Sunday, May 27, 2012

James Madison and the Federal Veto: "In all cases whatsoever"

In her book The Ideological Origins of American Federalism lawprof Alison LaCroix explores a series of episodes from the Revolutionary and post-Revolutionary periods illustrating the development of lines of thought justifying the existence of multiple layers of government in order to counter the fundamental British argument that imperium in imperio was a “solecism.” While Prof. LaCroix spends a good deal of time linking the episodes and trying to establish a framework for evaluating the evolution of American arguments about government, I in my simplistic way most enjoyed the book for its descriptions and discussions of particular events and debates

Runner-up among these episodes, in my view, is Prof. LaCroix's chapter on the extrordinary 1773 debate over the nature of sovereignty between Massachusetts Governor Thomas Hutchinson and the colony's legislature (available online in Alden Bradford, et al., eds., Speeches of the Governors of Massachusetts, pp. 336 et seq.).

But the clear winner, I think, is the chapter on James Madison.  Much ink has been spilled over Madison's views concerning government immediately before and at the Philadelphia Convention, but Prof. LaCroix brings home, in a way I have not seen before, how central and essential the power of veto was to Madison's conception of the new federal government.

While I will get to the Virginia Plan itself in the next post, suffice it to say for present purposes that it contained provisions that would have granted the general government the power to veto state legislation.  This proposal, though often noted, is usually regarded as an embarrassment, an odd outlier that Madison stuck in perhaps as a placeholder until a better device to insure federal supremacy could be devised.  But Prof. LaCroix argues convincingly that Madison thought long and hard about the veto power, that it was central to his conception of the new government, and that he was convinced that it was utterly essential to keep the confederacy from flying apart.

I have neither the desire nor the will to parrot Prof. LaCroix's arguments.  However, I thought it would worthwhile to lay out, and provide links to, the key documents that she cites, so interested readers can consider them for themselves.

For convenience, the story begins over the winter of 1786-1787, when Madison, in anticipation of a convention, conducted a wide-ranging historical review of ancient and modern confederacies.  His studies resulted in thirty-nine pages of notes that have come down to us as Of Ancient and Modern Confederacies.  The notes indicate that a principal lesson that Madison drew was that confederacies typically flew apart because the central authority was not strong enough.

For example, Madison listed as the first ""Vice[] of the Constitution" of the Amphyctionic League the fact that "The defect of subjection in the members to the general authority [i.e., the failure of the members to be completely subjected to the general authority] ruined the whole Body."  Concerning the "Helvetic Confederacy," "weakness of the Union" was identified as a Vice.

So too with the "Belgic Confederacy": "The Union of Utrecht imports an authority in the States Genl seemingly sufficient to secure harmony; but the Jealousy in each province of its sovereignty renders the practice very different from the Theory."  And in the "Germanic Confederacy" "Jealousy of the Imperial authority seems to have been a great cement of the Confederacy."

At about the same time, Madison compiled his famous notes on the Vices of the Political System of the United States, which harped again and again on the failure of the states to follow central authority, both directly by ignoring federal commands and indirectly by legislating on matters on national concern and violating the rights of other states. For example:
1. Failure of the States to comply with the Constitutional requisitions.

This evil has been so fully experienced both during the war and since the peace, results so naturally from the number and independent authority of the States and has been so uniformly examplified in every similar Confederacy, that it may be considered as not less radically and permanently inherent in, than it is fatal to the object of, the present System.

2. Encroachments by the States on the federal authority.

Examples of this are numerous and repetitions may be foreseen in almost every case where any favorite object of a State shall present a temptation. Among these examples are the wars and Treaties of Georgia with the Indians--The unlicensed compacts between Virginia and Maryland, and between Pena. & N. Jersey--the troops raised and to be kept up by Massts.

3. Violations of the law of nations and of treaties.

From the number of Legislatures, the sphere of life from which most of their members are taken, and the circumstances under which their legislative business is carried on, irregularities of this kind must frequently happen. Accordingly not a year has passed without instances of them in some one or other of the States. The Treaty of peace--the treaty with France--the treaty with Holland have each been violated.[See the complaints to Congress on these subjects]. The causes of these irregularities must necessarily produce frequent violations of the law of nations in other respects. As yet foreign powers have not been rigorous in animadverting on us. This moderation however cannot be mistaken for a permanent partiality to our faults, or a permanent security agst. those disputes with other nations, which being among the greatest of public calamities, it ought to be least in the power of any part of the Community to bring on the whole.

