States in American Constitutionalism: Interpretation, Authority, and Politics 9780415832397, 9780203494592

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“Much has been written in recent years about ‘horizontal departmentalism,’ the degree to which interpretive authority is shared at the national level among Congress, presidents, and the judiciary. Comparatively less has been written about the history of ‘vertical departmentalism,’ concerning the role that states can play in the enterprise of constitutional interpretation. Bradley Hays’ book should be of immense interest to any lawyer, political scientist, or historian interested in the role this important topic, which, as he demonstrates in his concluding chapters, has some considerable contemporary relevance.” — Sanford Levinson, author of Framed: America’s 51 Constitutions and the Crisis of Governance “Professor Bradley Hays has written a signature work highlighting the importance of state actors as participants in struggles over national constitutionalism rather than as providing constitutional alternatives. His history provides readers with the remarkable variety of ways in which states have sometimes diverted, sometimes reformed, but always played a crucial role structuring the path of national constitutional law in the United States.” — Mark Graber, University System of Maryland Regents Professor “It was an article of faith of many Founders and political theorists that imperium in imperio was a blatant political solecism. But Hays’ succinct study of the ways in which a contentious set of professedly sovereign voices have jockeyed to challenge and settle national constitutional meaning moves beyond the best known—and, purportedly, discrediting—episodes to argue that there has been a tradition of sub-national interpretive pluralism over the length of American history that has helped to define the U.S. constitutional project. Hays’ account deepens our understanding of the dynamics of American federalism, and of the country’s political and constitutional development.” — Ken I. Kersch, Professor of Political Science, Boston College

States in American Constitutionalism

States in American Constitutionalism: Interpretation, Authority, and Politics examines the often overlooked role that states have played in the development and maintenance of American constitutionalism by examining the purpose and effect of state resolutions on national constitutional meaning. From colonial practices through contemporary politics, subnational governments have made claims about what national constitutional provisions and principles ought to mean, fashioned political coalitions to back them, and asserted their authority to provoke constitutional settlement. Yet, this practice has been far from static. Political actors have altered the practice in response to their interpretive objectives and the political landscape of the day. States in American Constitutionalism explains both the development of the practice and the way each innovation to the practice affected subsequent iterations. Hays presents a series of case studies that explore the origins of the practice in colonial constitutionalism, its function in the early Republic, subsequent developments in antebellum and twentieth century politics, and contemporary practice in the first two decades of the twenty-first century. States in American Constitutionalism will be of great interest to students and academics interested in constitutional law and politics, political and constitutional development, and federalism. Bradley D. Hays is an associate professor of political science at Union College. He received his Ph.D. in government and politics from the University of Maryland, has held faculty positions at the Catholic University of America and the University of Nevada, Las Vegas, and been a junior fellow at the Clough Center for the Study of Constitutional Democracy at Boston College. He writes on constitutional politics and political development. He is also “scholar in residence” at WAMC Northeast Public Radio.

Law, Courts and Politics Edited by Robert M. Howard, Georgia State University

In Democracy in America, Alexis de Tocqueville famously noted that “scarcely any political question arises in the United States that is not resolved, sooner or later, into a judicial question.” The importance of courts in settling political questions in areas ranging from health care to immigration shows the continuing astuteness of de Tocqueville’s observation. To understand how courts resolve these important questions, empirical analyses of law, courts and judges, and the politics and policy influence of law and courts have never been more salient or more essential. Law, Courts and Politics was developed to analyze these critically important questions. This series presents empirically driven manuscripts in the broad field of judicial politics and public law by scholars in law and social science. It uses the most up to date scholarship and seeks an audience of students, academics, upper division undergraduate and graduate courses in law, political science and sociology as well as anyone interested in learning more about law, courts and politics. Regulating Judicial Elections Assessing State Codes of Judicial Conduct C. Scott Peters Varieties of Legal Order The Politics of Adversarial and Bureaucratic Legalism Edited by Jeb Barnes and Thomas F. Burke Judicial Review and Contemporary Democratic Theory Power, Domination and the Courts Scott E. Lemieux and David J. Watkins States in American Constitutionalism Interpretation, Authority, and Politics Bradley D. Hays For more information about this series, please visit: www.routledge.com/ Law-Courts-and-Politics/book-series/LCP

States in American Constitutionalism

Interpretation, Authority, and Politics Bradley D. Hays

First published 2019 by Routledge 52 Vanderbilt Avenue, New York, NY 10017 and by Routledge 2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN Routledge is an imprint of the Taylor & Francis Group, an informa business © 2019 Taylor & Francis The right of Bradley D. Hays to be identified as author of this work has been asserted by him in accordance with sections 77 and 78 of the Copyright, Designs and Patents Act 1988. All rights reserved. No part of this book may be reprinted or reproduced or utilised in any form or by any electronic, mechanical, or other means, now known or hereafter invented, including photocopying and recording, or in any information storage or retrieval system, without permission in writing from the publishers. Trademark notice: Product or corporate names may be trademarks or registered trademarks, and are used only for identification and explanation without intent to infringe. Library of Congress Cataloging-in-Publication Data A catalog record for this book has been requested ISBN: 978-0-415-83239-7 (hbk) ISBN: 978-0-203-49459-2 (ebk) Typeset in Times New Roman by Apex CoVantage, LLC

For my parents, Kenneth and Joan Hays, who made this and so much more possible.

Contents

Acknowledgmentsxi 1 Introduction: The (Nonlegal) Role of States in Constitutional Maintenance

1

2 Alerting the People: The Origins and Early Practice of State Maintenance

11

3 Interposing the Protective Shield and Exerting State Authority: The Failures of State Maintenance

33

4 The Authority to Reject Interpretation: State Maintenance in the Twentieth Century

61

5 Reinvigoration: The Return of Madisonian Maintenance, Nullification, and the Affirmation of Judicial Authority

79

6 Conclusion: On Development and Constitutionalism

93

Bibliography101 Index108

Acknowledgments

To borrow a phrase, with slight modification, from former President Barack Obama: I didn’t build this book. What I mean, of course, is that I labored for years to figure out what I needed to say, wrote the words, and edited and reedited the manuscript. But the book and whatever insight it contains would never have come to fruition without many other people, some of whom I now have the opportunity to acknowledge for their role in building this book. The foundation was laid by my parents: Kenneth and Joan Hays. Never has a son enjoyed the unwavering support of their parents more than I. The act of assuring a directionless and underperforming (except perhaps in being class clown) child that he will do something special in this world, then repeating it until he understood what they were trying to say, is an act of the greatest love imaginable. My mother and father are special people who have made everything in my life possible. This book is dedicated to them. They also managed to raise another son, who also believed in his little brother. This is the kind of brother who will read this book in full despite its subject and faults. Thanks, Jon. Mark Graber did more than anyone to shape the content of this book. When I applied to graduate school, I had some idea that Mark was prominent in the field—to the extent that I knew what “the field” was—but over the next five years I grew to understand why Mark is so respected as a mentor and scholar. He did nothing but encourage me to think, to challenge, and to find my voice and perspective. I usually failed then and I continue to fail in new and different ways but Mark persists in his support and enthusiasm. Along my professional voyage, Mark helped introduce me to a community of scholars that were also supportive. Beau Breslin, Justin Crowe, George Lovell, and Gordon Silverstein all offered me important insights or general encouragement at some point in the life of this project. This project has stretched sufficiently long that I doubt many of them remember doing so but I remember and I am grateful to them. Ken Kersch provided me the opportunity to be a junior scholar at the Clough Center for the Study of Constitutional Democracy at Boston College. That opportunity provided me the intellectual space to work through some of the ideas that led to this book. Ken is a generous scholar and I deeply appreciate his feedback at an early stage of this work. The work

xii  Acknowledgments started at the Clough Center led to the publication of “Nullification and the Political, Legal, and Quasi-Legal Constitutions,” in Publius: The Journal of Federalism 43 (2013): 205–26. Portions of Chapter  4 are drawn from that article. I have also been blessed to have a generous and supportive academic home. Joining the faculty of Union College in 2008 has been one of the great decisions in my life. I’ve enjoyed the friendship and support of three department chairs: Zoe Oxley, Clifford Brown, and Michele Angrist. To my other colleagues in the department: Lori, Tom, Robert, Guillermina, Mark, and Cigdem, thank you for demonstrating what it means to be scholar-teachers at a liberal arts college. One of the remarkable things about Union is that one can credibly claim that the administration is part of the scholarly community. Thanks to Therese McCarty and Strom Thacker, the past and current deans of the faculty, for their continued support of faculty research, particularly mine. Last, special thanks to Stephen Ainlay, the eighteenth president of Union College, for reasons too complicated to detail here but that I think he will understand. Union College’s reach extends beyond its graying walls. Robert Howard, class of 1978, is the editor of the Law, Courts and Politics series with Routledge. Bob saw promise in my first two chapters and helped get Routledge on board. More importantly, as the project initially faltered and I struggled to figure out what this book would be, Bob gave me a pep talk and offered future advice whenever I wanted it. I am indebted to him for showing so much faith on what seemed so little ground. Natalja Mortensen at Routledge has shown the patience of Job. This is a wonderful quality in an editor and was essential to this particular project. She has my thanks and respect in equal measure. Last, little would be possible without the love and support of my vivacious wife and partner, Kelli. She willingly tolerates my extremes when the writing is going well and, more often, when it isn’t. More importantly, she fills my life with meaning so, even though we don’t talk much about constitutionalism, every page herein bears her mark. Our two smart, strong, and beautiful daughters, Vivienne and Adrianna, know little of this book and its content but they love books so I hope they someday read this and know that I thought about them as I wrote it. All of the people mentioned above, and the many who I have not been able to list here, built this book. The faults of it are mine. Whatever merit it has is theirs. I hope it is worthy of them.

1 Introduction The (Nonlegal) Role of States in Constitutional Maintenance

should an unwarrantable measure of the federal government be unpopular in particular States . . . the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to cooperate . . . the embarrassments created by legislative devices . . . would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. —James Madison, Federalist 46

each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. —Resolution of Kentucky, 1798

It will be an example of a temperate mode of opposition in future and similar cases. —Thomas Jefferson, Letter to James Madison, December 24, 1825

The quotations above all reference an underappreciated and understudied aspect of American constitutional politics: efforts by subnational governments to influence constitutional meaning outside of a conventional legal framework. The Constitution anticipates certain forms of state participation in constitutional change. States must play a role in the Constitution’s amendment. Article III anticipates lawsuits by states and creates opportunities for constitutional challenges. Federalism itself was considered one of the structures that would check the national government should it attempt to usurp power or violate the rights of the people. And, of course, federalism was injected into the structure of the federal government such that there were multiple political channels for state interests to be both protected and advanced. Yet, all of these pathways for federalism’s influence flow from the text of the Constitution and reflect its juridic understanding. Under a juridic framework, the Constitution is a legal document and higher law. It creates rights,

2  Introduction restrictions, and privileges subject to enforcement. Such a notion is well established in American thought. In Federalist 78, Alexander Hamilton wrote, “A constitution is in fact, and must be, regarded by the judges as a fundamental law.”1 Chief Justice John Marshall endorsed this vision in Marbury v. Madison claiming the Constitution must be “the fundamental and paramount law of the nation.”2 As law, the Constitution becomes subject to law-interpreting institutions. In other words, the Constitution becomes the subject of lawyers and judges for it “belongs to them to ascertain its meaning.”3 Or, as Marshall wrote, “It is emphatically the province and duty of the judicial department to say what the law is.”4 As such, authoritative interpretation comes largely through adjudication and judicial decision-making. Perhaps not surprisingly, the Supreme Court itself has embraced and promoted this understanding and noted that not only does the Court have the rightful authority to interpret the Constitution but that these interpretations are definitive.5 Once the Court speaks, other public officials and, indeed, the public at large must follow its decree. A good deal of scholarly focus on constitutionalism adopts this perspective. Political scientists took to heart Justice Charles Evans Hughes famed quip that the Constitution means what the Court says it means.6 Scholars demonstrate that ideology predicted a significant amount of the justices’ voting and that constitutional meaning would, by and large, reflect the ideological preferences of a majority of the Court.7 Over time, powerholding parties would be able to capture the Court such that rather than acting in countermajoritarian ways, courts were much more likely to serve as partners of the dominant national coalition.8 Scholars built on this insight by noting that courts can serve important functions for governing coalitions that increase political commitments to judicial review.9 Understanding constitutional change requires careful attention to partisan efforts to entrench regime preferences on the Court.10 Scholars have also noted that in a thickened political context sweeping constitutional change does not flow exclusively from electoral victories that bring sympathetic judges. Controlling the law, instead, requires a syncing of both the ideological predisposition of judges with the intellectual resources necessary for judges to produce desired change.11 To understand legal change in its fullness, one must attend to legal networks that aid both with the placement of ideologically aligned judges and generation of intellectual resources that legitimate legal arguments capable of disrupting the legal status quo and entrenching new commitments. Attending to the “supply side” of legal change casts important light on cultural and intellectual resources and how these are legitimated in a legal context. Reva Siegel observes that social movements alter constitutional understanding by changing what people believe the Constitution and its commitments mean.12 Ken Kersch argues that the construction and reconstruction of constitutional memory, so-called “constitution-talk,” shapes the very political terrain that makes some arguments appear more faithful to the Constitution than others.13 Jack Balkin details how constitutional logics move from “off the wall” to “on the wall” through a process of legitimation.14

Introduction  3 These scholars stress the importance of looking outside of judicial selection and judicial decisions to understand legal and constitutional change. Constitutional scholars have also long noted the courts are but one actor among many that help give the Constitution meaning. Congress, the president, interest groups and social movements, and even the people themselves contribute to the construction of constitutional logics. Many of these contributions do not fit comfortably in a juridic framework. Constitutional constructions that emerge through the working out of ordinary politics stem not from the courts but through the political necessity of making new and/or underdeveloped areas of the political system functional.15 Even where the Supreme Court renders a decision, what leads up to and follows the decision is typically a dialogue among many institutions and actors that constitutes new meaning over time.16 Political parties and social movements also engage in the construction and advancement of constitutional visions that, arguably, shape both popular and elite perspectives.17 These works help elucidate that conventionally political institutions can affect the development of constitutionalism, inclusive of constitutional law, because of the relationship between interpretation and culture. As Jack Balkin observes, Americans live in a constitutional culture, and that constitutional culture . . . changes and evolves. A constitutional culture consists of the beliefs of members of the political community about what their constitution means. . . . [But a] constitutional culture is not a monolith. It is a distribution of different views, as well as a distribution of different understandings about whether these views are in or out of the mainstream.18 What this suggests is that constitutional culture accommodates multiple constitutional interpretations. What makes one interpretation more authoritative than another has less to do with the interpretive method than the constitutional politics and authority that legitimates it.19 This turns our attention away from constitutional interpretation alone and to a more robust intersection of the institutions and coalitions that enable constitutional meaning to emerge, be sustained, and to be disrupted. States play important roles as the source of interpretation, the source of coalitions that back certain interpretations, and as legitimators of meaning. This, of course, is not mere happenstance but an important element of Madisonian design and thought, which envisioned states as vehicles of constitutional maintenance.20 States could perform this function because they were “constituted with different powers and designed for different purposes” than the national government and acted as “different agents and trustees of the people.”21 The national and state governments would be autonomous with their “own exclusive area of authority and jurisdiction, with few powers held concurrently.”22 This autonomy enabled the states to serve as a check on the newly created national government. As Martin Redish observes, “a federal system reduces

4  Introduction the likelihood that the superior governmental level will be able to control all aspects of its citizens’ lives.”23 In effect, then, what the new system created was “the disposition and faculty of resisting and frustrating the measures of each other.”24 The means of this resistance are particularly relevant to an examination of state influences on American constitutionalism. Madison envisioned a system in which national laws deemed “unwarrantable” or “repugnan[t]” by state officials and citizens would include “perhaps refusal to cooperate with the officers of the Union.”25 States would then employ “legislative devices” that would be “signals of general alarm.” At this point, states would coordinate and “[p]lans of resistance would be concerted.” Madison believed that whatever constitutional vision might emerge from these devices and signals would more naturally appeal to “the sentiments and sanctions of their common constituents” because “the first and most natural attachment of the people will be to the governments of their respective States.”26 Modern scholars of American federalism agree that federalism is structured such that “intrusive measures of importance . . . [meet with] opposition grounded in resistance within the states.”27 Moreover, even as the strength of states has varied across time, there are certain enduring features in federalism’s constituted structure that make states an enduring source of influence on constitutional meaning. First, there are a series of inter-level relationships and interdependencies that “hinted at a future field of both intergovernmental conflict and ‘mutual forbearance.’ ”28 Overlapping authority, concurrent powers, and joint administration ensured that both federal and state governments would have vested interests in how certain provisions in the Constitution would be construed. Second, the Constitution lays out the purpose for which it was created but left numerous operational questions unaddressed or unclear. Given that federal and state governments alike were tasked with providing for the general welfare, ensuring republican government, and protecting popular sovereignty, there was ample room for competing visions of how these ought to be accomplished. Third, by the time of the Constitution’s ratification, a robust tradition of subnational constitutional interpretation already existed. As Mary Sarah Bilder details, the colonies regularly passed laws that diverged from English law so as to be responsive to local circumstances but only so far as to avoid being repugnant to the broader cultural and legal understanding of the constitutional principle at stake. Thus, by the time the colonies were states ratifying the new Constitution, there exists an interpretive tradition “to construct the skeleton of federalism and mold early constitutionalism in the United States.”29 Scholars have increasingly attended to the states as important sources of constitutionalism. John Dinan argues that states and their constitutions are robust sources for the articulation and development of constitutional principles, principles that are regularly in tension with prevailing national traditions.30 Sanford Levinson builds on this insight and argues that to better understand what types of structural reforms are possible, Americans must turn to state constitutions, which have been an important

