The last post on this subject reviewed the “force” provision in the sixth resolution of the Virginia Plan and James Madison’s expression on May 31, 1787 of “hope[] that such a system would be framed as might render this recourse unnecessary.” As President Buchanan noted in his State of the Union Address on December 3, 1860, Madison “advert[ed]” to the “force” provision again on June 3, 1787. Examination of this discussion, I believe, undermines President Buchanan’s conclusions. Let us see why.
It turns out that the immediate topic under discussion on June 3, 1787 was Charles Pinkney’s version of the “negative” clause – the clause that would grant Congress the power to negative any state law.
Here again are Madison’s notes on Pinkney’s introduction of the topic. Pinkney did not propose a “force” clause or mention the “force” issue at all. His sole proposition was that the national legislature needed to have the power to negative state laws deemed to be improper in order to keep the states from invading “the national prerogatives:”
Mr. [CHARLES] PINKNEY moved "that the National Legislature shd. have authority to negative all laws which they shd. judge to be improper." He urged that such a universality of the power was indispensably necessary to render it effectual; that the States must be kept in due subordination to the nation; that if the States were left to act of themselves in any case, it wd. be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations; that this universal negative was in fact the corner stone of an efficient national Govt.; that under the British Govt. the negative of the Crown had been found beneficial, and the States are more one nation now, than the Colonies were then.
Madison enthusiastically endorsed Pinkney’s views. In this context, it was Madison who inserted the “force” issue as relevant to the matter under consideration. Madison's notes describing his speech are a single paragraph. For readability, I have added paragraph divisions:
Mr. MADISON seconded the motion. He could not but regard an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the States to encroach on the federal authority; to violate national Treaties; to infringe the rights & interests of each other; to oppress the weaker party within their respective jurisdictions.
A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy wd. lie in 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 agst. Massts. abetted perhaps by several of her neighbours? It wd. not be possible. A small proportion of the Community, in a compact situation, acting on the defensive, and at one of its extremities might at any time bid defiance to the National authority. Any Govt. for the U. States formed on the supposed practicability of using force agst. the unconstitutional proceedings of the States, wd. prove as visionary & fallacious as the Govt. of Congs.
The negative wd. render the use of force unnecessary. The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination wd. only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system. This prerogative of the General Govt. is the great pervading principle that must controul the centrifugal tendency of the States; which, without it, will continually fly out of their proper orbits and destroy the order & harmony of the political System.
Madison’s position on the “negative” continued to be stunningly radical. He castigated state government. The states had shown over and over, he thought, that they were the problem and needed to be restrained. He regarded “an indefinite power to negative legislative acts of the States as absolutely necessary to a perfect system.” In other words, he urged that their sovereignty be limited so that the system would not fly apart. He urged the Congressional “negative” as “the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them.”
In fact, the passage suggests that Madison’s conception of the “negative” was even more radical than Pinkney’s. Apparently Madison was urging that no state law should come into effect until Congress had had an opportunity to consider whether to veto it or not. Congress would in effect be an additional house of the legislatures of all the states: “The States cd. of themselves then pass no operative act, any more than one branch of a Legislature where there are two branches, can proceed without the other.”
The passage also makes clear that, in Madison’s mind, the “force” and “negative” clauses were intimately interrelated. He argued that inclusion of the “negative” clause would make a “force” clause “unnecessary.” Since the states could pass “no operative act” without congressional review, they could not “encroach on the federal authority.” Force was a species of post hoc remedy aimed at improper state statutes already passed and in effect – an eventuality that would never occur.
Finally, and crucially, Madison’s observations strongly suggest that he was not thinking of, or addressing, secession at all. He was focused on a far more mundane yet important topic: how to effectively prevent states in the Union from passing laws that would impinge on federal authority. States passed such laws all the time. Madison understandably believed that it would be impracticable and impossible for the federal government to send in troops every time they did so. The general government could wind up calling out the troops dozens of times a year. That was clearly absurd. Better to craft a solution that would prevent the passage of such laws in the first place.
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