« PreviousContinue »
MADISON IN THE CONVENTION.
prerogative of the general government is the great pervading principle that must control the centrifugal tendency of the states, which without it will continually fly out of their proper orbits, and destroy the order and harmony of the political system." And when the convention finally adopted the draft without any provision of this kind, he again declared that it "alone could meet all the shapes which these [the injurious acts of the states] should assume." We must measure the change in his personal views on the conditions precedent of a powerful commonwealth, with a capacity for life and built on a federative foundation, by these expressions. But this is not saying that the change in his personal views influenced his interpretation of the constitution, or, if so, to what extent. Our judgment on this point must depend upon how far he considered his main object to be attained in 1787 and 1788, spite of the fact that he was not able to secure an unlimited negative to the government of the Union.
The later school of Calhoun repeatedly appealed to a word used by Madison in the constitutional convention, to prove that even those who most strongly advocated a "consolidation" of the states did not intend to give the federal government the power to use force in order to compel obedience on the part of a state.
During the debates on the clause authorizing the use of the power of the whole nation against a delinquent state, he remarked: “The use of force against a state would look more like a declaration of war than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound."
But this passage must not be separated from the context if its meaning would be rightly understood. Madison in
troduced his remarks with the declaration that "the more he reflected on the use of force the more he doubted the practicability, the justice, and the efficacy of it," and at the close he expressed the hope that "such a system would be framed as would render this resource unnecessary." The issue of the question, it seemed to him, should be determined by its expediency. He did not contest the right of the federal government to defend not only its existence but its rights with force; but he doubted the advisability of making the use of this extreme remedy necessary, and the possibility of applying it with success. Hence he desired that the general government should have the absolute veto, for he could discover no third means; and that congress should have power to "control" the states was a question of which he entertained no doubt. Indeed, he saw the only danger in the usurpation of the states, for even if "a tendency of the general government to absorb the states" should appear, it could, in his opinion, be attended by no fatal consequence. The veto was, therefore, the mildest means which could be discovered to prevent the evil which had grown out of the unconstitutional pretensions of the state governments. "The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy would be an appeal to coercion. Was such a remedy eligible? Was it practicable? Could the national resources, if exerted to the utmost, enforce a national decree against Massachusetts, abetted, perhaps, by several of her neighbors? It would not be possible."2
Madison may have been right in thinking that the employment of force against a state would be impossible at the time, and that hence it would be necessary to give the general government a peaceable means to check any at
PROPOSED VETO OVER STATE ACTS.
tempt at revolt before the agitation should become so intense, and extend to a circle so large, that the authority of the federal government would be seriously endangered. But it is surprising that he, and with him all the distinguished members of the convention, should have been so obstinate in declaring the veto to be the only means by which this end could be attained. The debate had progressed a great way before he gave his decisive reasons for this and at the same time clearly declared to what constitutional means congress would be limited without such a provision. Said he on the 17th of July: "They [the states] will pass laws which will accomplish their injurious objects before they can be repealed by the general legislature, or set aside by the national tribunals." With the exception of the unambiguous prescription of the legal means, the only essential difference between the absolute veto and the power of resistance against the encroachments of the states at the command of the federal government, according to the form of constitution favored by the convention, is the element of time. The extension of the veto power over the states, which he proposed, would always at once prevent, in cases of urgent need, a law which violated the constitutional prerogatives of the federal government from coming into force. But if the veto were withheld, delay would be inevitable, and delay could only mean giving the seed of an insignificant disagreement time to ripen into open rebellion.
In the Federalist he advocated the same view. He says, however: "But ambitious encroachments of the federal government, on the authority of the state governments . would be signals of general alarm. Every state government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the
1 Elliot, Deb., V., p. 321,
whole. The same combination in short would result from an apprehension of the federal, as was produced by the dread of a foreign yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other." But he does not speak here of a right of the states, but only mentions the probability of a fact. This is evident from the comparison drawn. The forcible resistance of the states to the general government might be as justifiable as the forcible resistance of the colonies to England; but in law, it would be, in this case as in that, a revolution and not a mode of procedure warranted by the constitution. In the one case as in the other, there would have been but a naked fact presented, the fact, namely, that the question had been taken out of the domain of law and brought before the tribunal which is the ultima ratio of every people and every age. Madison leaves no doubt as to what, in contrast with these actual remedies, were the legal remedies belonging to the states. "In the first instance," he says, "the success of the usurpation will depend on the executive and judiciary departments which are to expound and give effect to the legislative acts; and in the last resort a remedy must be obtained from the people, who can by the election of more faithful representatives annul the acts of the usurpers.' Here there is nothing said of the duty of the states "to interpose." It is conceded that the general government has the exclusive right of decision, and the only way to reverse this decision is to labor to the end that, at the time appointed by law, other persons with different views may be entrusted with it. And how, indeed, could a constitution which accorded to the states other means of defense, be advocated by the man who condensed the knowledge he had learned from history into these words:
1 Federalist, XLVI.
2 Ibid, XLIV.
MADISON'S EARLIER VIEWS.
"The important truth which it unequivocally pronounces in the present case is, that a sovereignty over sovereigns, a government over governments, a legislation for communities, as contradistinguished from individuals, as it is a solecism in theory, so in practice it is subversive of the order and ends of civil policy, by sustaining violence in place of law, or the destructive coercion of the sword in place of the mild and salutary coercion of the magistracy"? The saying of John Quincy Adams already quoted, " that the constitution itself had been extorted from the grinding necessity of a reluctant people," will now be better understood.
1 Federalist. XX.