Introduction 5 source of innovation and practice.31 Emily Zackin observes that attention to state constitutionalism reveals a “sustained positive-rights tradition” quite distinct from the national negative rights tradition.32 These scholars paint a picture of constitutionalism that is democratically accessible at the subnational level, which is consistent with studies that portray states as facilitating, challenging, and transmuting popular sovereignty.33 Like the studies cited above, this study is located at the intersection of federalism and constitutionalism. Such a focus draws attention to how states have employed existing constitutional resources to accommodate or drive constitutional change and, in so doing, both change the institutional form of subnational participation in constitutional politics and create, change, or destroy resources for the next iteration of the practice. As such, this study fits comfortably in American political development’s traditional concern with determining “what is fixed, what is fluid, and when.”34 As Charles Beard observed, “institutions are composed of operatives who promote change, often in the course of resisting it from others.”35 Subnational practices are most often efforts at disruption—an intervention to push back and alter the prevailing constitutional order. Any study of these practices must be concerned with disorder—efforts to change the location of authority and shifts in constitutional thinking.36 Specifically, the disruptive efforts tend to focus on the following dimensions.37 First, all of the cases herein attempt to challenge a specific constitutional interpretation prevailing nationally. In other words, a policy is created nationally that relies on a particular understanding of what the Constitution means. This understanding may involve one or more of the national departments of government. Second, a number of the cases involve constitutional politics. States not only assert meaning but, in several cases presented herein, they do so to affect coalition politics in the hope of creating a powerholding coalition that will support and realize the proffered constitutional vision. Third, several of the cases herein attempt to disrupt constitutional authority by asserting state-based authority to settle constitutional meaning. The extent of authority claim varies but these efforts to challenge the hierarchy of authority tend to push statebased practices away from their Madisonian foundations and toward more coercive means of constitutional settlement. Throughout the book, we return to the dimensions of interpretation, politics, and authority to understand what was fixed, what was fluid, and what the developmental legacy of each episode was. Notably, subnational efforts to disrupt and maintain the constitutional order occur on the terrain of language and culture. Ideas are debated, drafted, resolved, and communicated in an effort to secure elite and popular allies. States, then, become important actors in the establishment, maintenance, and disruption of “discursive regimes.”38 As Ken Kersch observes, “[t]he objective of political and constitutional challengers is to construct an opposition that will displace the dominant discursive regime with their own as a means of institutionalizing or entrenching their coalition.”39 States participate in this process as both agents that link ideas to constitutional language and conduits to give voice to emerging “associative chains” of meaning.40 This focus on state influence on

6  Introduction culture through language helps locate an important source of influence in the development of ideas. The effort to alter the underlying constitutional culture, thereby affecting interpretation, politics, and authority, often involve political entrepreneurship. State-based constitutional practice often requires employing creative efforts to alter the meaning and force of federalism to compel change. As such, this study touches upon actors exploiting “opportunities for innovation made possible by the routine functioning of complex institutions.”41 The multiple governmental access points created by federalism provide new venues and locations for linguistic and ideational innovations that form webs of meaning. By committing to federalism, the American constitutional system has created more space for innovation in constitutional interpretation, politics, and authority. To understand the role states play in the development of constitutionalism, the book presents case studies that range from origins to contemporary examples. Importantly, the focus of the study is largely on state resolutions rather than state laws. Several good studies of the ways states use the formal law to protect their power and interests already exist.42 Moreover, this study is interested in the ways the process envisioned by Madison can influence constitutionalism culturally and electorally. To explore these efforts, Chapter 2 details the establishment of state-based practices by turning first to its origins in colonial practice. Seeking to contest Parliamentary authority asserted through the Stamp Act, colonial assemblies—led by Virginia—resolved their constitutional objections and began working in concert to maintain the balance of authority that colonialists believed was jeopardized by the new tax. What developed was the practice of legislatures resolving their understandings of constitutional meaning in an effort to mobilize support against the offending legislation. Following the ratification of the US Constitution, states continued this practice. Madison seized on the function states could perform to address the unsolved problem of arbitrating contests of authority under the new constitution. The Virginia and Kentucky resolutions of 1798 represent Madison and Jefferson’s effort to marry constitutional maintenance with the existing tradition of legislative protest. The cases in this chapter reveal a practice that channeled popular authority, established specific interpretations of constitutional provisions, and helped establish a political coalition committed to that interpretation. In effect, states emerged as a vibrant source of constitutionalism and a functional source of constitutional maintenance. Chapter 3 explores the first major shift in the practice. During the embargo crisis, Federalists who had opposed the actions of Virginia and Kentucky in 1798 embraced state-led resistance. Towns, cities, and states largely in New England remonstrated against the embargo and the authority granted by Congress to the executive to enforce it. Much of this effort was consistent in form with the Virginia and Kentucky resolutions. However, Connecticut raised new and challenging questions about constitutional authority when it attempted to move the practice away from protest and mobilization and toward the obstruction by ordering state officials not to enforce the law. The next several decades

Introduction 7 saw efforts, largely in the South, to change state constitutional authority such that states would enjoy a veto over national laws. South Carolina not only advocated for Calhounian nullification but implemented the theory by claiming to nullify the 1828 tariff. But states sympathetic to South Carolina’s reading of the Constitution as prohibiting laws beneficial to only one section of the country were hostile to its claims of authority upon which nullification rested. Without a coalition willing to support the new claims of authority, nullification was rejected, leaving the practice with a legacy of illegitimacy. Yet, state-based practices persisted and states continued to cite the authority to protect constitutional commitments upended by Congress and the Supreme Court. Specifically, in the name of protecting the habeas rights of free blacks, northern states contested the federal fugitive slave laws. States also contested pro-slavery decisions like Dred Scott v. Sandford and Ableman v. Booth. In doing so, states attempted to challenge both the prevailing interpretation and also the authority of national institutions to impose these settlements upon them. Rather than maintaining the Constitution and union, states arguably exacerbated tensions but I argue this makes Madisonian maintenance no different than other forms of maintenance, like judicial review, that failed under the weight of slavery. Conventionally, Madisonian state practices, so vigorous before the Civil War, are treated as largely disappearing in the wake of the Civil War. Chapter 4 reveals that far from being abandoned, such practices return almost immediately. But this is not to say they were unaffected by nullification, secession, and war. These practices were closely associated with rejected theories of constitutional authority such that, when these practices became salient, they took new forms that attempted to avoid nullification’s legacy. Nowhere was this more clear than with the response of southern states to Brown v. Board of Education. I argue that in passing resolutions of interposition, the southern states attempt to avoid novel claims about constitutional authority and, instead, focus on theories of interpretation. In the process, the anti-Brown resolutions make originalist arguments that are initial steps in transmuting conservative racial policy into claims that the Constitution ought to mean what it meant when ratified and forming a political coalition that was ultimately successful in limiting the force and scope of Brown. Despite the legacy of illegitimacy associated with nullification and interposition and the rise of judicial supremacy, state legislative efforts to affect constitutional meaning proliferate in the twenty-first century. Chapter 5 details how these efforts appear consistent with Madisonian practice and, in the case of the response to the USA PATRIOT Act, play part of a role in the constructive process that produces reform in light of constitutional objections raised by states. However, some state actions drift to more coercive forms, spurred on by conservative interest groups. Given the legacy of nullification and interposition, arguments for state authority rest heavily on contemporary Supreme Court decisions on the Tenth Amendment. In other words, modern state authority to interpret the Constitution and resist federal law it judges unconstitutional depends upon the legitimacy of Supreme Court doctrine rather than something

8  Introduction more dubious like social compact theory. Thus, contemporary practice both confirms judicial supremacy and challenges the finality of the constitutional judgment of national institutions. Additionally, lobbying by national interest groups for and their promotion of state action raises questions about whether this process still produces bottom-up constitutionalism or whether it simply reflects national efforts to find points of access to raise constitutional concerns. Much of this study occurs at the intersections of political development and constitutionalism. Chapter  6 concludes by reflecting on each and offering thoughts about the viability of state-based maintenance practices in contemporary American politics and its implications for democratic constitutionalism.

Notes 1 Alexander Hamilton, “Federalist 80,” in The Federalist Papers, ed. Clinton Rossiter (New York: Penguin Putnam, 1961), 435. 2 5 U.S. 137 (1803), 177. 3 Hamilton, “Federalist 80,” The Federalist Papers, 435. 4 5 U.S. 137 (1803), 177. 5 “[T]he federal judiciary is supreme in the exposition of the law of the Constitution,” Cooper v. Aaron, 358 U.S. 1 (1958). 6 “We are under a Constitution, but the Constitution means what the judges say it is, and the judiciary is the safeguard of our liberty and property under the Constitution.” Charles Evans Hughes, “Speech Before the Elmira Chamber of Commerce, May  3, 1907,” in Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908 (New York: G.P. Putnam’s Sons, 1908), 133–46, 139. 7 Jeffrey Segal and Harold Spaeth, The Supreme Court and the Attitudinal Model Revisited (New York: Cambridge University Press, 2002). 8 Robert Dahl, “Decision-Making in a Democracy: The Supreme Court as National Policy-Maker,” Journal of Public Law 6, no. 2 (1957): 279. 9 Stephen M. Engel, American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power (New York: Cambridge University Press, 2011); Keith Whittington, “ ‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court,” American Political Science Review 99, no. 4 (2005): 583–96; Howard Gillman, “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1871–1891,” American Political Science Review 96, no. 3 (2002): 511–24; Mark A. Graber, “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary,” Studies in American Political Development 7 (1993): 35–73. 10 Jack Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law Review 87, no. 6 (2001): 1045–104. 11 Steven M. Teles, The Rise of the Conservative Legal Movement: The Battle for Control of the Law (Princeton: Princeton University Press, 2008); Charles Epp, The Rights Revolution (Chicago: University of Chicago Press, 1998). See also, Bradley D. Hays, “The Curious Case of School Prayer: Political Entrepreneurship and the Resilience of Legal Institutions,” Politics and Religion 5 (2012): 394–418. 12 Reva B. Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA,” California Law Review 94 (2006): 1323. 13 Ken I. Kersch, “The Talking Cure: How Constitutional Argument Drives Constitutional Development,” Boston University Law Review 94 (2014): 1083–108.

Introduction 9 14 Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Cambridge: Harvard University Press, 2011), 179–82. 15 Keith E. Whittington, Constitutional Constructions: Divided Powers and Constitutional Meaning (Cambridge: Harvard University Press, 1999). 16 Louis Fisher, Constitutional Dialogues: Interpretation as Political Process (Princeton: Princeton University Press, 1988). 17 Mark A. Graber, “Federalist or Friends of Adams: The Marshall Court and Party Politics,” Studies in American Political Development 12, no. 2 (1998): 229–66; Howard Gillman, “Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism,” in The Supreme Court & American Political Development, ed. Ronald Kahn and Ken I. Kersch (Lawrence: University Press of Kansas, 2006), 138–68; Gillman, “How Political Parties Can Use the Courts,” 511–24. 18 Balkin, Constitutional Redemption, 178. 19 For an overview of constitutional interpretation, politics, and authority, see Mark A. Graber, A New Introduction to American Constitutionalism (New York: Oxford University Press, 2013), 65–139. 20 Jonathan Gienapp, “How to Maintain a Constitution: The Virginia and Kentucky Resolutions and James Madison’s Struggle with the Problem of Constitutional Maintenance,” in Nullification and Secession in Modern Constitutional Thought, ed. Sanford Levinson (Lawrence: University Press of Kansas, 2016), 53–90. 21 James Madison, “Federalist 46,” The Federalist Papers, 262. 22 Daniel Elazar, The American Partnership: Intergovernmental Cooperation in the United States (Chicago: University of Chicago Press, 1962), 22. 23 Martin H. Redish, The Constitution as Political Structure (New York: Oxford University Press, 1995), 25. 24 Madison, “Federalist 46,” The Federalist Papers, 263. 25 Ibid., 265. 26 Ibid., 262. 27 Herbert Wechsler, “The Political Safeguards of Federalism: The Role of States in the Composition and Selection of the National Government,” Columbia Law Review 54 (1954): 543–60, 558. 28 David B. Walker, The Rebirth of Federalism: Slouching Toward Washington, 2nd ed. (New York: Chatham House Publishers, 2000), 63. 29 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2008), 1. 30 John Dinan, The American State Constitutional Tradition (Lawrence: University Press of Kansas, 2006). 31 Sanford Levinson, Framed: America’s 51 Constitutions and the Crisis of Governance (New York: Oxford University Press, 2012). 32 Emily Zackin, Looking for Rights in All the Wrong Places: Why State Constitutions Contain American’s Positive Rights (Princeton: Princeton University Press, 2013), 3. 33 See Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (Lawrence: University Press of Kansas, 2016); Christian Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008); Elaine Scarry, Rule of Law, Misrule of Men (Cambridge: MIT Press, 2010). 34 Kersch, “The Talking Cure,” 1086. 35 Charles A. Beard, The Supreme Court and the Constitution (New York: Macmillan Company, 1912), 76. 36 Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004), 123. 37 Special thanks to Mark Graber for helping me see state practices on these constitutional dimensions. See Graber, A New Introduction to American Constitutionalism.

10  Introduction 38 Victoria Hattam and Joseph Lowndes, “The Ground Beneath Our Feet: Language, Culture, and Political Change,” in Formative Acts: American Politics in the Making (Philadelphia: University of Pennsylvania Press, 2007), 199–222, 203. 39 Kersch, “The Talking Cure,” 1093. 40 Hattam and Lowndes, “The Ground Beneath Our Feet,” 203. 41 Adam Sheingate, “The Terrain of the Political Entrepreneur,” in Formative Acts: American Politics in the Making (Philadelphia: University of Pennsylvania Press, 2007), 13–31, 21. 42 See John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking (Norman: University of Oklahoma Press, 2009); Jessica Bulman-Pozen and Heather K. Gerken, “Uncooperative Federalism,” Yale Law Journal 118, no. 7 (2009): 1256–310.

2 Alerting the People The Origins and Early Practice of State Maintenance

Early American constitutional practice was marked by interpretive pluralism and a corresponding flat interpretive hierarchy. Given the absence of an institution vested with the explicit authority to definitively resolve matters of constitutional dispute, most institutions were active in both giving meaning to the Constitution and asserting some measure of authority as its rightful interpreter. Washington’s cabinet engaged in notable debates over both interpretation—what the Constitution’s text would prohibit and sustain—and authority, to settle constitutional disputes.1 In the first Congress, the threshold question for most bills “was understood to be whether Congress had the power to enact it.”2 Judicial assertions that it must act when faced with a violation of the fundamental law of the Constitution were common, if less clearly definitive.3 State courts, too, asserted their authority to enforce the Constitution, even if it meant striking down federal law to protect constitutional limitations.4 And, most pertinent to this study, state legislature regularly and vigorously weighed in on constitutional concerns and voiced both opposition and support for the exercise of national power. By the time the US Constitution was ratified, states had decades of interpretive experience that was practiced and refined during the colonial period. As legal historian Mary Sarah Bilder observes, assemblies need to “consider [their] particular circumstances” in the creation of their laws and that a practice developed in which assemblies could diverge from English law in the creation of local laws up to the point of repugnancy.5 In effect, this required colonial assemblies to interpret principles of English constitutionalism in the ordinary course of their business. Moreover, nowhere was the interpretive work of colonial assemblies more public and explicit than when it passed “resolutions, petitions, memorials, and remonstrances” that expressed “official statement[s] of belief” on constitutional concerns.6 Colonial resolves took on a new prominence following the passage of the Stamp Act of 1765. Nine colonies passed resolutions following its enactment. The resolutions passed in response to the Stamp Act asserted interpretations of English rights and the limits on Parliamentary authority. The first of these, passed by the Virginia House of Burgesses, “asserted the right of the inhabitants of Virginia to all the privileges of Englishmen” and

12  Alerting the People declared “the Taxation of the People by themselves, or by Persons chosen to represent them” was a “distinguishing Characteristick [sic.] of British Freedom, without which the ancient Constitution cannot exist.”7 Pennsylvania resolved “That the taxation of the people of this province, by any other persons whatsoever . . . is UNCONSTITUTIONAL, and subversive of their most valuable rights.”8 Other colonies made similar declarations about their understanding of the constitutional principles at stake and their obligations—or lack thereof—in light of the perceived violation. The effort not only helped to sharpen colonialist understandings of their constitutional principles but they helped excite and legitimate popular resistance to the Stamp Act, which effectively made it unenforced and unenforceable. The controversial acts that followed the Stamp Act were met with similar legislative resolves. Communicating legislative opinion through resolves was well established before even the Stamp Act yet the Virginia Resolves of 1765 should be understood as an entrepreneurial act. By the time the House of Burgesses considered the Stamp Act, many northern colonies more directly impacted by the tax, thanks to their less agrarian economies, had already ratified the tax without significant debate.9 The House of Burgesses itself was controlled by a coalition of eastern Tidewater aristocrats who were deeply loyal to the Crown. Despite these circumstances, Patrick Henry, serving in his first year and not yet 30 years old, managed to employ the legislative resolve to create a shared constitutional understanding of Parliamentary taxing authority in the colonies and mobilize political support to defend that vision. Henry’s introduction of five resolves occurred only at the end of the legislative session and after many members of the Tidewater coalition had already left to return home. This gave the minority coalition of western farmers and frontiersmen something close to parity in the chamber. Henry saw the act of constitutional interpretation as affecting coalition politics. By emphasizing that this tax by Parliament was a violation of internal colonial control and, thereby, a violation of fundamental rights, Henry believed that it could expand the coalition in opposition. This was particularly needed because, as Henry acknowledged, “[a]ll of the colonies, either through fear, or want of opportunity to form an opposition . . . had remained silent.”10 The resolves themselves were remarkable for their mixture of widely held constitutional values and new assertions that were, at best, nascent ideas that tapped into a growing sense of autonomy and self-governance. The resolves asserted the constitutional claim that the colonists possessed the right of the people of Great Britain. This was hardly controversial and would not have made a ripple except for Henry’s subsequent moves. He then claimed that the “distinguishing characteristic of British freedom” was that taxation could only be enacted by the people or their representatives. Given the absences of colonial representation in Parliament, this left “the sole exclusive right to lay taxes” with the “General Assembly” of each colony. Anything else “destroys American freedom.”11 Denying Parliament’s authority to tax was

