James Buchanan and the Militia IV

Let’s turn next to President Buchanan’s “legislative history” argument, based on the proceedings at the Constitutional Convention. The president asserted that James Madison’s own position at the Convention supported the conclusion that the federal government did not have the power to suppress statewide secession and insurrection.

To make sure we give the president his due, here, again, is his reasoning, in his own words:

So far from this power [to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy] having been delegated to Congress, it was expressly refused by the Convention which framed the Constitution. It appears from the proceedings of that body that on the 31st May, 1787, the clause “authorizing an exertion of the force of the whole against a delinquent State” came up for consideration. Mr. Madison opposed it in a brief but powerful speech, from which I shall extract but a single sentence. He observed:

“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.”

Upon his motion the clause was unanimously postponed, and was never, I believe, again presented. Soon afterwards, on the 8th June, 1787, when incidentally adverting to the subject, he said: “Any government for the United States formed on the supposed practicability of using force against the unconstitutional proceedings of the States would prove as visionary and fallacious as the government of Congress,” evidently meaning the then existing Congress of the Confederation.

Let’s begin by tackling the history. On Tuesday May 29, 1787, Edmund Randolph of Virginia laid before the Convention, sitting as a Committee of the Whole, a series of fifteen resolutions that have become known as the Virginia Plan. The sixth resolution was as follows:

6. Resolved that each branch ought to possess the right of originating Acts; that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.

I have bolded the final clause, on which President Buchanan later focused, but it is also important to note its context. The clause immediately follows the extraordinary proposition that “the National Legislature” should have the power to “negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union.” In other words, Congress would have the right to veto any and all laws of any State that Congress, in its sole discretion, believed intruded on federal authority.

The last clause of the sixth resolution came up for discussion two days later on Thursday May 31, exactly as President Buchanan said. Immediately before that, the Committee of the Whole, surprisingly, apparently reacted favorably to the “negative” clause. Here are Madison’s notes on the subject:

The other clauses [of the sixth resolution] giving powers necessary to preserve harmony among the States to negative all State laws contravening in the opinion of the Nat. Leg. the articles of union, down to the last clause, (the words "or any treaties subsisting under the authority of the Union," being added after the words "contravening &c. the articles of the Union," on motion of Dr. FRANKLIN) were agreed to witht. debate or dissent.

Madison’s notes indicate that the “force” clause was then taken up without pause. Madison was apparently the only person who spoke on the subject. Presumably the other members understood that he was the driving force behind the Virginia resolutions. When he expressed the hope that a “force” clause would prove unnecessary and moved to postpone discussion of it, the other members, who already faced a myriad of extremely difficult issues, were presumably delighted to concur:

The last clause of Resolution 6. authorizing an exertion of the force of the whole agst. a delinquent State came next into consideration.

Mr. MADISON, observed that the more he reflected on the use of force, the more he doubted the practicability, the justice and the efficacy of it when applied to people collectively and not individually. -A union of the States containing such an ingredient seemed to provide for its own destruction. The use of force agst. 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. He hoped that such a system would be framed as might render this recourse unnecessary, and moved that the clause be postponed. This motion was agreed to nem. con.

To this point, then, the legislative history is somewhat more ambiguous – and a good deal more odd -- than President Buchanan suggested. Madison was, on the one hand, willing and in fact eager to dramatically curtail the sovereignty of the states by making all legislation subject to federal veto. On the other hand, he resisted the “force” clause as impracticable, unjust and potentially counterproductive. Were the two positions related, and if so how? And what did Madison mean when he said that “[h]e hoped that such a system would be framed as might render this recourse unnecessary”?

As we will see in a future post, I believe that Madison’s “incidental adverting” (in President Buchanan’s phrase) to the force issue on FridayJune 8, 1787 pretty clearly answers these questions. There is ample reason to think that Madison believed that curtailing state sovereignty in the radical way proposed by the sixth resolution would make the force provision unnecessary. Indeed, a strong case can be made that Madison was not thinking about secession at all, but rather the more mundane issue of how to prevent states from passing legislation that “encroach[ed] on the federal authority.”