustained analysis of the question at hand. “Our political system is admitted to be a new Creation—a real nondescript,” he observed. “Its charactermustthereforebesoughtwithinitself;notinprecedents,becausethere arenone;notinwriterswhosecommentsareguidedbyprecedents.”Whocould possiblyknowhowwriterslike“Vattelandothersofthatclass”couldmakesense of the “Compound & peculiar system” that was the American federal republic?1 “Nondescript” to Madison meant something very different from its colloquialuseinAmericanEnglishtoday .Hereitindicatedthattheobjecttobeexamined —the American form of federalism—had never been previously known, muchlessadequatelydescribed.OrasMadisonwroteJohnTyler,Virginia’sother senator,aboutthesametimeashewroteRives,“[T]hesystemwastobeanew& compoundone—anondescriptwithoutatechnicalappellationforit.”2 Tylerhad 14 “A Real Nondescript” taken a position very different from that of Rives in the Senate debates, and Madison’sintentionwastocorrectTyler’schargethatthepurposeoftheVirginia Plan of May 1787 “was to render the states nothing more than the provinces of a greatGovernment,torearupontheruinsoftheoldConfederacyaConsolidated Government,oneandindivisible.”3 ReasoninglikethisdroveMadisontoaborderland of intellectual dejection. To analyze the nature of a constitution, he insisted,“letcandordecidewhetheritbenotmorereasonable&justtointerpret the name or title by facts on the face of it, than to torture the facts by a bed of Procrustes into a fitness to the title.”4 This was not a new motif in Madison’s political thinking. In Federalist No. 37,hisremarkablemeditationonthedifficultyofconstitution-making,Madison had laid out an epistemological model for the rational discussion of political phenomena. There he emphasized the difficulty of tidily dividing and distinguishing the powers of government either between state and nation or among its departmental institutions. The first application of this approach came only twoessayslater,inthediscussionofthenationalandfederal(thatis,state-based) aspects of the proposed Constitution in Federalist No. 39. Some commentators find Madison’s fivefold analysis of this problem frustrating in its detail or perhapsevendisingenuousinslightingthedecisiveadvantagesthatthenational government might finally obtain over the states. Yet Madison’s scheme for classifyingthedifferentmodesinwhichthesystemwouldoperatewasfullyconsis tent with the principles he had set out in Federalist No. 37. Equally important, it remained the basis upon which Madison continued to reason about federalism for the next four decades and thus a source of his annoyance and concern with the dangerous tendencies he saw in American politics during the final years of hislife.MadisonunderstoodthatthetruthofAmericanfederalism—that“nondescript ,” unprecedented form of government—could be grasped only in its details. Instead, he lived long enough to worry that the discourse of federalism wasdegeneratingintoacontrapositionoftwoabsoluteandsimplisticformulas, one based on an appeal to the irreducible primordial sovereignty of the states andtheotherontheinvocationofanational“Wethepeople”thatcouldberead to threaten the residual source of state autonomy he thought needed to be preserved .Nullificationwastheimmediateobjectofhisconcernintheearly1830s, but the threat of secession trailed not very far behind. Madison’s intellectual despair for the Union was thus a function of the risks that political leaders were takingbysubstitutingsimplisticformulaeforthecivicdutytounderstand,and thus work with, the “nondescript” federal system his generation had created. [3.234.177.119] Project MUSE (2024-03-28 19:20 GMT) jack n. rakove 15 A conventional piece of American constitutional wisdom holds that the question of secession was definitively settled on the battlefield. Inter arma leges silent, and why cannot that adage apply just as readily to questions of constitutionalimportasitdoestotheordinaryviolenceofwar ?InJuly1863,Gettysburg and Vicksburg rendered the key initial verdicts on the controversy, opening prospectsforanultimateUnionvictory,andAppomattoxendedanypossibility for a final appeal. On the other side of the question, one can easily imagine the counterfactual alternative, that a Southern victory at arms could have establishedaconclusiveprecedentvalidatingtherightofsecession .JustastheNorthernvictorymadetheideaofsecessionpermanentlyunconstitutional ,soaSouthernvictorywouldhaveconfirmedtheultimateconclusionthatlonglaylatentin states’ rights thinking. Against these suppositions, however, there stands a different premise groundedintheoriginalstatementofthepromiseofAmericanconstitutionalism setbyAlexanderHamiltonintheopeningparagraphofThe Federalist.“Ithasbeen frequentlyremarked,”Hamiltonobserved,“thatitseemstohavebeenreservedto thepeopleofthiscountry,bytheirconductandexample,todecidetheimportant question, whether societies of men are really capable or not of establishing good government from reflection and choice, or whether they are forever destined to depend for their political constitutions on accident and force.” A constitutional doctrine either established or disproven by military success would fall closer to the “accident and force” pole of Hamilton’s contrast than to “the reflection and choice”modelthatThe Federalist waswrittentosupport.Toreduceorequatethe validityofsecessionwiththecourseofwarwouldconvertabasicproblemofconstitutionalgovernanceintoamatterofmilitaryfate . Equally important, in the absence of an explicit warrant in the text of the Constitution, the idea of either secession or nullification as legitimate constitutional options seems just as problematic. In both cases, the appeal to force...