Alerting the People  13 new in form but tapped into an underlying, if underdeveloped, constitutional theory that Parliament could legislate for the whole empire in any way that concerned the common interests of all the members of the empire . . . but [the colonists] denied that Parliament’s legislative authority extended either to the internal polity of the colonies or to taxation.12 Henry, then, articulated a limited conception of Parliamentary legislative authority as it applied to internal taxes. The ideas were spread through the publication of resolves, which were initiated by Henry; first in the Virginia Gazette and then by other papers across the colonies. One assembly after another took up similar resolves. Some states moderated the tone but others were even more strident. Pennsylvania declared taxation by anyone other than the people’s “representatives in assembly . . . UNCONSTITUTIONAL, and subservice of their most valuable rights.”13 Massachusetts asserted its interpretation of British authority by noting any act made by any body “other than the General Assembly of this province, imposing taxes on the inhabitants, are infringements of our inherent and unalienable rights, as men and British subjects.”14 Rhode Island arguably went the furthest by urging disobedience to the unconstitutional tax.15 By the time the Stamp Act had been rescinded, colonial assemblies had emerged in a new role: articulators of an emerging theory of constitutional authority. Not only did this help unleash a wave of creative constitutional energy that ultimately resulted in a constitutionalism premised on popular sovereignty but it also helped begin the process of relocating authority under British rule. As historian Jack P. Greene observes, these developments had led . . . irreversibly in the direction of increasing authority in the hands of the local legislatures and greater restrictions on the prerogatives of the crown. . . . [T]he right of the inhabitants in the peripheries had gradually been secured against the power of the center.16 As part of this constitutional authority, colonial elites did not view the actions as illegal but as an act of constitutional maintenance. Appearing before Parliament, Ben Franklin went to some pains to distinguish the legitimacy of the legislative action from the illegitimacy of mob rule by explaining that the assemblies “only peaceably resolved what they take to be their rights.”17 And, as the new constitutionalism would assert, the right derived from being representatives of the people.18 With each new British tax, the prominence of this role increased. Following the passage of the Townshed Acts, John Dickinson, who had led the antiStamp Act resolve effort in Pennsylvania, published what became something of a blueprint for colonial resistance to Parliamentary usurpation. He praised local assemblies for their role in the Stamp Act’s repeal and declared that such

14  Alerting the People petitioning for redress was the first step in resistance. Not only did it have the benefit of colonists “speak[ing] of rights” but it promoted “the cause of liberty” in a manner that avoided being “sullied by turbulence and tumult.” Whether or not this was true, the colonial assemblies gave voice to emerging constitutional understandings by circulating their opinions to one another to create consensus and gain greater authority.19 And this pattern continued with colonies passing resolutions following not just new taxes but addressing the Treason Resolution, introduction of a standing army in Boston, the creation of courts of inquiring, among others. The colonists viewed the practice as so vital to the protection of their constitutional rights that they institutionalized the practice. At the behest of the Virginia House of Burgesses, the other twelve colonies established committees “to cooperate in matters of common concern.”20 Nor was it the case that these actions were seen as merely symbolic. Responding to the wave of protest and the broadsides against the British understanding of its constitutional authority, Secretary of State for the American colonies Wills Hill, Earl of Hillsborough, ordered colonial governors to dissolve the assembly if they appeared ready to “give any countenance” to one such resolve by Massachusetts.21 Enforcement of this epistle was mixed but even when the assembly was dissolved, they found other ways of meeting and passing a resolution anyway.22 British officials rightly saw the constitutional vision taking form through legislative resolves doing significant damage to “the temper of America towards Great Britain.”23 And this, of course, led to an explosion of constitutional creation as the newly formed states crafted their own constitutions and played a role in the ratification and modification of two national constitutions. Even a brief review of colonial practices during the 1760s and 1770s reveals colonial legislatures as major forces in shaping American constitutionalism. Colonial assemblies articulated their understanding of limited Parliamentary authority; first on taxation and, later, on its general authority on internal legislation and a broader set of colonial rights. Not only did these resolves define the terms of conflict but they formed a foundation employed when the colonies-turned-states took up the drafting of their own constitutions. But, like so much of the colonial experience, the creation of new constitutions did not destroy past traditions, experiences, practices, and expectations but rather layered on top. Orren and Skowronek describe this phenomenon as intercurrence and note that the “nonsimultaneity in institutional creation speaks to . . . out-of-synch governing arrangements.”24 The new order partly reallocated authority, partly affirmed state authority over internal governance, created areas of concurrent authority, and employed a new and contested understanding of sovereignty. And it did so without specifying a process—or at least an unambiguous process—or institution with the authority to resolve disputes over the boundaries of power. Thus, early American politics had to grapple with where the lines of authority would be drawn and who would draw them. Given their experience, states were one of the players in the process of resolving disputes.

*****

Alerting the People 15 Before the end of Congress’s first legislative session, the law that authorized federal assumption of state debts had provoked a constitutional challenge from state legislatures. The cost of the War for Independence had left the nation heavily indebted without a means of fully settling those accounts because of the lack of taxing authority in the national government under the Articles of Confederation. The issue of debt repayment was one of the central motivating factors in the creation and adoption of the Constitution.25 Alexander Hamilton as Secretary of the Treasury crafted a plan for rehabilitating the public credit of the United States by ensuring the payment of current debts and thereby improving the nation’s credit and enabling future borrowing. Hamilton’s Report on Public Credit proposed full payment of foreign debt and refinancing of domestically held debt. There was little constitutional controversy over the payment of national debts given that Article VI made good existing national debts against the new government and Article I, Section 8 authorized Congress “to pay Debts” and “borrow Money.” However, Congress was not similarly empowered to assume state debts and the constitutional question of nationalizing state debts accrued during the revolution touched upon the concern raised by Anti-Federalists that little prevented the national government from exercising powers it was not explicitly given. Although the debate over the assumption of state debt did not animate the states to the same degree as later episodes, the conflict over debt assumption revealed that states would contest national claims of interpretation and authority when they threatened their particular constitutional vision. Congressional support for national assumption of state debts broke according to the financial position of the respective states. Representatives from states with little or no debt, largely concentrated in the South, opposed assumption whereas the heavily indebted states, largely in the northeast, favored it.26 In fact, debt so disproportionately affected the North that “[o]ver 4/5ths of the national debt was owing to citizens living north of the Mason and Dixon line and, except for South Carolina, most of the state debts were likewise concentrated in the North.”27 The substance of the opposition took two forms. First, opposition lawmakers noted how the policy would renew the tax burden on citizens of states that had already relieved their debt burdens through high taxes and other public means of producing state revenue. In effect, the new tax burden would effectively redistribute wealth from the low-debt South to the high-debt North, which raised the specter that this was interested legislation and contrary to the general welfare. Second, because of the lack of textual support, debt assumption was justified through broad constructions of Article I, Section 8. In House floor debate, Representative Elbridge Gerry (MA) explained Congress are authorized to lay and collect taxes, &c. to pay the debts, and provide for the common defense and general welfare of the United States. If Congress have the power to pay debts, they have an implied right to examine what those debts are, and if they have been contracted for the

16  Alerting the People common defence there is no doubt but they are the debts of the United States; but supposing Congress unauthorized by the powers cited, they are, by the general clause, giving to Congress powers to make all laws necessary and proper for carrying into execution all the powers of the Constitution, or of any department or officer under it, fully authorized to judge of and determine the debts of the United States.28 Opponents, however, countered that Congress was limited to pay the debts of the United States, not the several states. Any construction that empowered the federal government beyond strict textual ties created problems for limited national authority. As Representative Michael Stone (MD) questioned, If Congress say they want money for some purpose which they conceive to be salutary to the United States, but which, at the same time, is not a constitutional object of their power, have they a right to levy duties for such purposes? And if they have, where is the limit to which they may not go? Or where is the boundary by which they are restrained?29 The combination of fiscal and constitutional concerns was sufficient initially to derail debt assumption. The House voted down the legislation four times and Hamilton’s plan for fiscal centralization appeared in jeopardy. However, Hamilton enlisted Secretary of State Thomas Jefferson to broker a deal with the Virginia and the, hitherto divided, Pennsylvania delegations. A modification to Hamilton’s plan emerged out of these negotiations: states that managed to significantly reduce their wartime debts were to receive a grant from the federal government. Virginia, North Carolina, and Delaware received $3,500,000, $2,400,000, and $200,000 respectively.30 James Madison argued that these payments helped alleviate “some of the objections and particularly of its gross injustice to Virginia.”31 Additionally, the national seat of government was to be moved from New York City to Philadelphia for ten years and, thereafter, to a permanent district on the Potomac River. Maryland and Virginia, two opposition states, would host the nation’s capital. With this compromise in place, the federal assumption of state wartime debt was passed. Virginia was the first to react. In November and December of 1790, the Virginia House of Delegates passed resolutions, agreed to by the Senate, that objected to the assumption of state debts, largely on constitutional grounds. Its first objection would become a staple of state resolutions protecting a federal law in Antebellum America: the law was “repugnant to the constitution of the United States, as it goes to the exercise of a power not granted to the general government.”32 The resolution quoted from Article VI and explained that it amounts to a constitutional ratification of the contracts respecting the state debts in the situation in which they existed under the confederation, and resorting to that standard . . . the rights of states as contracting parties with the United States, must be considered as sacred.33

Alerting the People 17 But Virginia went beyond federalism in its analysis by arguing the assumption of state debt violated the legitimate exercise of government authority by passing interested legislation that benefitted particular sections of the country. Virginia not only made the obvious point that the law was “highly injurious to those states, which have by persevering and strenuous exertions, redeemed a considerable portion of the debt incurred by them during the late war.” It also argued that it created a system that “prostrate[ed] . . . agriculture at the feet of commerce.”34 Just a few years hence, Hamilton had argued that the Congress would be run by republican legislatures who understand “those principles [of political economy] best [and] will be least likely to resort to oppressive expedients, or to sacrifice any particular class of citizens to the procurement of revenue.”35 Madison further elaborated on this point that “the nature of just and constitutional laws” would “restrain the House of Representatives from making legal discriminations in favor of themselves and a particular class of society.”36 From Virginia’s perspective, republicanism had failed to prevent interested and unconstitutional legislation such that it was obligated, much as Madison had predicted in Federalist 44, “to shield [Virginians] from their encroachments, or at least to sound the alarm.”37 Anti-Federalists had voiced deep reservations regarding the absence of a “constitutional check on the actors of the general government” and nowhere was this more decisive than on the taxing power. What Virginia, and to a lesser extent North Carolina, attempted to do was fashion a means of ensuring that any conflicts regarding the lines of authority would leave both states and the federal government intact. Virginia attempted this through two moves. First, in the closing section of its final resolution, it argued, As guardians then of the rights and interests of their constituents, as sentinels placed by them over the ministers of the federal government, to shield it from encroachments . . . they can never reconcile . . . silently to acquiesce.38 While not belaboring the point, the assertion that Virginia was “over” officials of the new government is notable as it echoed claims of state sovereignty made during the ratification debates. As Luther Martin argued about the nature of the new government “a federal government is formed by the States, as States that is in their sovereign capacities, in the same manner as treaties and alliances are formed.”39 The North Carolina legislature was more specific on this point declaring that the assumption of state debts was “an infringement on the sovereignty of this State” because it occurred “without their particular consent.”40 Invoking sovereignty and suggesting a hierarchy of authority were two of the major foundational elements of social compact theory and can be interpreted as an effort to reassert state sovereignty and independence that was “the old and venerable fabrick, which sheltered the United States from the dreadful and cruel storms of a tyrannical British ministry.”41

18  Alerting the People Yet, interpreting this as the rise of state sovereignty minimizes an important element in the documents that sought to maintain the new and uncertain balance between the federal and state governments. Rather than resting on the assertion that the law was “repugnant to the constitution” and, therefore, void, both Virginia and North Carolina turned to the “justice and wisdom of Congress” to repeal the act.42 Much as the House of Burgesses and other colonial assemblies had stated that the remedy to unconstitutional legislation rested with Parliament, so too did the state legislatures rely on Congress to remedy the repugnant law. Although it may have been the case that these states hoped that other states would rally as they had previously, there was no explicit call to concert action against the national government. Given the failure of the effort, it is worth noting that many later efforts were more intentional in trying to rally other states and more dialogic in their approach.

***** In the first decade under the new constitution, resolutions like those of Virginia and North Carolina were common. Several states passed resolutions in response to the Supreme Court’s decision in Chisholm v. Georgia.43 Georgia governor Edward Telfar summed up well the understanding of state obligations when he stated it “rests with state legislatures to act thereon as circumstances may dictate.”44 Other states, too, protested early Court decisions that were viewed as imposing on state sovereignty.45 New taxes continued to draw the protests of state legislatures. The country’s first national excise tax led Pennsylvania and North Carolina to declare the tax unconstitutional.46 These and other state resolutions made it clear that the primary motivation was constitutional, not economic. As historian Jacob E. Cooke notes, “Time and again their remonstrances emphasized the same point: excise taxes were inimical to the freedom which should characterize free society.”47 What all of this state activity reveals is that the practice was akin to judicial review prior to Marbury v. Madison: frequent but part of an interpretive politics more pluralistic than centralized.48 The practice was more widespread than conventionally appreciated and contained important ideas in the development of early American constitutionalism such as republican conceptions of taxation for the general welfare and protection of interests that were local in nature.49 These practices built upon a colonial legacy but they did so in the absence of clearly established institutional authority to resolve federal-state controversies. The most prominent of these early efforts, the Virginia and Kentucky resolutions of 1798, then, were not novel uses of state authority but rather the manifestation of established practice that was redeployed to address problems of constitutional interpretation and authority facing the country. It is to these resolutions that we now turn.

***** Of the constitutional conflicts involving states, few are better known than those surrounding the Virginia and Kentucky resolutions of 1798. This is

Alerting the People 19 understandable. Much like Marbury, it was an early and high profile assertion of interpretive authority. It involved some of the most important political actors of the day who have become staples of American history. And, through modern eyes, it created an unusual moment where a suspect institutional practice advanced a vision of free speech and press that is widely embraced. The episode also foreshadowed subsequent assertions of state authority that fractured the country approximately six decades later. Given this complexity, drama, and importance, scholars have detailed the history and meaning of the resolutions,50 how the resolutions reflected and advanced notions of interpretive pluralism,51 channeled popular sovereignty,52 articulated an understanding of social compact theory,53 embodied anti-government thought,54 solved the Madisonian dilemma of how to maintain the constitutional order,55 and developed a libertarian conception of speech and press.56 Whereas much attention has been given to these resolutions, scholarly inquiry tends to either look at the episode largely in isolation or as connected with nullification. Given this study’s interest in taking both a longer and broader view of state-based practices, it is worth briefly exploring how the Virginia and Kentucky resolutions of 1798 conformed to and altered existing efforts by states to maintain the constitutional order. The Virginia and Kentucky resolutions were consistent with eighteenthcentury constitutional practice. The forms of the resolutions were by now familiar. Each laid out the respective concerns the legislatures had regarding the Alien and Sedition Acts and the concerns expressed were largely constitutional in nature. Kentucky condemned the “transfer of Judiciary power . . . to the magistrate of the General Government who already possesses all the Executive . . . powers.”57 Virginia complained that the Alien Acts “unit[ed] legislative and judicial powers to those of executive [which] subverts the general principles of free government.”58 On this basis and others discussed below, each declared them either “void and of no force” because the acts were “contrary to . . . the Constitution”59 or simply “unconstitutional.”60 Each then turned to a remedy; seeking the opinions of the other states to act in concert to demand repeal and, in the case of Virginia, sending the resolution to its members of Congress. Each followed the form established in the Stamp Act crisis to protest against a violation of the constitutional order, articulate the causes for protest, and remedying the wrong by, first, concerting the opposition and, second, gaining repeal by the national legislature. In the first several decades of American constitutionalism, legislative precedent was more regular and influential than judicial precedent. Both Madison and Jefferson realized the dangers of the Alien and Sedition Acts on their own and as precedent for future laws. The resolutions were intended to disrupt both the application of the law and any force they might have as precedent for future laws. Additionally, state action would help establish an institutional precedent that would provide states some authority in constitutional maintenance. Both the Virginia and Kentucky resolutions attempt to solve a major and unresolved issue in constitutional maintenance. Jonathan Gienapp argues that

20  Alerting the People the Virginia resolution was a sort of end point in Madison’s quest to resolve the problem of constitutional maintenance. Because the constitutional convention had rejected a congressional veto of state laws and a council of revision over proposed national legislation, the Constitution had been created without a means of ensuring equilibrium.61 Judicial review was insufficient according to Madison because the courts were too weak. Republicanism, and its institutionalization, was initially promising but faded as it became clear that parties were forming and likely necessary. The first decade’s worth of experience under the new Constitution had made Madison less skeptical of state legislatures vis-à-vis the federal government and more insistent that the people and their sovereign authority, as channeled through their representatives, had an important role to play in government constitutional authority.62 Influenced by the early thinking of John Taylor who argued in 1794 that “preserv[ing the Constitution] from violation could only occur by electing members of Congress, of a similarity of interests . . . [who] upon good information, will correct political abuses and invent new checks against their repetition,”63 Madison may well have anticipated state-level interpretation in 1788 but by 1798 he fully embraced Taylor’s idea that “state legislatures have at least as good a right to judge of every infraction of the constitution as Congress itself.”64 State legislatures, then, could act to funnel the opinions of the people when they saw a federal overreach. The resolutions promoted late eighteenth-century understandings of democratic dialogue in a national fashion. A scholarly consensus now seemingly exists that neither resolution was intended nor designed to be the final word or a formal veto.65 As noted above, both resolutions sought the opinion of the other states and Virginia was clear that their members of Congress should act toward repeal. Kentucky employed language more suggestive, declaring the laws “void, and of no force.” Yet, they called upon the other states “for an expression of their sentiments” so that they could “unite with this Commonwealth in requesting their repeal at the next session of Congress.” 66 Whether Kentucky believed the laws were still in effect in Kentucky is unclear but the fact that they sought congressional repeal and rejected Jefferson’s original nullification language gives more credence to the idea that Kentucky legislators did not believe they had nullified the law. Even Jefferson’s draft followed a familiar form as he adopted the same institutional measure used following the Stamp Act. Jefferson proposed each state set up a “committee of conference correspondence” to facilitate communication among the states.67 Gary Wills declared this “an ominous proposal” suggesting a revolutionary character to the system but one can see it as advancing other ends.68 Specifically, the committees on correspondence were arguably the first institutions fashioned for national purposes and there is reason to believe that Jefferson thought these committees could produce national consensus when constitutional principles were imperiled rather than be the source of division and disunity. As such, Jefferson seemed deeply interested, despite his vagaries, in finding means of maintaining the Constitution and its national purpose.