4. Trespasses of the States on the rights of each other.

These are alarming symptoms, and may be daily apprehended as we are admonished by daily experience. See the law of Virginia restricting foreign vessels to certain ports--of Maryland in favor of vessels belonging to her own citizens--of N. York in favor of the same. Paper money, instalments of debts, occlusion of Courts, making property a legal tender, may likewise be deemed aggressions on the rights of other States. As the Citizens of every State aggregately taken stand more or less in the relation of Creditors or debtors, to the Citizens of every other States, Acts of the debtor State in favor of debtors, affect the Creditor State, in the same manner, as they do its own citizens who are relatively creditors towards other citizens. This remark may be extended to foreign nations. If the exclusive regulation of the value and alloy of coin was properly delegated to the federal authority, the policy of it equally requires a controul on the States in the cases above mentioned. It must have been meant 1. to preserve uniformity in the circulating medium throughout the nation. 2. to prevent those frauds on the citizens of other States, and the subjects of foreign powers, which might disturb the tranquility at home, or involve the Union in foreign contests. The practice of many States in restricting the commercial intercourse with other States, and putting their productions and manufactures on the same footing with those of foreign nations, though not contrary to the federal articles, is certainly adverse to the spirit of the Union, and tends to beget retaliating regulations, not less expensive & vexatious in themselves, than they are destructive of the general harmony.

5. want of concert in matters where common interest requires it.

This defect is strongly illustrated in the state of our commercial affairs. How much has the national dignity, interest, and revenue suffered from this cause? Instances of inferior moment are the want of uniformity in the laws concerning naturalization & literary property; of provision for national seminaries, for grants of incorporation for national purposes, for canals and other works of general utility, wch. may at present be defeated by the perverseness of particular States whose concurrence is necessary.

A principal problem, in short, was that the general government lacked sufficient authority.  And the remedy, Madison strongly implied, was a grant of power to coerce and restrain the states:
7. want of sanction to the laws, and of coercion in the Government of the Confederacy.

A sanction is essential to the idea of law, as coercion is to that of Government. The federal system being destitute of both, wants the great vital principles of a Political Constitution. Under the form of such a Constitution, it is in fact nothing more than a treaty of amity of commerce and of alliance, between so many independent and Sovereign States. From what cause could so fatal an omission have happened in the articles of Confederation? from a mistaken confidence that the justice, the good faith, the honor, the sound policy, of the several legislative assemblies would render superfluous any appeal to the ordinary motives by which the laws secure the obedience of individuals: a confidence which does honor to the enthusiastic virtue of the compilers, as much as the inexperience of the crisis apologizes for their errors. The time which has since elapsed has had the double effect, of increasing the light and tempering the warmth, with which the arduous work may be revised. It is no longer doubted that a unanimous and punctual obedience of 13 independent bodies, to the acts of the federal Government, ought not be calculated on. Even during the war, when external danger supplied in some degree the defect of legal & coercive sanctions, how imperfectly did the States fulfil their obligations to the Union? In time of peace, we see already what is to be expected. How indeed could it be otherwise? In the first place, Every general act of the Union must necessarily bear unequally hard on some particular member or members of it. Secondly the partiality of the members to their own interests and rights, a partiality which will be fostered by the Courtiers of popularity, will naturally exaggerate the inequality where it exists, and even suspect it where it has no existence. Thirdly a distrust of the voluntary compliance of each other may prevent the compliance of any, although it should be the latent disposition of all. Here are causes & pretexts which will never fail to render federal measures abortive. If the laws of the States, were merely recommendatory to their citizens, or if they were to be rejudged by County authorities, what security, what probability would exist, that they would be carried into execution? Is the security or probability greater in favor of the acts of Congs. which depending for their execution on the will of the state legislatures, wch. are tho’ nominally authoritative, in fact recommendatory only.
By late March 1787, Madison's studies had already led him to the tentative conclusion that "this political experiment" (the anticipated Philadelphia Convention) had to recommend a device by which the states were subjugated to "the federal head."  In a letter dated March 19, 1987 to Thomas Jefferson Madison identified this device as the power to veto local legislation "in all cases whatsoever" (emphasis in the original):
2dly. Over and above the positive power of regulating trade and sundry other matters in which uniformity is proper, to arm the federal head with a negative in all cases whatsoever on the local Legislatures. Without this defensive power, experience and reflection have satisfied me that, however ample the federal powers may be made, or however clearly their boundaries may be delineated on paper, they will be easily and continually baffled by the Legislative sovereignties of the States. The effects of this provision would be not only to guard the national rights and interests against invasion, but also to restrain the States from thwarting and molesting each other; and even from oppressing the minority within themselves by paper money and other unrighteous measures which favor the interest of the majority. In order to render the exercise of such a negative prerogative convenient, an emanation of it must be vested in some set of men within the several States, so far as to enable them to give a temporary sanction to laws of immediate necessity.
 By early April 1787, Madison was pressing the same line of thought on Virginia delegate and Governor Edmund Randolph, whose views would carry great weight within the delegation.  In a letter to Randolph dated April 8, 1787  Madison argued that it would be insufficient for "the national Government [to] be armed with a positive and complete authority in all cases where uniform measures are necessary, as in trade, &c., &c."  A power to veto state legislation "in all cases whatsoever" was also required:
Let it [the national Government] have a negative, in all cases whatsoever, on the Legislative acts of the States, as the King of Great Britain heretofore had. This I conceive to be essential and the least possible abridgement of the State sovereignties.  Without such a defensive power, every positive power that can be given on paper will be unavailing. It will also give internal stability to the States. There has been no moment since the peace at which the Federal assent would have been given to paper-money, &c., &c.
And in mid-April Madison turned his lobbying efforts to the single most important delegate, George Washington, whose attendance Madison now anticipated.  In a letter to Washington dated April 16, 1787 Madison took "the liberty of submitting . . . without apology to your eye" "some outlines of a new system" concerning "the subject which is to undergo the discussion of the Convention."