Alerting the People 21 The purpose of soliciting the opinions of other states was to “produce universal alarm.”69 In Federalist 46, Madison predicted that state resolutions of this ilk would serve as “signals of general alarm.”70 The people needed to have the truth revealed to them and the state legislatures were well positioned to alert the people to the encroachments and infringements.71 State legislatures were, then, part of the system of divided authority that permitted each level to be a check on the other and to serve as sentinels over the interests of the people.72 Yet, the people themselves, not the states, were ultimately, acknowledged to be the sovereign authority capable of settling constitutional disputes.73 The resolutions were perceived as competing with the judicial authority over constitutional review. Neither the Virginia nor Kentucky resolution mention judicial review but judicial authority was clearly the backdrop of the resolutions. As Madison had feared, courts had proved a poor check on congressional authority. Jefferson regularly complained about Federalist tampering with juries—either through their selection by presidentially appointed federal marshals or through seeming politically motivated behavior.74 Democratic Republicans increasingly targeted the courts as part of the effort to restore republicanism against the centralizing and monarchical tendencies of the Federalists.75 Federalists, for their part, took the opportunity to make what was likely the strongest affirmation of judicial authority since 1791.76 Of the seven states that formally responded, five cited the courts as the rightful source of constitutional review. Massachusetts argued that the decisions of all cases in law and equity arising under the Constitution of the United States, and construction of all laws made in pursuance thereof, are exclusively vested by the people in the judicial courts of the United States.77 Rhode Island put it even more directly, the Constitution “vests in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding the constitutionality of any act or law of the Congress.”78 To the extent that they addressed maintenance, the Federalist resolutions flip the reasoning of Virginia and Kentucky by pointing out that the many opinions that would emanate out of the states would have a divisive effect deleterious to the people’s interests. Massachusetts wrote that “every act of the federal government which thwarted the views . . . of a particular state . . . would be the object of opposition and of remonstrance.” The people needed to be protected from “the conflict between two hostile jurisdictions” because the people would then be “convulsed and confused . . . enjoying the protection of neither.”79 Given their formulation, the Virginia and Kentucky resolutions were not only “[h]azarding an interruption of the peace of the states” but in and of themselves “unconstitutional in their nature and dangerous in their tendency.”80 Notably, these constructions are much more persuasive if you read the Virginia and Kentucky resolutions as doing something beyond expressing an opinion.

22  Alerting the People The text of the resolutions provides only the thinnest of support for this reading of claimed authority. Nevertheless, it is worth considering why so many of the responding states addressed the resolutions in these terms. First, the federal courts, filled with judges sympathetic to Federalist policies, had been willing to invalidate state laws that conflicted with national laws, helping to take early steps toward the national supremacy of the laws. Diffusion of constitutional review would hinder, not hasten, this development. Second, certain Federalists may have held a principled belief in the exclusivity of judicial review. Prominent Federalists like Hamilton, Gouverneur Morris, and James Wilson held opinions favorable to judicial review. Even political opponents like Jefferson had acknowledged that courts should enforce a “legal check” when rights were violated.81 Faith in courts and a more juridic understanding of the Constitution may have clashed with the vision of constitutional review in the resolutions. Third, and related to this last point, Federalists repeatedly made clear that they wanted to relegate popular authority to elections. Whereas the resolutions ultimately funneled resolutions through elections, by either voting out those who supported the unconstitutional law or by motivating current officeholders to reverse their decision, they also foreshadowed a more engaged and active role of the people as “keeping every portion of power within its proper limits.”82 By sounding an alarm, urging collective action, and encouraging mobilization of the people, the resolutions envisioned space for popular constitutionalism that Federalists found troubling. For example, scholars argue that the disputes surrounding the Whiskey and Fries rebellions had at least as much to do about competing visions of popular sovereignty and constitutionalism than with taxation.83 Judicial review ensured a more stable and elite means of resolving constitutional disputes while leaving less space for the exercise of popular authority.84 The resolutions advanced important constitutional ideas that had yet to be recognized as good constitutional law. The process of establishing an idea that has yet to be formally recognized as constitutionally sound and establishing it as plausible or clearly correct requires the acceptance of certain legal and political elites.85 Madison believed state legislatures could be instrumental in signaling and rallying the people to resolve a conflict over fundamental constitutional concerns. But state legislatures could do more than signal and rally, they could legitimate. Virginia and Kentucky were not the first governments to remonstrate against the Alien and Sedition Acts. Several counties in Kentucky did so before and after the state resolutions were passed. But these did not evoke a national response. The state resolutions did because they were perceived as possessing some measure of authority that focused national political attention on the ideas contained therein. In other words, by sanctioning visions for specific provisions of the Constitution, Virginia and Kentucky began the process of legitimating ideas that could then become constitutional law. The resolutions attempted to displace the prevailing legal understanding of the First Amendment with the prevailing popular understanding. There was ample support for reading the First Amendment as only restricting prior

Alerting the People  23 restraint but permitting criminal liability post-publication. This was the English common law tradition and was widely cited in defense of the Sedition Act by both politicians and jurists.86 Massachusetts invoked the Blackstonian tradition in their resolution, noting, The genuine liberty of speech and the press is the liberty to utter and publish the truth; but the constitutional right of the citizen to utter and publish the truth is not to be confounded with the licentiousness, in speaking and writing, that is only employed in propagating falsehood and slander.87 To protect against licentiousness, Justice Iredell argued in a jury charge, the press needed to be controlled in a representative government as much as it did in a monarchy.88 But the legal tradition was out of step with the popular conception. Scholars have noted that American citizens understood press freedom in a much more libertarian spirit than the common law tradition.89 In his defense of the Virginia resolution, Madison cited this tradition by observing, “In every state, probably in the Union the press has exerted a freedom in canvassing the merits and measures of public men, of every description, which has not been confined to the strict limits of the common law.”90 The Virginia resolution concluded that “the right of freely examining public characters and measures and of free communication among the people thereof” is “the only effectual guardian of every other right.”91 Kentucky similarly argued that the Sedition Act violated the people’s choice to protect speech. By omitting congressional authority to regulate the press and, then, further declaring that this area was outside of its jurisdiction, Kentucky noted that the sovereign people “manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessoning their useful freedom.”92 In framing First Amendment protections as bolstered by the Tenth Amendment, the resolutions also injected a much broader structural argument into the debate. Both resolutions endorsed vague notions of social compact theory. Virginia described the Constitution as “resulting from the compact to which the states are parties.”93 Kentucky asserted that the several states “constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government.”94 This is far from a well-developed theory of constitutional authority. Neither Virginia nor Kentucky elaborated these positions at length. In his Report of 1800, Madison recognized that the term state was “vague” and that one might wish for “the perfection of language [that] admitted less diversity” but he argued that all will at least concur . . . the Constitution was submitted to the ‘states,’ in that sense the ‘states’ ratified it; and in that sense of the term ‘states,’ they are consequently parties to the compact from which the powers of the federal government result.95

24  Alerting the People As parties to the contract, states then had at least some role in the constitutive process; most clearly and authoritatively, in channeling popular authority. The resolutions arguably worked as a mechanism to resolve constitutional disputes. To be clear, the resolutions did not work perfectly. The responses from seven responding states not only rejected the interpretation that the Alien and Sedition Acts were unconstitutional but many states explicitly denied the authority of states to play this role in settling constitutional meaning. Consensus on particular limitations to the national government and the proper understanding of the new constitutional republic thus failed to emerge immediately. However, at least on the construction of the First Amendment, consensus did emerge due, in part, to the resolutions and what followed. In the Report of 1800, Madison repeatedly claims that the resolutions were “expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection.”96 Jefferson made it clear that opposition could not take the form of “anything like force . . . [b]ut keep away all show of force, and [the American people] will bear down the evil propensities of the government, by the constitutional means of election and petition.”97 Petitions did, indeed, flood Congress, if from other subnational sources other than states, by February of 1800.98 As expressions of a constitutional and political vision, the resolutions featured prominently in the election campaign of 1800. Koch and Ammon refer to the resolutions “as one of the fundamental planks of [Jefferson’s] party in federal affairs.”99 Cunningham refers to the resolutions as the “opening guns of the campaign of 1800.”100 In Jefferson’s formulation of constitutional maintenance, the “beautiful equilibrium on which our Constitution is founded” had to be sustained by the people.101 The election of 1800 and the sweeping victories of Democratic Republicans can be seen as a moment that clarified constitutional meaning. Nowhere is this clearer than with the construction of the First Amendment. The Sedition Act was allowed to expire and Jefferson pardoned the two individuals who remained in prison from a sedition conviction. But its construction extended beyond the immediate aftermath of the election. Michael Kent Curtis observes that following the events of 1798–1801, the Supreme Court “rejected federal criminal jurisdiction based on common law [of sedition].”102 The Court declared that the matter had “been long since settled in public opinion.”103 Not only did federal prosecutions end thereafter but, perhaps demonstrating that a national norm more favorable to free speech and press took hold, seditious libel prosecutions in the states decreased and “eventually essentially ceased.”104 The sentiments of free speech and press were foundational to the intellectual and judicial foundations of the libertarian defense of speech that emerged at the end of the nineteenth century. Justice Stephen Field, John Burgess, and Thomas Cooley all relied upon Madison and Jefferson’s formulation in their writings.105 In short, the resolutions articulated important constitutional logics that were influential during their time and proved useful to later generations who grappled with their own encroachments on speech. This is not

Alerting the People 25 to suggest that the resolutions definitively settled constitutional meaning but rather that they advanced a particular vision that has become part of the fabric of American rights and liberties. Constitutional scholars have long observed that vesting a certain institution with review authority comes with certain biases and the system of maintenance conceived by Madison and Jefferson and articulated by Virginia and Kentucky is no exception.106 First, as noted above, to justify state participation in national constitutional politics, the resolutions and subsequent defenses embraced some version of social compact theory. Madison was clear in 1800 that the states, whether as states or as organizing units of the people, adopted the Constitution and that states were the parties to the compact.107 As parties, no tribunal could be superior so “the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated.”108 The formulation of states as “rightful judges” limited the degree of judicial authority. Madison acknowledged that although courts may enjoy the authority over constitutional questions, this authority was limited to disputes regarding “the other departments” and not the states. But extending constitutional authority to states would do little to avoid judicial aggrandizement of national authority, resulting in “subvert[ing] forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”109 To disrupt states as agents of maintenance, in Madison’s formulation, would be to disrupt the agreement made by the sovereign people. Privileging state authority in constitutional review, at least as it related to issues of federalism, diffused and decentralized the authority. To Madison, this was unproblematic because it located the authority closer to the people themselves. In Federalist 46, Madison argued that “the first and most natural attachment of the people will be to the governments of their respective states.” States were better situated to understand and address local interests and concerns, which would create strong local loyalties to state legislatures. But, in enhancing the local, this form of constitutional authority also elevated the prominence of local interests. A couple of the responding states denounced the resolutions for interfering with a “national concern.”110 The tension here is clear: factious interest was considered an evil; factious legislation was considered unconstitutional. Localism was almost inherently interested because by even being understood as local, it did not at the time enjoy general support. Thus, by multiplying the agents of review and locating them subnationally, this system arguably privileged interested concerns that threatened the national public welfare. As New York observed, the resolutions were “destructive to the federal government and unjust to those whom the people have elected to administer it.”111 In all likelihood, diffused constitutional review and the elevation of local concerns runs the risk of elevating the need for consensus to resolve the dispute while, at the same time, potentially making it more challenging to realize. As the counter-resolving states made plain, this ran the risk of making unrest among the states more likely.

26  Alerting the People Diffuse review elevated political conflict and the role of the people in its resolution through elections. When state legislatures acted to “interpose” themselves in a constitutional conflict, they did so to alert and activate the people. Madison was skeptical that the people could or even should do this on their own. Rather, state legislatures could enlighten public opinion, help keep it attached to the foundational principles of the Constitution, and call the people to act as its defender.112 This formulation was a critique of federalism. Washington had worried about popular activism during his presidency, led troops into the field to put down its more vigorous manifestations, and warned in his farewell address that the people had the right “to make and to alter their constitutions” but, otherwise, they must “obey the established government.”113 This formulation put the people at too far a remove. Properly informed and activated “elections intended by the constitution to preserve the purity, or to purge the faults of the administration [are] the great remedial rights of the people.” Such moments would be rare. State legislatures would only do so in cases “dangerous to the great purposes for which the Constitution was established” and when it was “plain and palpable.”114 Yet, this process of dispute anticipated some degree of conflict—certainly conflict between the federal and objecting state government and, also, among the states. Such conflict would persist until the people unequivocally spoke electorally. Given the way the new Constitution divided power and staggered elections, Madison must have realized that this could mean protracted conflict. The system of constitutional review and maintenance articulated in the resolutions shared at least one developmental feature with judicial review. Judicial review took decades to be firmly established. As Mark Graber observes, not until politicians became vested in its exercise did judicial review go from being mere judicial assertion to an unquestionable feature of the political system capable of compelling powerful politicians to do what they otherwise would not.115 State efforts at constitutional maintenance entered the establishment phase after the Virginia and Kentucky resolutions, which is to say its fate hung on whether it could prove sufficiently valuable to political actors so as to become indispensable. And, of course, it had to do so during a time when the courts were also exercising review in an attempt to ensure a role for themselves in national affairs. What is clear is that the Virginia and Kentucky resolutions had established that state engagement with constitutional politics to trigger an electoral remedy was possible. Also of note, the resolutions themselves, the Report of 1800, and other writings that justified state action created intellectual resources that could be repurposed by future actors attempting to refashion state-based maintenance so as to achieve their own constitutional visions. The Virginia and Kentucky resolutions feature prominently in many subsequent episodes despite the form of the practice being notably altered.

*****

Alerting the People 27 The Virginia and Kentucky resolutions helped establish that states could play a role in the maintenance of the constitutional order. This required making interpretive arguments about national power and the First Amendment. These interpretive arguments were contingent on an understanding of constitutional authority in which the states could raise constitutional concerns, help mobilize the people, and seek resolution through popular authority. As discussed, the resolutions were not the first efforts but they were the most prominent and the most intentional effort to empower states to rebalance the constitutional order. As the new partisan reality emerged, subnational practices had considerable appeal. Democratic Republicans used the resolutions to object to the prevailing sentiment on national authority and, in so doing, clarified their constitutional commitments. The nascent party used this to great effect in the campaign of 1800. As the majority party, Democratic Republicans were able to concretize their constitutional vision and this process was eased by the sense among the Federalists that a return to these policies would be politically treacherous. From the perspective of Democratic Republicans, this settlement also restored the national state balance, providing a system of maintenance. And, the system provided a structured means of utilizing popular authority and thus brought politics back to the principles of 1776. The next several decades brought notable changes to this practice of maintenance, which transformed it and its justification. These changes were wrought by the political forces of the day and entrepreneurial politics seeking to protect vulnerable commitments. The result was an attempt at a practice transformed, relocating authority from the national to the subnational to achieve interpretations consistent with sectional majorities rather than national majorities.

Notes 1 For example, the president’s decision to sign or veto a law was treated as the final opportunity to speak on the law’s constitutionality. Given the absence of robust judicial review, the veto was viewed by some as the final word. For example, Thomas Jefferson argued, “The negative of the President is the shield provided by the Constitution to protect against the invasions of the legislature.” Thomas Jefferson, “Opinion on the Constitutionality of a National Bank, 1791,” The Avalon Project: Documents in Law, History and Diplomacy. Accessed August 30, 2018, http://avalon.law.yale.edu/18th_century/bank-tj.asp. 2 David Currie, The Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), 20. 3 Alexander Hamilton, “Federalist 78,” in The Federalist Papers, ed. Clinton Rossiter (New York: Penguin Putnam, 1961), 432–40; Calder v. Bull, 3 U.S. 386 (1798); Marbury v. Madison, 5 U.S. 137 (1803). 4 For example, the Virginia Court of Appeals declared Section 25 of the Judiciary Act of 1789 unconstitutional. See Martin v. Hunter’s Lessee, 14 U.S. 304 (1816). 5 Mary Sarah Bilder, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge: Harvard University Press, 2004). 6 Edmund S. Morgan, “Colonial Ideas of Parliamentary Power, 1764–1766,” William & Mary Quarterly 5 (1948): 311–41, 314.

28  Alerting the People 7 “Virginia Resolves, May 29, 1765,” in Revolutionary America, 1763–1815: A Sourcebook, ed. Francis D. Cogliano and Kristen E. Phimister (New York: Routledge, 2011), 51. 8 As quoted in Morgan, “Colonial Ideas of Parliamentary Power,” 323. 9 Harlow Giles Unger, Lion of Liberty: Patrick Henry and the Call to a New Nation (Cambridge: Da Capo Press, 2010), 37. 10 Ibid. 11 “Virginia Resolves, May 29, 1765,” 50–51. 12 Morgan, “Colonial Ideas of Parliamentary Power,” 325–6. 13 Ibid., 323. 14 Alden Bradford, Massachusetts State Papers (Boston, 1818), 50–51. 15 Morgan, “Colonial Ideas of Parliamentary Power,” 322. 16 Jack P. Greene, Understanding the American Revolution, Issues and Actors (Charlottesville: University of Virginia Press, 1995), 86. 17 Benjamin Franklin, “Examination of Benjamin Franklin Before the House of Commons, 1766,” Revolutionary America, 59. 18 Greene, Understanding the American Revolution, 87. 19 Following the Massachusetts House of Representative’s adoption of a petition to the king, which declared the revenue acts as violating colonists’ “sacred right . . . of being taxed only by representatives of their own free election,” they sent a circular letter to all of the other Assemblies and urged them to take “such constitutional measures . . . as are proper.” See Bernard Knollenberg, Growth of the American Revolution, 1766–1775 (New York: The Free Press, 1975), 54. 20 Knollenberg, Growth of the American Revolution, 87. 21 Ibid., 56. 22 Ibid., 59. 23 Franklin, “Examination of Benjamin Franklin Before the House of Commons, 1766,” 56. 24 Karen Orren and Stephen Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004), 112. 25 E. James Ferguson, The Power of the Purse (Chapel Hill: University of North Carolina Press, 1961), xv. 26 Maryland, Georgia, North Carolina, and Virginia formed the opposition. The New York, New Jersey, the New England states, and heavily indebted South Carolina favored a federal takeover of their debt. Pennsylvania was divided. 27 John C. Miller, The Federalist Era: 1789–1801 (New York: Harper  & Brothers Publishers, 1960), 40. 28 Annals of Congress, House of Representatives, 1st Congress, 2nd Session, 1371–2. 29 Ibid., 1361. 30 Miller, The Federalist Era, 48. 31 Ibid. 32 William Waller Hening, The Statutes at Large: Being a Collection of All the Laws of Virginia From the First Session of the Legislature, in the Year 1619, Vol. 13 (Philadelphia: William Brown, Printer, 1823), 234. 33 Ibid., 239. 34 Ibid., 234, 237. 35 Hamilton, “Federalist 35,” The Federalist Papers, 184–5. 36 Madison, “Federalist 57,” The Federalist Papers, 321. 37 Hening, The Statutes at Large, 238. 38 Ibid. 39 Herbert J. Storing, The Complete Anti-Federalist, Volume 1: What the AntiFederalists Were For (Chicago: University of Chicago Press, 1981), 54. 40 The State Records of North Carolina, Volume XXI 1788–1790 (Goldsboro: Nash Brothers, Book and Job Printers, 1903), 1055. 41 Quoted in Storing, What the Anti-Federalists Were For, 8–9.

Alerting the People 29 42 Hening, The Statutes at Large, 239. North Carolina’s language was slightly different in that they specifically sought to direct their members of Congress to “exert their endeavors to prevent as far as possible the evil operations of such acts to the interests and liberties of this country, and prevent as much as in their power all other and further assumptions, until the accounts of the respective states, and this State in particular, shall be fully adjusted, and the consent of this State shall have been first had and obtained.” The State Records of North Carolina, Volume XXI 1788–1790, 1055–6. 43 2 U.S. 419 (1793). 44 Herman V. Ames, State Documents on Federal Relations: The States and the United States (Philadelphia: The Department of History of the University of Pennsylvania, 1906), 8–9. 45 New Hampshire decried the Supreme Court’s decision in Penhallow v. Doane, 3 U.S. 54 (1795), as an exercise of authority that neither Congress nor the courts enjoyed. See “First Remonstrance of the Legislature, February 20, 1794” and “Second Remonstrance of the Legislature, January 16, 1795” in Ames, State Documents on Federal Relations, 12–15. 46 Leland D. Baldwin and Ward Hunter, Whiskey Rebels: The Story of a Frontier Uprising (Pittsburgh: University of Pittsburgh Press, 1967), 66. 47 Jacob E. Cooke, “The Whiskey Insurrection: A Re-Evaluation,” Pennsylvania History 30 (1963): 329–36, 335. 48 William Michael Treanor, “Judicial Review Before Marbury,” Stanford Law Review 58 (2010): 455–562. 49 Storing, What the Anti-Federalists Were For, 36. 50 Adrienne Koch and Harry Ammon, “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties,” William and Mary Quarterly 5 (1948): 145–76; Adrienne Koch, Jefferson and Madison: The Great Collaboration (New York: Alfred A. Knopf, 1950), 174–211; Stanley Elkins and Eric McKitrick, The Age of Federalism (New York: Oxford University Press, 1993), 719–26; H. Jefferson Powell, “The Principles of ’98: An Essay in Historical Retrieval,” University of Virginia Law Review 80 (1994): 689–743. 51 Wayne D. Moore, Constitutional Rights and Powers of the People (Princeton: Princeton University Press, 1996), 239–74; see also Bradley D. Hays, “Nullification and the Political, Legal, and Quasi-Legal Constitutions,” Publius: The Journal of Federalism 43 (2013): 205–26. 52 Christian G. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008), 197–210. 53 Andrew C. McLaughlin, “Social Compact and Constitutional Construction,” The American Historical Review 5, no. 3 (1900): 467–90. 54 Garry Wills, A Necessary Evil: A History of American Distrust of Government (New York: Simon and Schuster, 1999), 123–52. 55 Jonathan Gienapp, “How to Maintain a Constitution: The Virginia and Kentucky Resolutions and James Madison’s Struggle with the Problem of Constitutional Maintenance,” in Nullification and Secession in Modern Constitutional Thought, ed. Sanford Levinson (Lawrence: University Press of Kansas, 2016), 53–90. 56 James Morton Smith, Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties (Ithaca: Cornell University Press, 1956). 57 “Resolution Adopted by the Kentucky General Assembly,” The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799 (Princeton: Princeton University Press, 2003), 550–56. 58 “Virginia Resolution,” The Avalon Project: Documents in Law, History, and Diplomacy. Accessed August  30, 2018, http://avalon.law.yale.edu/18th_century/ virres.asp. 59 “Resolution Adopted by the Kentucky General Assembly.”

30  Alerting the People 60 61 62 63

“Virginia Resolution.” Gienapp, “How to Maintain a Constitution,” 63. Ibid., 79–85. John Taylor, An Enquiry into the Principles and Tendency of Certain Public Measures (Philadelphia: Thomas Dobson, 1794), 54–5. 64 Ibid., 55. 65 Supra, notes 50 and 51. 66 “Resolution Adopted by the Kentucky General Assembly.” 67 “Jefferson’s Fair Copy,” in The Papers of Thomas Jefferson, Volume 30: 1 January 1798 to 31 January 1799, ed. Barbara Oberg (Princeton: Princeton University Press, 2003), 543–9. 68 Wills, A Necessary Evil, 142. 69 “Virginia Resolution.” 70 James Madison, “Federalist 46,” The Federalist Papers, 266. 71 On the people missing the broader truths behind Federalist policies, see James Madison, “Letter to Thomas Jefferson (May  20, 1798),” The Papers of Thomas Jefferson, Volume 30, 358–60. 72 James Madison, “Federalist 51,” The Federalist Papers, 288–93. 73 Gienapp, “How to Maintain a Constitution,” 73–8. 74 Thomas Jefferson, “To Thomas Mann Randolph,” in The Papers of Thomas Jefferson, Volume 33, 17 February to 30 April 1801, ed. Barbara B. Oberg (Princeton: Princeton University Press, 2006), 260. 75 This hostility culminated in the passage of the Judiciary Act of 1801. See Forrest McDonald, The Presidency of Thomas Jefferson (Lawrence: The University Press of Kansas, 1976), 41–52; Richard Ellis, The Jeffersonian Crisis (New York: W. W. Norton, 1971), 19–107. On Jeffersonian hostility to the courts more generally, see Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007), 54–6. 76 Elkins and McKitrick suggest that the relatively weak judicial system created by the Judiciary Act of 1789 reflected a lack of consensus—or focus—on judicial authority among Federalists in the first Congress; see The Age of Federalism, 64. 77 “Answers of the States—Massachusetts,” in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington: Printed for the Editor, 1836), 534. 78 “Answers of the States—Rhode Island,” Debates in the Several State Conventions, 533. 79 “Answers of the States—Massachusetts,” Debates in the Several State Conventions, 534. 80 “Answers of the States—Rhode Island,” 533; “Answers of the States—Vermont,” Debates in the Several State Conventions, 539. 81 Jefferson, “To James Madison (March  15, 1789),” in The Works of Thomas Jefferson in Twelve Volumes. Federal Edition, ed. Paul Leicester Ford. Accessed August 30, 2018, www.loc.gov/resource/mtj1.011_0006_0012. 82 James Madison, “Charters,” National Gazette, January 18, 1792. Accessed August 30, 2018, https://founders.archives.gov/documents/Madison/01-14-02-0172. 83 See Fritz, American Sovereigns, 153–89; Thomas P. Slaughter, The Whiskey Rebellion: Frontier Epilogue to the American Revolution (New York: Oxford University Press, 1986); Paul Douglas Newman, Fries’s Rebellion: The Enduring Struggle for the American Revolution (Philadelphia: University of Pennsylvania Press, 2004). 84 Massachusetts acknowledged that the people had legitimated the Alien and Sedition Acts by reelecting the Massachusetts delegation following passage of the laws; “Answers of the States—Massachusetts,” Debates in the Several State Conventions, 537.

Alerting the People  31 85 Jack M. Balkin, Constitutional Redemption: Political Faith in an Unjust World (Cambridge: Harvard University Press, 2011), 178–86. 86 Michael Kent Curtis, Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History (Durham: Duke University Press, 2000), 63–79. 87 “Answers of the States—Massachusetts,” Debates in the Several State Conventions, 535. 88 Curtis, Free Speech, 78. 89 Curtis, Free Speech, 96; Leonard Levy, “The Legacy Reexamined,” Stanford Law Review 37 (1985), 767–8; David Anderson, “The Origins of the Press Clause,” UCLA Law Review 30 (1983), 455, 510–15. 90 “Madison’s Report on the Virginia Resolution,” in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington: Printed for the Editor, 1836), 570. 91 “Virginia Resolution.” The resolutions were an interesting twist on this idea. Madison returned to state office due, in part, to a fear of prosecution as a private citizen. Madison had been publishing articles hostile to administration policies in the Aurora and he believed that he might more safely and effectively advocate from a governmental position. So, one reading of Madison’s position in the Virginia resolution was that a free press and free exchange of ideas was necessary to avoid intergovernmental conflict, which would necessarily occur should political dissidents be forced to retreat to state governments. 92 “Resolution Adopted by the Kentucky General Assembly,” Debates in the Several State Conventions, 551. 93 “Virginia Resolution.” 94 “Resolution Adopted by the Kentucky General Assembly,” 550. 95 “Madison’s Report on the Virginia Resolution,” Debates in the Several State Conventions, 547. 96 Ibid., 578. 97 Thomas Jefferson, “Letter to Edmund Pendleton (February  14, 1799),” in The Papers of Thomas Jefferson, Volume 31, 1 February 1799 to 31 May 1800, ed. Barbara Oberg (Princeton: Princeton University Press, 2003), 36–7. 98 Elkins and McKitrick, The Age of Federalism, 725. 99 Koch and Ammon, “The Virginia and Kentucky Resolutions,” 170. 100 Cunningham also published the party platform as published in the Philadelphia Aurora and condemnation of the Alien and Sedition Acts features prominently. Noble E. Cunningham, Jr. The Jeffersonian Republicans: The Formation of Party Organization, 1789–1801 (Chapel Hill: The University of North Carolina Press, 1957), 129, 213–14. 101 Peter S. Onuf, Jefferson’s Empire: The Language of American Nationhood (Charlottesville: University of Virginia Press, 2000), 95. 102 Curtis, Free Speech, 114. 103 United States v. Hudson and Goodwin, 11 U.S. 32 (1812). 104 Curtis, Free Speech, 115. 105 Mark A. Graber, Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 27–30. 106 This approach to constitutional theory may be most closely associated with the “Princeton school.” See, Sotirios A. Barber and Robert P. George, Constitutional Politics: Essays on Constitution Making, Maintenance, and Change (Princeton: Princeton University Press, 2001); Walter Murphy, Constitutional Democracy: Creating and Maintaining a Just Political Order (Baltimore: Johns Hopkins University Press, 2007). 107 “Madison’s Report on the Virginia Resolution,” Debates in the Several State Conventions, 547.

32  Alerting the People 108 Ibid., 548. 109 Ibid., 549–50. 110 “Answers of the States—Massachusetts,” in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington: Printed for the Editor, 1836), 534; “Answers of the States—New York,” in Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington: Printed for the Editor, 1836), 538. 111 “Answers of the States—Massachusetts,” Debates in the Several State Conventions, 538. 112 James Madison, “Charters,” National Gazette; Gienapp, “How to Maintain a Constitution,” 77. 113 George Washington, “Farewell Address [1796],” Avalon Project. Accessed August 30, 2018, http://avalon.law.yale.edu/18th_century/washing.asp. 114 “Madison’s Report on the Virginia Resolution,” Debates in the Several State Conventions, 548. 115 Mark A. Graber, “The Problematic Establishment of Judicial Review,” in The Supreme Court in American Politics, ed. Howard Gillman and Cornell Clayton (Lawrence: University Press of Kansas, 1999); Graber, “The Passive Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power,” Constitutional Commentary 12 (1995), 67–92.

3 Interposing the Protective Shield and Exerting State Authority The Failures of State Maintenance As the young republic moved into the nineteenth century, Democratic Republicans moved from holding power in a few states to holding power nationally. This move from the periphery to the center demonstrated that using states to contest the exercise of federal authority could be a powerful tool to mobilize opposition and win elections. But this same factor may have also contributed to the lack of institutionalizing effort that followed. Madison’s Report of 1800 had laid out a justification for state action and its benefits for constitutional maintenance but it made no recommendation for maintaining the process itself moving forward. Neither Jefferson nor Madison as president and secretary of state made any efforts to facilitate its institutionalization. A definitive reason is not available in the historical record but certain elements are worthy of attention. First, the practice was located in state legislatures, and state legislatures were well developed and financed political entities. They did not require the degree of institution building that, say, the federal judiciary required in the nation’s first half century.1 As both the creation of the Virginia and Kentucky resolutions and the responses to them by seven other state legislatures reveal, states were already capable of action. The fact that no effort took place to formalize or routinize the process may have reflected a sense that it was unnecessary. Second, Madison repeatedly noted that he believed that states should act only in extraordinary episodes. Moreover, Madison thought that, should state action become commonplace, it would do much damage to the people’s respect for the national government and the Constitution.2 Formalizing the practice through something like Jefferson’s proposal for committees of correspondence in each state may well have increased the use of state remonstrance. Leaving things as they were, arguably, made it more likely that this remedy truly would be extraordinary. Third, as the Democratic Republicans moved to the center, there were few incentives to bolster a practice that facilitated opposition. As the Democratic Republican’s assault on the federal judiciary showed, they were interested in enervating possible conduits for Federalist policies and concentrating their policymaking authority. Institutionalizing dissent was less appealing to the extent that it facilitates Federalist-controlled states disrupting Jeffersonian policies.

34  Interposing the Protective Shield In effect, then, what the episode did was to generate significant intellectual resources that promoted and justified state action but without the mooring of a formalized process. Subnational practices were durable facets of Antebellum politics yet the mere existence of the practice likely obfuscates the degree of variance. The lack of formal institutionalization left a bounty of resources generated between 1798 and1800 that were subject to future officials to adopt, discard, and transform according to the mandates of the political conditions and their particular political ends. As such, each iteration simultaneously confirmed states as agents of constitutional meaning but also confirmed the amorphous and contested nature of their authority. In the wake of the Virginia and Kentucky resolutions, states continue to assert countervailing interpretations of the Constitution. But what defines the development of state-based practices during this period are new and more coercive arguments of constitutional authority. Claims by states to not only have the right to judge the constitutionality of national legislation and rally the people but to obstruct the law’s enforcement emerge during the embargo crisis. These claims receive little attention but become more prominent in the 1820s. By the end of the decade, John Calhoun developed his theory of state nullification and South Carolina put it into practice. This chapter looks at the claims of interpretation and authority through the lens of constitutional politics to explore its developmental effects on state-based constitutional maintenance. The chapter then turns to the aftermath of nullification as states attempted to utilize their authority to maintain the old constitutional arrangements on slavery—arrangements that provided northern states greater authority to resist the encroachments of slave power within their jurisdiction. Again, the effort to maintain the old order against new federal laws and judicial decisions required states to balance their interpretive claims against claims of authority to limit unconstitutional laws.

***** By 1800, Federalists had realized their commitment to judicial review by establishing strong political foundations for its exercise.3 By 1808, Federalists argued against this consolidation of constitutional authority and adopted a position much closer to the one they opposed a decade before: that states and local governments had an obligation to voice their protests when national policies violated constitutional politics. It was even suggested that state authority went beyond mere protest to a more active opposition that could limit the harm to the state’s citizenry. On the one hand, the change in position in less than a decade was political hypocrisy. On the other hand, it was evidence of the practicality that informed opposition politics. A practice that had worked so completely to alter who controlled national power and to concretize constitutional meaning could be employed once more for similar purposes. Federalists had not been convinced of Madisonian maintenance so much as they were desperate to stop a policy that they viewed as economically devastating and destructive to the purpose of the commercial republic.