As in his letter to Gov. Randolph, Madison argued to Washington that it was necessary but not sufficient that "the national Government should be armed with positive and compleat authority in all cases which require uniformity; such as the regulation of trade, including the right of taxing both exports & imports, the fixing the terms and forms of naturalization, &c &c."  In addition, a veto over state laws "in all cases whatsoever" was required (emphasis in original):
Over and above this positive power, a negative in all cases whatsoever on the legislative acts of the States, as heretofore exercised by the Kingly prerogative, appears to me to be absolutely necessary, and to be the least possible encroachment on the State jurisdictions. Without this defensive power, every positive power that can be given on paper will be evaded & defeated. The States will continue to invade the National jurisdiction, to violate treaties and the law of nations & to harass each other with rival and spiteful measures dictated by mistaken views of interest. Another happy effect of this prerogative would be its controul on the internal vicissitudes of State policy, and the aggressions of interested majorities on the rights of minorities and of individuals. The great desideratum which has not yet been found for Republican Governments seems to be some disinterested & dispassionate umpire in disputes between different passions & interests in the State. The majority who alone have the right of decision, have frequently an interest, real or supposed in abusing it. In Monarchies the sovereign is more neutral to the interests and views of different parties; but, unfortunely he too often forms interests of his own repugnant to those of the whole. Might not the national prerogative here suggested be found sufficiently disinterested for the decision of local questions of policy, whilst it would itself be sufficiently restrained from the pursuit of interests adverse to those of the whole Society. There has not been any moment since the peace at which the representatives of the Union would have given an assent to paper money or any other measure of a kindred nature.
Madison's extraordinary directness in his letters to Randolph and Washington only emphasizes how critical he viewed the veto to be.  He had to have both men on his side to give his plan any hope of success, and he was utterly frank with them.  He explicitly admitted to both correspondents that the provision was based upon the example of the veto that the King of Great Britain had held over the acts of colonial legislatures, the source of which had been the 1696 Act for preventing Frauds and regulating Abuses in the Plantation Trade:
And itt is further enacted and declared by the Authority aforesaid That all Lawes By-lawes Usages or Customes att this tyme or which hereafter shall bee in practice or endeavoured or pretended to bee in force or practice in any of the said Plantations which are in any wise repugnant to the before mentioned Lawes or any of them soe far as they doe relate to the said Plantations or any of them or which are wayes repugnant to this present Act or to any other Law hereafter to bee made in this Kingdome soe farr as such Law shall relate to and mention the said Plantations are illegall null and void to all Intents and Purposes whatsoever.
It is hard to imagine a precedent more likely to arouse objection and suspicion among other colonists, except perhaps for the despised Declaratory Act of 1766, which Madison's language also recalled (emphasis added):
Whereas several of the houses of representatives in His Majesty's colonies and plantations in America have of late, against law, claimed to themselves, or to the general assemblies of the same, the sole and exclusive right of imposing duties and taxes upon His Majesty's subjects in the said colonies and plantations; and have, in pursuance of such claim, passed certain votes, resolutions, and orders derogatory to the legislative authority of Parliament, and inconsistent with the dependency of the said colonies and plantations upon the crown of Great Britain: may it therefore please Your Most Excellent Majesty that it may be declared, and be it declared by the king's Most Excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That the said colonies and plantations in America have been, are, and of right ought to be, subordinate unto, and dependent upon the imperial crown and Parliament of Great Britain; and that the king's Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, of Great Britain, in Parliament assembled, had, hath, and of right ought to have, full power and authority to make laws and statutes of sufficient force and validity to bind the colonies and people of America, subjects of the crown of Great Britain, in all cases whatsoever.

II. And be it further declared and enacted by the authority aforesaid, That all resolutions, votes, orders, and proceedings, in any of the said colonies or plantations, whereby the power and authority of the Parliament of Great Britain to make laws and statutes as aforesaid is denied, or drawn into question, are, and are hereby declared to be, utterly null and void to all intents and purposes whatsoever.
In succeeding installments I will look at the Virginia Plan and Madison's battles to retain and expand the veto power during the Convention.

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