Interposing the Protective Shield  35 Perhaps because of the extent of their dissatisfaction, Federalists in New England made subtle changes to the practice that increased its coercion and, arguably, its divisiveness. By arguing that state resolutions could do more than protest and rally the people, it jeopardized the notion that constitutional balance could be better achieved by states than other forms of maintenance, like judicial review. In effect, this created another dimension to the conflict. In addition to the questions of whether the policy itself was constitutional and whether states could assert an interpretation of the Constitution, there was a question about the extent of that authority and whether a state might move beyond expressing their opinion to limiting the force of the law. This new dimension of constitutional authority would not be fully addressed until the nullification crises (and not answered with finality even then) but the embargo crisis provided an introduction to the question and pushed the practice to different forms than previously seen. The embargo crisis was precipitated by a series of events that led President Jefferson to use commercial force rather than military force to compel its adversaries to yield to the country’s demands of free trade. In 1806 and 1807, two separate orders in council resulted in an escalation of British naval harassment of American vessels and significantly higher operating costs. By creating a “paper blockade” on France and French held territories, the British navy regularly boarded, searched, and seized American goods and ships. According to historian Paul Gilje, most of the seized ships were returned by the British admiralty court but the actions nevertheless resulted in significant increases to insurance rates.4 Moreover, the British banned neutral ships from making stops in multiple ports under French control, which was a common and profitable practice by American traders. Tensions were heightened by British efforts at impressment. Two separate incidents occurred within fourteen months in which British warships fired on American ships—one a merchant vessel and the other a naval frigate—in the process of searching the vessels for contraband and/or deserters from the royal navy. Following the latter incident in which the USS Chesapeake was compelled under British broadsides to strike its colors, American sentiment that war was the only response was, at least according to Jefferson, nearly universal.5 British encroachment on American trade, ships, and sailors wrought the assertion of commercial rights premised on the country’s neutrality. Initially, these claims were based on international law but, as the source of the limitation on trade changed from the British to the Jefferson Administration and its embargo, Federalists insisted that commercial trade rights were central to the Constitution and could not be violated. Both Republicans and Federalists agreed that the law of nations gave neutral ships the right against belligerent nations to trade their goods. For example, early in his presidency, Jefferson asserted his belief that “free ships should make free goods.”6 Expanding on this idea, he wrote, war between two nations cannot diminish the rights of the rest of the world remaining at peace. . . . Thus, either all intercourse must cease between

36  Interposing the Protective Shield neutrals & belligerent, or all be permitted. . . . Reason & nature clearly pronounce that the Neutral is to go on in the enjoyment of all its rights, that its commerce remains free.7 The challenge was to enforce and protect these rights without being pulled into war with one of the belligerent nations. To do this, Jefferson envisioned weaponizing the country’s commercial power, and using it as a means of imposing respect for neutral rights against Britain. Such a tool was “the means of peaceable coercion.”8 By avoiding use of a relatively weak military, it also had the chance of being effective. Finally, Jefferson believed it had one more advantage: there was precedent to support its lawfulness. Back in 1794, the Federalist-controlled Congress passed a sixty day embargo in response to ongoing conflict with Great Britain.9 A series of nonintercourse acts were passed by Congress during the Quasi-War that ultimately prohibited all commercial intercourse to enforce the law against American vessels. During the floor debates over these bills, the constitutionality of the acts was not questioned, suggesting that there was wide agreement that Congress enjoyed the power to prohibit foreign trade as part of its commercial and war-making authority.10 Moreover, courts regularly enforced the laws and, whereas they regularly assessed the validity of the law’s enforcement in the particular case, there did not seem to be a legal question of its constitutionality.11 The legal case for the embargo’s constitutionality was made explicit in 1808 when the federal district court for Massachusetts heard a challenge to the constitutionality of the embargo. In United States v. The William, a team of prominent Federalist attorneys contested the constitutionality of the embargo. Based on Judge John Davis’s opinion in the case, it appears that they pressed two issues. First, that Congress’s power to “regulate” foreign commerce was a limitation; the power to regulate presumed the existence of the commercial activity, which necessarily meant that the commerce existed in the first place. The power to regulate, then, meant that Congress did not possess the power to “annihilate” the activity.12 Second, the current embargo was distinguishable from past exercises of authority due to its uncertain duration. Even if past episodes were at the maximum of Congress’s authority, the expiration of the authority within the law meant that Congress had limited itself only to what was necessary and proper. Judge John Davis, who was both a Federalist and one of President Adams’s midnight appointees, dispatched both arguments and upheld the constitutionality of the embargo. Davis rejected the formal, restrictive reading of the commerce clause. He asserted that “the power to regulate commerce is not to be confined to the adoption of measures, exclusively beneficial to commerce itself, or tending to its advancement.” As such, the power “to adapt regulations of commerce to other purposes, than the mere advancement of commerce, appears to me unquestionable.” And this included the power “to abridge it, in favor of the great principles of humanity and justice.”13 As for the unlimited duration, Davis noted that nothing in the Constitution limited Congress in this regard and, thus, was entirely permissible.14

Interposing the Protective Shield  37 The legal case for the embargo’s constitutionality was met by the political opposition’s remonstrance and mobilization against it. Responding to the legal arguments in The William, the Massachusetts legislature resolved that the embargo “was not, it is believed, contemplated by the framers of the Constitution . . . [and] a novel and dangerous experience . . . equally repugnant to the national honor and interest.”15 The Wheaton Resolutions, named for their sponsor, were joined by towns across New England that “flooded” Jefferson with petitions.16 As anti-embargo sentiment grew, the Massachusetts legislature passed a second set of resolutions that struck a more unequivocal tone.17 Eventually, Rhode Island, Delaware, and Connecticut each passed resolutions. Federalist constitutional claims focused, first, on economic rights and, second, on the powers granted to enforce the embargo. The resolutions do not provide robust explanations of the economic rights being violated but rather point to general “first principles of civil liberty, and the fundamental provisions of the Constitution.” Yet, as was done by the Massachusetts House, these constitutional liberties were seen as violated by a “system of policy ruinous to their interests, and uncongenial to their enterprising spirit.”18 Federalists attempted to link the embargo with what they perceived as the Constitution’s commitment to the general welfare. The neutrality principle mandated that the “government . . . has no right to sacrifice the interests of one section of the Union to the prejudice, partialities, or convenience, of another.”19 If the government could legitimately enact the embargo, then it would possess the illicit power to establish “oppressive monopolies and exclusive privileges.”20 The dual commitments of neutrality and commerce were fundamental to the Constitution. The United States was “a commercial nation” and thus “regulation [of commerce] cannot mean annihilation.” If it did, Josiah Quincy argued before the House, it undermines “the jealousies and diverse interests of the different States” that led to the protection of “a certain species of property” favored by the South and the “interest in commerce and the power to understand its true interests” demanded in the East.21 Federalists stressed that the embargo was unprecedented in 1787 so that it was inconceivable that northern states would have consented to a power that would have undercut the purpose of the Union.22 As such, the resolving states saw themselves as “preserving [the Union], according to its original purpose.”23 The resolutions contained a second objection to the enforcement acts passed subsequent to the embargo. These acts provided unprecedented executive authority including the authority to seize cargo without a warrant and to use the military for enforcement purposes. Much as with concerns over the embargo itself, the resolutions invoked more abstract principles than concrete constitutional provisions. Delaware specifically cited that “it will be dangerous to the freedom of these States to place at the disposal of the President of the United States a standing army of fifty thousand volunteers.” No other direct references to the mechanisms of enforcement were made in the resolutions yet they clearly animated significant concerns. Evidence of this concern can be seen in Massachusetts’s resolutions on the Enforcement Act. The legislature urged “all

38  Interposing the Protective Shield parties aggrieved by the operation of this act, to abstain from forcible resistance, and to apply for their remedy in a peaceable manner to the laws of the commonwealth.” Directing the people to their legal remedies picked up on an important reality in the enforcement of the embargo: juries in New England were largely unwilling to enforce the fines levied against those who violated the embargo or seize confiscated goods.24 In fact, after observing proceedings in the district court for nearly two months in 1809, John Quincy Adams wrote, “Not one instance has occurred of a conviction by a jury, and finally one of the jurymen is said to have declared that he never would agree to convict any person under these laws, whatever might be the facts.”25 Recourse to popular remedies helps demonstrate that the resolving states largely embraced Madisonian practice despite opposing it a decade prior. First, it was once again asserted that states were channeling and voicing popular discontent with the national policy. The Massachusetts House of Representatives explained its resolutions by explaining, The expression of the publick sentiment has become necessary to counteract the errors and misrepresentations of those who have falsely inculcated upon the administration of the General Government a belief that the measures they were pursuing were satisfactory to the people.26 Republicans countered that the Federalist-controlled legislatures were not simply expressing the general will but were “altering the general sentiment . . . for a radical change in the substance of our social institutions.”27 This is almost certainly true as Federalists clearly saw anti-embargoism as a means for recapturing power. Throughout New England, Federalists successfully used the embargo to pummel Democratic Republicans, a fact not lost on the opposition.28 In one of many examples, the Federalist gubernatorial in Pennsylvania, John Spayd, campaigned with the motto: “Spayd and free trade, Liberty and the Constitution.”29 These campaigns were largely successful in that Federalists took control of state governments in Massachusetts, New Hampshire, Connecticut, Vermont, and Rhode Island.30 Moreover, in House elections, Federalists picked up 24 seats and one seat in the Senate.31 This represented the largest victory for the Federalists in the past decade. As one historian put it, “To this sentiment Federalists owed a new lease on life.”32 Republican skepticism extended beyond motives to the legitimacy of the remonstrances. Again, the proverbial shoe was very much on the other foot. In 1799, the Federalist Massachusetts legislature resolved that it “cannot admit the right of the state legislatures to denounce the administration of that government to which the people themselves . . . have exclusively committed their national concerns.”33 Republican Lieutenant Governor Levi Lincoln adopted a similar position in 1809 when he chastised the Massachusetts legislatures and claimed the time for opposition to the embargo had passed.34 The Massachusetts legislature—and other resolving states—took the position crafted by Madison in the Report of 1800. The Massachusetts Senate asked in response,

Interposing the Protective Shield  39 “Can it be necessary to remind your Honor . . . [t]hat the people have not sent us here to surrender their rights but to maintain and defend them?”35 The House developed the idea more fully, arguing that if it is presumed that any act passed by Congress is stamped as constitutional and no longer a subject for the deliberation or remonstrance of the citizen to what monstrous lengths might not an arbitrary and tyrannical administration carry its power. . . . If such a doctrine were true, our constitution would be nothing but a name—nay worse, a fatal instrument to sanctify oppression and legalize the tyranny which inflicts it.36 Connecticut Governor Jonathan Trumbull provided a similar rational for his state to remonstrate, noting that states needed to keep “a watchful eye towards the general government with a view, candidly to consider and judicious concern, whether the powers delegated to the United States are not exceeded.”37 When the Connecticut legislature passed its anti-embargo resolution, it cited its “duty . . . in such a crisis of affairs [to] vigilantly watch over, and vigorously to maintain the powers not delegated to the United States.”38 Rhode Island also joined the chorus by asserting its “right to express their sense of any violation of [the Constitution’s] provisions.”39 The rationale expressed by New England Federalists suggests they accepted—or were at least willing to utilize—the Madisonian system of constitutional maintenance they had rejected a decade before. But, Connecticut seemingly asserted a more robust authority than previously seen. Connecticut asserted constitutional authority that has come to be known as interposition. Governor Trumbull argued that whenever Congress oversteps its constitutional authority “on the State legislatures . . . devolves the arduous task . . . it becomes their duty, to interpose their protecting shield between the right and the liberty, and the assumed power of the General Government.”40 The Connecticut Assembly animated this idea by endorsing the governor’s decision to decline using the state’s militia to enforce the embargo and, notably, by stating that “persons holding executive offices under this State, are restrained by the duties which they owe this State, from affording any official aid as cooperation in the execution of the [embargo] act.”41 This effort built upon language that Madison had used in both the Virginia Resolution and the Report of 1800 that suggested a duty of the state to shield its citizens from unconstitutional laws. However, the Virginia legislature had not taken the additional step of restraining state officials from enforcing the Alien and Sedition Acts. Moreover, whereas Madison defended the idea that states could “arrest the progress of the evil usurpation,” he did not envision the means of arresting the progress coming from state authority but from the people.42 Madison believed that once the resolution revealed the “truth” of usurpation, “the expediency of making the declaration at the present day may safely be left to the temperate consideration and candid judgement of the public.”43 But Connecticut focused on a more coercive remedy until constitutional clarity could be achieved. At the

40  Interposing the Protective Shield close of its resolution, it pledged to “cooperate—with any other of the States, in all legal and constitutional measures for procuring such amendments to the constitution . . . [for the] protection and defence for commerce.”44 The anti-embargo resolutions suggest that, by the end of the Jefferson presidency, federalism had changed. First, there was a prevailing sense that national politics was being dominated—illegitimately to their minds—by the slave power.45 As Gordon Wood points out, “The fact that Jefferson won the election of 1800 with 82 percent of the electoral vote of the slave states and only 27 percent of the Northern states reinforced the Federalists’ fear that the South was taking over the nation.”46 Federalists regularly referred to the embargo as a southern policy.47 Being a sectional minority party that had been out of power for nearly a decade had also altered the Party’s orientation. The “new-model Federalist . . . adopted popular issues for the sake of popularity.”48 The only thing to rally the opponents of Republicanism in the North more than slavery was the embargo.49 Thus, Federalists were willing to play to popular impulses and play up a theory of sovereignty that made states capable agents of protecting the people when they voiced their opposition to a perceived usurpation. This was a remarkable departure from the efforts of Washington and the early Federalists to limit the scope of popular authority.50 Connecticut’s move to constrain the force of federal law must be seen in light of this effort at popular appeal and it is worth considering whether the appeal to sectionalism and statelevel authority may have pushed state practice in an unanticipated direction.51 Elections largely resolved the embargo crisis but the Federalist victories were not transformative. As noted above, the Federalists enjoyed their largest electoral gains in a decade. Jefferson wrote that he had “felt the foundations of the government shaken” by the petitions coming out of New England. Historians agree that the embargo was Jefferson’s greatest failure as president.52 Democratic Republicans recognized the degree of error at the time and replaced the embargo with a policy of nonintercourse on the last day of Jefferson’s presidency. This was done at Madison’s urging as he did not want such an unpopular policy to define the start of his presidency. Yet, despite the Republican retreat, they still retained power and the construction that Congress could not “annihilate” commerce failed to coalesce. Nevertheless, this episode in American constitutional politics represents an early moment in categorical thinking, which would dominate the commerce clause at the turn of the century. Antiembargo Federalists attempted to draw boundaries, clearly distinguishable, between regulation and annihilation of commerce. This approach was firmly rejected by Democratic Republicans and Federalists even seemed unenthusiastic a little over a decade later.53 Yet, here, Federalists attempted to use it against the restraining authority of the federal government. The formalistic argument in the state resolutions was made not by extensive textual analysis but on a more abstract notion of what the fundamental purpose of the Constitution was—creating a commercial republic—and what that meant for congressional authority. If such legal formalism depends heavily on a social construction that underpins the legal classification, then the embargo was problematic because it

Interposing the Protective Shield 41 produced an evil: the destruction of commercial prosperity central to the new nation. Again, this understanding of the commerce clause failed to become a proper constitutional construction that governed congressional authority. But it is worth reflecting on this early effort to foster categorical analysis related to commerce power that later became legal orthodoxy.54 At its core, the dispute over the embargo was about the Constitution. Economics certainly influenced Federalists but they crafted an interpretation of the Constitution and its purposes to which commerce and commercial rights were central. Such an interpretation prohibited both sectional economic discrimination and the destruction of otherwise legal commerce. Understanding this constitutional logic helps make sense of the Hartford Convention’s proposals. Rather than pursue secession to better serve the economic interests of the New England states who suffered greatly under the embargo, then war, then embargo and war, the Convention called for a series of constitutional amendments that reduced the influence of the South and required congressional supermajorities for embargo and war. The anti-embargo resolutions failed to produce a new consensus on constitutional meaning so the states tried a different path to maintaining what they believed was central to the constitutional project: constitutional amendment. This effort succeeded no better. However, both projects need to be understood as part of an effort to better realize held values, aspirational though they were. The anti-embargo resolutions should be understood as efforts at Madisonian maintenance. The states played the role of sentinel, sounding alarm at a national policy that it believed violated an express provision of the Constitution and the underlying purpose for which it was created. State resolutions expressed the idea that the embargo was unconstitutional and the underlying purpose for which the Constitution was created, albeit in brief. They also invited other states to join the effort, which was then taken up by sympathetic states. The effect was a policy adjustment in line with the demands of the resolving states even if no constitutional consensus hostile to embargo authority was achieved. Yet, the effort produced more than a reproduction of the earlier state efforts at constitutional maintenance. Connecticut envisioned a role for itself not just as the public sentinel that gives alarm but as an agent of disruption that could protect its citizens from unconstitutional legislation by refusing to enforce it. Connecticut took the step of commanding state officials from cooperating with the embargo and enforcement acts. Although it provided little justification for the action, it seemingly moved the effort away from creating a national consensus through an institutional dialogue and toward something more coercive. Yet, the fact that Connecticut continued to communicate its rationale and actions to other states and pledged to work toward constitutional amendments indicates that, if Connecticut drifted, it was not completely unmoored from Madisonian practice. What is notable is that the politics of the 1820s and early 1830s pushed the practice of maintenance into new and more problematic forms that were ultimately rejected due to these departures.

*****

42  Interposing the Protective Shield During the 1820s, state efforts to influence constitutionalism through resolutions began to depart from established practices in a number of ways. Madison had conceived of the practice and its legitimacy through popular authority. Whereas Madison did not lay out a complete democratic theory for these resolutions, democratic majorities were tasked with resolving constitutional conflicts. However, this period saw the justification for state remonstrances shift from the protection of the majority against illicit interests to the protection of the minority—even an interested minority—against an oppressive majority. This move required shifting the justification for the practice from popular sovereignty to state sovereignty. The emergent claim that states were sovereign was not new but they were increasingly used as a way of displacing or disaggregating the people as the ultimate arbiters of constitutional meaning. This effort is most closely associated with John Calhoun who attempted to refashion the state into the protector of local, state-based majorities against national “numerical” majorities. Calhoun’s concurrent majorities requirement did not totally break with established practices so much as it refashioned resources, created in previous episodes, to create a new system of constitutional authority capable of protecting a constitutional order protective of southern interests. Yet, as will be discussed below, the transformation foundered on this refashioning of authority when states sympathetic to the anti-tariff interpretation of the Constitution rejected the claims that states had the authority to nullify the tariff. Accounting for the rise of nullification requires understanding several threads in Antebellum politics. First, the reestablishment of the national bank and its sanction by the Supreme Court reinvigorated the Hamilton-Jefferson debate over the proper scope of national authority. Yet, given that former political opponents had capitulated in the name of expedience, those arguing for a strict reading of the Constitution became more strident. Second, sectional tensions, so vividly on display during the embargo crisis, worsened. This time it was the South’s turn to oppose national economic policy. Southern perception was that both congressional revenue raising and spending favored the North. Third, perhaps due to growing federal authority and the fears it raised about regulatory encroachment, states such as South Carolina began to make arguments about slavery that placed it outside of national authority and, thus, regulations would be inherently void against state prerogative. Each of these helped motivate the effort to change the system of state-based constitutional maintenance. When the Supreme Court decided McCulloch v. Maryland, it gave yet another victory to those who advocated for a broad construction of national authority. At first blush, this seems surprising given the dominance of the party of Jefferson but broad construction of authority had proved difficult for even its opponents to fully resist. Jefferson embraced broad authority to justify the Louisiana Purchase and the national embargo. Madison admitted that the national bank was constitutional and signed it into law. By the mid-1810s, the debate over broad versus strict construction was less between Federalists

Interposing the Protective Shield  43 and Republicans than between national Republicans and old guard Republicans. McCulloch was simultaneously praised and condemned by Republicans depending on this evolving fissure. The case itself was a surprisingly sweeping victory for a broad construction of the Constitution. Chief Justice Marshall was a well-known supporter for the bank’s constitutionality so the Court’s defense of the bank was anticipated. But Marshall went well beyond limiting attacks on the bank. Marshall wrote that the necessary and proper clause vests Congress with the authority to pursue by reasonable means the ends laid out in Article I, excepting only that which is prohibited to it. States could not interfere with these reasonable efforts, even if by exercising their authority in an otherwise legitimate manner. The supremacy clause, Marshall argued, prohibited it. Madison seemed to be stunned by the breadth of the decision. Pondering what could constrain Congress under his construction, he observed, “Nothing within the pale of the Constitution but sound arguments & conciliatory expostulations addressed both to Congress & to their Constituents.”55 Given the implications of McCulloch, the old guard responded. John Taylor published an extensive critique and a defense of state interpretive authority. In Construction Construed, and Constitutions Vindicated, Taylor noted that the American constitutional system depended on the division of authority in two ways: through “checks, collisions, and balances” and the “division of power . . . between the governments of the states, and the government of the union.”56 For the system to stay in proper balance, no branch of government could be subordinate to another, nor states to the federal government.57 It was the people who provided the authority for the national state governments and “the donor did not intend that one donation should pilfer another because it is smaller.”58 To back this claim, Taylor cites the Kentucky resolution’s argument that because the Constitution did not create a “final judge of the extent of powers delegated to [the national government] . . . each party has an equal right to judge for itself, as well of infractions as of the measure of redress.”59 He concludes that the coordinacy of the governments and their “mutuality of the right of construing the federal constitution” are “the principle, which pervades the whole.”60 By this logic, the Court’s decision in McCulloch violated the fundamental structure of the Constitution by making the supremacy clause a means for the federal government to be superior to the states. It was, to Taylor, an usurpation akin to interpreting a legislative veto into life.61 Judicial review could only be justified through coordinacy, not through supremacy. McCulloch, then, represented a fundamental violation of the constitutional order. And, he argued, “the remedy must lie in a return to those [constitutional] principles, and no where else.”62 South Carolina was the first to establish a path to such a restoration of state authority. In the wake of the Denmark Vesey Affair, South Carolina enacted a cordon sanitaire in 1822, which required free black sailors to be jailed while their ship was docked in its ports and not freed until the captain of the vessel paid for the expense of the detention.63 Should the captain fail to pay the

44  Interposing the Protective Shield reimbursement, the black sailor could be deemed a slave and sold. The South Carolina statute conflicted with a treaty between the United States and Great Britain that authorized foreign sailors to enter the port cities of the other country. A legal challenge was filed in federal court and South Carolina defended its law by arguing that as “a sovereign state cannot surrender a right of vital importance” such as “ex necessitate” powers to control its slave population. Echoing Taylor’s argument, South Carolina denied that the state surrendered its regulatory authority to control its ports when it adopted the Constitution and asserted that “she is herself the sovereign judge” of her own authority.64 Justice William Johnson heard and decided the case but did not buy the state’s defense. Rather, he rejected South Carolina’s argument and struck down the law, writing that the authority claimed by the state was “altogether irreconcilable with the powers of the general government . . . and implies a direct attack upon the sovereign authority of the United States.”65 South Carolina continued to enforce the statute after Justice Johnson’s decision. Great Britain lodged objections with the State Department and, in response, Secretary of State John Quincy Adams requested an opinion on the constitutionality of the South Carolina law from Attorney General William Wirt. Wirt’s opinion echoed Justice Johnson’s decision by noting “the regulation of congress on this subject [is] both supreme and exclusive [such that] no state can add to them, vary them, obstruct them, or touch the subject in any shape, whatever, without the concurrence and sanction of congress.” Wirt concluded that the cordon sanitaire was unconstitutional and void.66 Wirt’s opinion was communicated to South Carolina and it responded by again defending the law as an appropriate use of its sovereign authority. In a message to the South Carolina legislature, Governor John Wilson recommended, “A firm determination to resist, at the threshold, every invasion of our domestic tranquility, and to preserve our sovereignty and independence as a state.” Wilson concluded that if an appeal to the first principles of the right of self-government be disregarded . . . there would be more glory in forming a rampart with our bodies on the confines of our territory, than to be victims of a successful rebellion, or the slaves of a great consolidated government. The state senate followed suit and passed a resolution asserting that the Attorney General’s opinion was an “unconstitutional interference with her colored population, whose condition . . . is expressly recognized (paragraph 3 of sec. 2 of art. 1), and distinctly guaranteed by that instrument.” Not satisfied relying on its interpretation alone, the state senate asserted an extra-textual source of authority, declaring that its duty . . . to guard against insubordination or insurrection among our colored population . . . is paramount to all laws, all treaties, all constitutions. It arises from the supreme and permanent law of nature, the law

Interposing the Protective Shield 45 of self-preservation; and will never, by this state, be renounced, compromised, controlled or participate with any power whatever.”67 South Carolina’s assertions were disputed but unchallenged. In fact, Andrew Jackson’s administration accommodated South Carolina’s stance by effectively overturning Wirt’s opinion. Attorney General Berrien drafted an opinion stating that the state’s actions were necessary regulations fully consistent with state authority under the Constitution.68 During this period, all southern coastal states enacted similar requirements of free black sailors. South Carolina appeared uninterested in sparking a wider dialogue or even in mobilizing popular support for its assertions. The legislature neither sought the opinion of its sister states, nor did it request further deliberation among the national departments of government. Rather, its position was asserted as definitive and final: states, under their police authority, had the absolute right to protect themselves and their citizens against a slave revolt. Any authority that the national government possessed that touched upon the state’s policing authority, such as the treaty power, must give way to the right of the state. Implicit in South Carolina’s claim was that not only does the state’s police authority trump federal authority but that the state’s interpretation of this authority trumps any other, be it executive, legislative, or judicial. The South Carolina legislature did not identify the source of its authority— other than noting the “law of self-preservation”—but, ostensibly, the locus was sovereignty. Sovereignty had been asserted on any number of occasions before so this, in and of itself, was not new but the formulation matters. In 1798, claims of sovereignty were linked to popular authority. Madisonian maintenance required the sovereign people to provide authoritative resolution to a constitutional conflict. But here, the state authority was elevated. The people in their sovereign capacity had created the states which, in turn, created the general government through a social compact. As agents of the sovereign people, the states were duty bound to protect the natural rights of the people, inclusive of self-preservation. South Carolina asserted this right against a potential slave revolt and, given that they did not assign this policy authority to the national government, it could not be interfered with. Popular authority was not needed to resolve the dispute because South Carolina, a creation of the people, was acting to protect the people. Much as Taylor argued, South Carolina treated its power as supreme and its interpretation of that power as definitive. National authority, whether associated with the treaty power or judicial authority to resolve controversies, could not trump their interpretation. Nor were national popular majorities necessary for resolving these disputes because the only people who mattered were the people of South Carolina. These were notable shifts in the claims of constitutional authority. Once it was possible for the constitutional order to shift via popular authority, states like South Carolina believed constitutional maintenance required protecting the constitutional order against any encroachment on slavery despite what popular majorities might want. South Carolina did

46  Interposing the Protective Shield this on an issue that few national political elites disagreed with. No serious national politician in the early 1820s denied that states had the general authority to control their slave population. Concern among national elites centered on the embarrassment South Carolina’s cordon sanitaire could cause, not on how it affected national policy as a whole. For its part, South Carolina likely recognized the slavery issue gave it sufficient capital to ignore the national government’s protests but insufficient authority to press the scope of its sovereignty claim. Much as the Supreme Court regularly asserted its authority without exercising it during this same period, South Carolina asserted a sovereign authority greater than the Constitution itself on a political issue that failed to mobilize any substantial opposition. As the issues of internal improvements and the national tariff became salient, the contrast between past practice and the innovations to those practices became more stark and the focal point of new conflicts.

***** On the heels of the cordon sanitaire controversy, state-based maintenance practices further fractured over internal improvements. Until the administration of John Quincy Adams, the prevailing constitutional thought cast skepticism on the constitutionality of internal improvement spending. Madison argued the practice was unconstitutional. James Monroe believed that, in limited circumstances, Congress could fund projects of national significance but funding a system of national transportation would be unconstitutional. But Adams held much more expansive notions on what the federal government could and should do and he enthusiastically embraced programs of improvement. Spending on improvement surpassed all such previous spending combined.69 Such a change in national policy was disconcerting to many southern states as it rested on a broader construction of the Constitution than they were ideologically committed to and the legislation was perceived as redistributive and interested with the primary benefit going to middle and northern states. Opposition to internal improvements gained little traction in either Congress or the courts. Jefferson counseled a return to the strategy of 1798. Passing resolutions of protest would “give a gleam of encouragement to our friends or alarm their opponents in their fancied security.”70 Allied public officials like John Wilson, governor of South Carolina, also believed that resolutions would fulfill the states’ “duty as public sentinels to give alarm, in order that those friendly to the present constitution may preserve it in its original purity.”71 States like South Carolina, Virginia, and Georgia were of like mind and passed resolutions declaring, in the words of both the South Carolina and Virginia resolutions, that “Congress does not possess the power, under the constitution to adopt a general system of internal improvement as a national measure.”72 Georgia made a more explicitly compact argument that asserted all powers not conveyed to the general government resided with “the People of the respective States.”73 Public officials maintained that the purpose of the resolutions was to activate the people in their elective capacity.74

Interposing the Protective Shield 47 The resolving states viewed their practice as consistent with the resolutions of 1798 yet there were subtle differences. The legislatures broke with the tradition of explicitly calling for the transmission of the resolutions and inviting other states to similarly protest. The focus of the resolutions appeared to be aimed within the state rather than in producing a national response. The resolutions contained no new claim of constitutional authority but nor did they seem to vigorously pursue a national consensus. The lack of effort to spark a wider dialogue may reflect recognition that there was broad national support for internal improvement spending. The waning ability to win through popular election created incentives to abandon those practices that offered only challenging paths to maintain the old constitutional order. Protests over internal improvements gave way to protests over the tariff following a new schedule passed by Congress in 1828. The substance of these protests echoed complaints regarding internal improvements. The tariff was “impolitic and oppressive in its operation on the southern states and ought to be resisted by all constitutional means.”75 Thomas Cooper, president of South Carolina College, declared that [t]he avowed object [of the tariff] now is, by means of a drilled and managed majority in congress, permanently to force upon us a system, whose effect will be to sacrifice the south to the north, by converting us into colonies and tributaries.76 Alabama echoed this theme in its protest of the tariff, When combinations . . . endeavor to throw the overgrown weight of the General Government upon Southern and Southwestern States, dry up their commerce by sapping its foundation, degrade them from the proved equality of the Compact, into the humiliating condition of dependent tributaries to the greedy monopolists of the north and east—the victims would deserve the oppression, were they not promptly to interpose the most determined and unyielding resistance.77 The Georgia legislature insisted “on the necessity of compromising sectional interests for the general good.”78 John Calhoun understood these complaints and incorporated them into what became a grand revision of American constitutional theory. This new theory was designed to address what Calhoun believed to be a new problem in political life: oppression of the minority. Calhoun argued that neither the system of checks and balances nor the majoritarian electoral system protected the interests of the political minority.79 If anything, the 1828 tariff proved that economic interests outside the South had effectively aggrandized themselves to the detriment of the southern economy. Given the systemic failure to prevent oppression, Calhoun argued it was necessary to enable each interest in society a veto on the execution of unequal laws. This was impractical as no existing

48  Interposing the Protective Shield institutional mechanism could give each interest a direct veto. Calhoun remedied this by turning to the states as the most appropriate receptacle of this authority.80 As a practical matter, Calhoun believed a state veto gave each interest the best opportunity for their voice to be heard. As a theoretical matter, states were the only vehicle for this veto authority because it was the states that were sovereign. Calhoun asserted that the “Constitution of the United States, was formed by the sanction of the States, given by each in its sovereign capacity.”81 As sovereigns, states enjoyed interpretive authority. “The right of judging . . . is an essential attribute of sovereignty of which States cannot be divested.”82 Calhoun thus shifted sovereignty away from the people in their elective franchise and vested states with a constitutional veto. The relocation of constitutional authority gave states something akin to judicial review’s settlement power. So not only did states have the right to interpret the Constitution for themselves but the power to settle its meaning. This, according to Calhoun, was the only way to protect the minority against the majority.83 Calhoun’s constitutional theory was innovative, not just for where it placed veto authority but also for the way it reforged the role of the state in constitutional politics. Calhoun took practices designed to create political coalitions capable of achieving constitutional settlement and transformed them into hierarchical assertions of authority. Madisonian democracy was designed to trigger popular sovereignty as the settlement point. In effect, this created some space for constitutional disagreement until popular consensus was achieved and realized through a (new) political coalition. Calhoun’s theory effectively shut this down while relying on the same logic of state participation. Calhoun cited the resolutions of 1798 and Madison’s Report of 1800 as “explicitly affirm[ing] the right of the States in their sovereign capacity of deciding in the last resort on the question of the infraction of their rights and remedy.” Madison himself responded to these assertions, rebutting Calhoun in letters that were made public at the time. Specifically, Madison condemned, “establishing a positive and . . . permanent rule giving a power to such a minority over such a majority [that] would overturn the first principle of free government.”84 Madison further emphasized the resolutions as a part of democratic politics, espousing constitutional logics that would invite response by other states. States were not supreme but rather participants in a process of constructing constitutional consensus. Yet, despite Madison’s protestation, Calhoun’s theory resonated deeply in the South as its economy struggled and the “Tariff of Abominations” was blamed. South Carolina’s embrace of Calhounian nullification began in 1828. A legislative committee of the South Carolina legislature ordered 4,000 copies of Calhoun’s South Carolina Exposition for distribution.85 Although South Carolina restrained from assertion of sovereign rights at that time, the threat of nullification was clear. The following year, South Carolina escalated its rhetoric, declaring the tariff “deliberative and highly dangerous and oppressive violations of the constitutional compact” and threatening to act under its “sovereign

Interposing the Protective Shield 49 capacity” for the purpose of arresting the progress of the evil occasioned by the said unconstitutional acts.”86 In 1831, the South Carolina legislature reported that its constitutional judgment was paramount to that of Congress and that, if it declared a law unconstitutional, the law had no effect. This was also the first time that South Carolina threatened to withdraw from the Union.87 These documents indicate bolder assertions of constitutional authority and further detachment from its Madisonian foundations. Yet, the protests of South Carolina and other southern states helped generate a legislative coalition willing to revise the tariff. Despite tariff revision in 1832 that “put back, in the main . . . where it had been in 1824,” South Carolina advanced from asserting its authority to acting upon it. A special convention was authorized by the state legislature, which, in turn, voted to ratify an ordinance that nullified both the tariffs of 1828 and 1832. The ordinance itself is instructive as to how nullifiers treated both interpretation and authority. The ordinance treated constitutional meaning as fixed and determined. The tariffs “violate[d] the true meaning and intent [of the Constitution] and are null, void, and no law.” It also made the ordinance “binding upon this State, its officers, or citizens” and obligated the state legislature to “adopt such measures and pass such acts . . . to give full effect to this Ordinance.” The judiciary was explicitly stripped of any authority to review the ordinance. In what may have been the pinnacle of coercive authority, the ordinance required “all persons now holding any office or honor, profit, or trust, civil or military under this State (members of the Legislature excepted) shall  .  .  . take oath, well and truly to obey, execute and enforce this Ordinance.”88 The oath gave the ordinance authority over the Constitution, or, rather, ensured that officials in South Carolina would need to interpret the Constitution consistent with the ordinance. Most southern states agreed with South Carolina’s constitutional interpretation. Much as with internal improvements, the South largely viewed the tariff with hostility. These states expressed their constitutional concerns through state resolutions. North Carolina declared “the tariff laws . . . unwise, unequal in their operation, and oppressive to the southern states.”89 Alabama employed the most common phrasing when it resolved that the tariff was “unequal, unjust, oppressive, and against the spirit, true intent, and meaning of the constitution.”90 The Georgia legislature resolved that “the tariff of 1828 does not accord with the spirit of the constitution of the United States, but . . . is a palpable violation of it.”91 Yet, these states claimed authority consistent with Madisonian maintenance. Georgia passed a resolution supporting state authority to “pronounce upon the constitutionality of the acts of the congress of the United States.”92 Virginia declared that “each state has the right to construe the Compact for itself.”93 Even Kentucky, a state that supported the tariff and was highly critical of South Carolina in the lead-up to nullification, noted that each state, “has the incontestable right freely to form and to publish to the world, its opinion of any and of every act of the federal government.”94

50  Interposing the Protective Shield States sympathetic to an anti-tariff interpretation of the Constitution rejected the authority of states to settle constitutional meaning. Alabama declared that the idea of “South Carolina . . . dictating policy to Congress . . . [was] appalling.”95 Virginia explicitly declared that nullification was inconsistent with its resolution of 1798.96 States noted that the departure from the people as final arbiters of meaning was deeply problematic. Kentucky stated that it “could not admit the right of a minority . . . to set up their opinion not only in opposition, but to overrule that of the majority.”97 North Carolina rejected imposing its interpretation despite that it believed that “[l]arge majorities of the people think [the tariff] unconstitutional.”98 Mississippi urged South Carolina to “await patiently the gradual progress of public opinion.”99 Alabama’s governor spoke of the proper constitutional remedy being “the elective principle.” By 1832, state-based constitutional maintenance was a regular and recurrent feature of American politics. States continued to assert the constitutional logics throughout the nullification crisis and even after South Carolina retreated from its assertions. States that rejected South Carolina’s assertion of constitutional authority while simultaneously embracing its constitutional interpretation did so consistent with established practice. These states seemingly embraced the popular, democratic roots of Madisonian maintenance and chaffed at South Carolina’s effort to coerce constitutional settlement. In fact, southern states were largely consistent to this point in their rejection of practices that attempted to settle constitutional disputes through edict rather than popular mechanisms. Much as they rejected Marshall’s attempt to impose a broad construction of national authority on the Constitution, they similarly rejected South Carolina’s effort to impose a narrow construction of national authority. It was the “incontestable right freely to form and to publish to the world, its opinion” that triggered the “elective principle” and thereby the proper authority to resolve disputes over meaning.

***** Nullification was defeated but states continued to exercise their authority to articulate constitutional reasons and use their authority, to the extent they could, to achieve that vision. This was abundantly clear in the politics of fugitive slaves. States had long engaged in efforts to maintain the constitutional order by balancing the rights of owners against the state’s duty to protect free persons of color who resided in the state and, more generally, the interests of the people upon the issue of slavery. The Fugitive Slave Act of 1793 had left significant leeway for states to legislate and states like Pennsylvania and New York took this opportunity to strike a balance that tipped in favor of accused fugitives. Such personal liberty laws were not outright hostile to the rights of slave owners but, by forcing recaption through state action and providing for jury trials to contest an accused’s detainment, these states made the process onerous while providing an opportunity for the local community to assert their perspective on these matters. These laws played important roles in maintaining anti-slavery conceptions of the constitutional order. Whereas the Constitution

Interposing the Protective Shield 51 clearly permitted and protected slavery, many northerners shared the beliefs of many Framers that slavery was not a permanent fixture. But, by the 1820s, southerners rejected that slavery was a necessary evil and adopted a posture that slavery was an essential—and essentially good—economic and social practice. For those desirous of slavery’s end, containment was emerging as the hope for its demise. Territorial confinement was critical to this so that slavery’s political power would wane. But so, too, was containing slavery’s legal reach. The fugitive slave clause created an extraterritorial reach to slavery that enhanced its viability. Thus, personal liberty laws that made fugitives from slavery more difficult to apprehend and return were consistent with a constitutional vision that anticipated slavery’s demise. Personal liberty laws also provided an institutionalized means of resistance. In the portions of the free states where anti-slavery sympathies were particularly acute, it had not been uncommon for slavecatchers to be met with violence by local residents when they sought to detain an alleged fugitive. Such incidents were met by outrage in the South and claims that the constitutional privileges of slave owners were being denied. Southerners complained bitterly about the failure of the North to vigorously enforce the rights of slave owners. Henry Clay declared this problem the “most irritating and inflammatory to those who live in slave states.”100 To avoid both private violence and sectional agitation, free states provided due process and jury trials— effectively they institutionalized the means of resisting fugitive retrieval. By blending due process and anti-slavery resistance, northern states argued that they were both protecting constitutional commitments and advancing a constitutional order in which the reach of slavery was mitigated by (free) state authority. The ability of northern states to perform this type of maintenance was significantly constrained by the Supreme Court and, later, Congress. In 1842, the United States Supreme Court heard a challenge to Pennsylvania’s personal liberty law. At issue was whether the federal law of 1793 governing fugitive slaves superseded the authority of the states to provide processes, requirements, and penalties related to their return. Pennsylvania made an argument similar to South Carolina’s argument in defense of its cordon sanitaire: states possess the right “to legislate on this subject for the preservation of their own peace and the protection of their own soil from insult and aggression.” It further argued that, should the state’s authority in this area be denied, “you [will] arouse a spirit of discord and resistance, that will neither shrink nor slumber till the obligation itself be cancelled, or the Union which creates it be dissolved.” Despite the dire prediction about the damage an adverse ruling would do to maintaining the constitutional order, the Court read the fugitive slave clause to bind the national government “through its own proper departments, legislative, executive, or judiciary, as the case may require, to carry into effect all the right and duties imposed upon it by the Constitution.” States could not define the constitutional order through their legislation—even in the name of maintenance, because “[w]here Congress have exclusive power over a subject,

52  Interposing the Protective Shield it is not competent for State legislation to add to the provisions of Congress on that subject.”101 To contemporary eyes, Prigg is seen as among “the worst Supreme Court decision ever issued” but the case did not cause great tumult at the time save for abolitionists.102 A few states, like Massachusetts, responded by removing state aid from the process of recapturing fugitive slaves, including prohibiting any state official from facilitating capture, denying access to local courts, and even prohibiting the use of public buildings for detainment. In 1847, Pennsylvania passed a similar law although it included a provision that permitted state judges to issue a writ of habeas corpus to “inquire into the causes of legality of the arrest or imprisonment of any human being within this commonwealth.”103 Prigg and the uncooperative stance of states like Massachusetts and Pennsylvania invited Congress to revise federal law and it was the enactment of the Fugitive Slave Act of 1850 that brought efforts by states to contest the constitutionality of the law. Despite deep divisions and expressions of hostility to any effort by the free states to hinder the recaption process, moderates in Congress were able to secure a new law that created an enforcement regime, including increasing the number of officials authorized to hear and certify removal cases. Circuit courts would appoint commissioners that could appoint persons to execute warrants and those commissioners could also authorize ordinary citizens to assist in their efforts. The law also recognized the right of owners or their agents to capture without official aid. They simply had to take the accused fugitive before a judge or commissioner and provide satisfactory proof of ownership. The accused’s testimony in these proceedings was prohibited and the law barred any additional (state) process from occurring.104 Advocates of the law argued that it was necessary to preserve the Union at a time when the threads of unity had begun to unravel. Opponents of the new law argued that it deeply damaged core constitutional commitments and, unless states acted, tended to jeopardize union. Much as Pennsylvania had argued that its personal liberty law enhanced the stability of the nation, institutionalizing hindrances had the benefit of reducing the perceived necessity of private violence. Leaving space for state regulation enhanced order and lawfulness, even if the process made recapture more difficult. The delegitimation of resistance was a frequent talking point. President Fillmore declared the Fugitive Slave Act “as a settlement in principle and substance.”105 Benjamin Curtis, speaking a few months before his appointment to the United States Supreme Court, noted that without a legitimate means of states to safeguard the rights of their citizens “forcible resistance of law . . . can be nothing less than a case for revolution, and in a revolution it must end, if its progress be not checked.”106 True to such predictions by 1859, this sentiment had grown to the point that an Ohio lawmaker argued that if the state courts could not grant habeas relief, “the people of the Western Reserve must Grant it—sword in hand if need be.”107 So it was argued that without formal recourse, only private means would remain and, with it, greater sectional agitation and disharmony.

Interposing the Protective Shield  53 The Fugitive Slave Act did not fully stop state action. Numerous states proposed new laws that would facilitate resistance. Massachusetts, Ohio, and Wisconsin all enacted laws that provided aid to accused fugitives and provided for habeas relief. Whereas the attempt to provide habeas relief was a notable challenge to the purpose of the act, states also made the case that the law was unconstitutional as “for want of power in Congress to legislate upon the subject.” Ohio passed one of the first such resolutions and asserted that Congress’s power “of legislating upon the subject of Fugitives from service is not to be found.” The resolution further asserted that due process protections were affirmatively granted in the Constitution further restricting congressional authority. The resolution asserted that the due process rights also created an obligation on state courts to “allow the writ of habeas corpus to all persons applying for the same.”108 Congressional authority was not the only target in these resolutions. States like New York and Wisconsin attacked pro-slavery decisions like Dred Scott v. Sandford and Ableman v. Booth and the authority claimed by the Court to decide them.109 New York condemned the Court for identifying “with a sectional and aggressive party.”110 Responding to the Court’s invalidation of the Wisconsin Supreme Court’s issuance of habeas to a federal marshal holding an accused fugitive slave, Wisconsin asserted that the Court engaged in “an arbitrary act of power, unauthorized by the constitution, and virtually superceding the benefit of the writ of habeas corpus.” Further, Wisconsin argued the decision was based upon an assumption of power and authority . . . to become the final arbiter of the liberty of citizens . . . in direct conflict with that provision of the constitution of the United States, which secures to the people the benefits of the writ of habeas corpus.111 The resolution concluded that the actions of the Court were “void, and of no force” and that the state had the “equal right to judge for itself” those powers delegated to the national government. This language, taken from the Kentucky resolution of 1798, echoed well-worn arguments about the role of states in constitutional conflicts. This was appropriate enough given that the states were asserting old claims of constitutional authority in the attempt to realize a pre-Prigg interpretation of the Constitution that would permit balance through subnational policymaking. The effort by northern states to reinvigorate the old system of maintenance rested on pre-nullification practices. States remonstrated against judicial decisions and national legislation to protest and oppose the sweeping changes. They did so in ways that were both responsive to and provocative of public demands within the state. New York cited the Virginia resolution of 1798 and, as noted above, Wisconsin took a section almost word for word from the Kentucky resolution of 1798.112 Although there was no discussion in the legislative record, it appears that employing the first Kentucky resolution was almost

54  Interposing the Protective Shield certainly used to poke southern critics of northern liberty laws. But the language was also a means of legitimating their actions. Just three years prior in its national platform, the Democratic Party had praised Jefferson and the “spirit [of liberty] which swept the alien and sedition laws from our statute-books.”113 Wisconsin agreed, if with a different object in mind to be swept away. But nullification’s shadow is equally clear. Wisconsin included a passage from the Kentucky resolution of 1799 but they removed the reference to nullification and inserted the words “positive defiance.” It is far from clear what this meant but for years nullification had been used as a criticism of the disruptive efforts of the states.114 Moreover, even northern anti-slavery politicians thought nullification a “rotten and flimsy material.”115 Yet, it is worth noting that state efforts to affect the politics of slavery were different than the Alien and Sedition Acts or the embargo. Almost no effort was made to collaborate with other states—resolutions did not provide for their own dissemination as past resolutions had and most resolutions contained no suggestion of concerting action with other states to affect change. Between this and the effort of states to “interpose” their laws between the national government and the citizens of the state, these resolutions have an inward gaze and focused on the internal dynamics of the state in relation to the national law and not on sounding a general alarm to alert and mobilize the people. In fact, Wisconsin removed such language from their resolution. Initially, the resolution stated it would never submit to usurpation “without an appeal to the people.” But this was removed for a declaration of state authority. In other words, much like with nullification, states did not look to the people to resolve the conflict. These resolutions seem to indicate that anti-slavery constitutionalism was sustained by joining the moral superiority of its higher law claims with the authority of the states. This proved deeply problematic when it came to maintaining the Union. Mark Graber argues that the only way the Antebellum constitutional order could be maintained is if “constitutional settlements were . . . endorsed by crucial elites in both the slave and free states.”116 Madisonian maintenance relied on popular authority to endorse a constitutional vision, providing electoral incentives for politicians to realize that vision. For settlement to emerge, then, the scope had to be national. Sectionalism turned the focus away from the national. State action reflected this. As states resolved their particular constitutional visions, the audience of concern seemed to be internal to the state. If Madisonian maintenance depended on articulating common cause, a correspondence among the states, and concerting plans of resistance, then it is no wonder that state efforts fared no better than other sources of maintenance, like judicial review. The analogy between state-based maintenance and judicial review is particularly apt here. A plausible reading of history is that as states moved away from national, dialogic approaches, their efforts to maintain space for state legislation on slavery, and thereby alter the constitutional order, helped advance constitutional failure. South Carolina’s justification for seceding from the Union turned largely on the issue of fugitive slaves. In summarizing their complaints,

Interposing the Protective Shield 55 it declared, “Those [non-slaveholding] states have assumed the right of deciding upon the propriety of our domestic institutions; and have denied the rights of property established in fifteen of the States and recognized by the Constitution.”117 There is, of course, great irony in South Carolina objecting to other states attempting to impose their understanding of constitutional obligations on other states but it, nevertheless, reveals how poorly state efforts advanced constitutional maintenance. Scholars point out that the centrality to constitutional arrangements likely made ordinary means of maintenance ineffectual.118 Yet, the link between state authority to interpret the Constitution and the theory of social compact used to justify secession deeply damaged the perceived legitimacy of nonjuridic constitutional interpretations by state institutions. It did not stop them from happening but future episodes had to negotiate the legacies of nullification and even secession, which led to new forms and justifications in the practice. It is also worth asking what effect, if any, northern state efforts had on the development of constitutionalism. The Civil War and the Thirteenth Amendment put an end to the issue of fugitive slaves. But the arguments regarding constitutional authority advanced by northern states likely had more durable effects. In making the case against the extension of slave owner authority, northern states advocated for local autonomy. In doing so, they relied on constitutional tradition grounded in decentralization. Layering on these claims, the due process arguments made went no further than to put free blacks on equal footing with free whites. This was certainly important and sufficiently provocative to contribute to division. But both of these proved deeply problematic in reconstructing the South. The commitment to decentralization left states largely autonomous in the exercise of its policing authority. The commitment to legal equality proved both short-lived and unequal to the demands of full equality during reconstruction.119 Voicing a commitment to a constitutional vision in a resolution is an intentional act; a choice that signals a commitment that differentiates and is often durable.120 It is possible that these particular commitments, so powerful in advocating for racial egalitarianism before the Civil War, helped hamper the realization of that equality after the war.

Notes 1 Justin Crowe, Building the Judiciary: Law, Courts, and the Politics of Institutional Development (Princeton: Princeton University Press, 2012). 2 James Madison, “Federalist 49,” in The Federalist Papers, ed. Clinton Rossiter (New York: Penguin Putnam, 1961), 282–3. 3 Mark A. Graber, “Establishing Judicial Review: Marbury and the Judiciary Act of 1789,” Tulsa Law Review 38, no. 4 (2003): 609–50. 4 Paul A. Gilje, Free Trade and Sailors’ Rights in the War of 1812 (New York: Cambridge University Press, 2013), 152–7. 5 Jefferson wrote that the incident “touched a chord which vibrates in every heart. Now then is time to settle the old and the new.” See, Louis Martin Sears, Jefferson and the Embargo (New York: Octagon Books, 1966), 29. Jefferson also observed, “Never since the battle of Lexington have I seen this country in such a state of

56  Interposing the Protective Shield exasperation as at the present, and even that did not produce such unanimity.” See John Meacham, Thomas Jefferson: The Art of Power (New York: Random House, 2012), 425. 6 Thomas Jefferson, “To Robert R. Livingston (September 9, 1801),” in The Papers of Thomas Jefferson, Volume 35 1 August to 30 November 1801, ed. Barbara B. Oberg (Princeton: Princeton University Press, 2007), 242. 7 Jefferson, The Papers of Thomas Jefferson, Volume 35, 243. 8 Thomas Jefferson, “To George Logan (March 21, 1801),” in The Papers of Thomas Jefferson, Volume 33 17 February to 30 April 1801, ed. Barbara B. Oberg (Princeton: Princeton University Press, 2007), 391. 9 1 Stat 400 (1794); David Currie, Constitution in Congress: The Federalist Period, 1789–1801 (Chicago: University of Chicago Press, 1997), 184. 10 In relation to the war powers, the authority to ban trade was incidental to Congress power to prepare for war because a formal declaration of war had not been passed in any of these incidents. 11 See, Alexander Murray v. Schooner Charming Betsy, 2 Cranch 64 (1804). 12 1808 U.S. Dist. LEXIS 5; 28 F. Cas. 614 (D. Mass. 1808). 13 1808 U.S. Dist. LEXIS 5, 31, 32. 14 Ibid., 36–7. 15 “Resolution of Massachusetts,” The National Intelligencer and Washington Advertiser, June 10, 1808. 16 Gordon S. Wood, Empire of Liberty: A History of the Early Republic, 1789–1815 (New York: Oxford University Press, 2009), 655. 17 “Resolutions,” in State Documents on Federal Relations: The States and the United States, ed. Herman V. Ames (Philadelphia: History Department of the University of Pennsylvania, 1906), 34–6. 18 “The General Court of Massachusetts on the Embargo,” State Documents, 31. 19 Ibid., 32. 20 Ibid; Richard Buel, America on the Brink: How the Political Struggle Over the War of 1812 Almost Destroyed the Young Republic (New York: Palgrave Macmillan, 2005), 45. 21 Josiah Quincy, Annals of Congress, House of Representatives, 10th Congress Second Session, 542. 22 Ibid., 542; “Resolutions of the Connecticut General Assembly,” State Documents, 41. 23 “The General Court of Massachusetts on the Embargo,” State Documents, 30. 24 Douglas Lamar Jones, “ ‘The Caprice of Juries’: The Enforcement of the Jeffersonian Embargo in Massachusetts,” The American Journal of Legal History 24, no. 4 (1980), 307–70, 326–7. 25 John Quincy Adams, “To William Branch Giles (January 16, 1809),” in Writings of John Quincy Adams, Volume 3, ed. Worthington Chauncey Ford (New York: The Macmillan Company, 1914), 287–8. 26 “The General Court of Massachusetts on the Embargo,” State Documents, 32. 27 Buel, America on the Brink, 48. 28 For example, Representative Matthew Lyon (KY) detailed on the House floor “the injury done [by the embargo] to the cause of republicanism.” See Annals of Congress, House of Republicans, 10th Congress, 2nd Session, 552–3. 29 Gilje, Free Trade and Sailors’ Rights in the War of 1812, 166. 30 Sears, Jefferson and the Embargo, 176. 31 Guide to United States Elections, 3rd ed. (Washington: Congressional Quarterly, 1994), 293. 32 Sears, Jefferson and the Embargo, 176. 33 “Answers of the States—Massachusetts,” Debates in the Several State Conventions on the Adoption of the Federal Constitution, Volume 4, ed. Jonathan Elliot (Washington, DC: Printed for the Editor, 1836), 534.

Interposing the Protective Shield 57 34 “[T]here are stages when questions can no longer be usefully open to controversy and opposition. Stages when an end must be put to debate and a decision thence resulting be repeated by its prompt and faithful execution, or Government looses [sic.] its existence and the people are ruined,” Resolves of the General Court of the Commonwealth of Massachusetts (1809), 223. 35 “Extract from the Answer of the Senate, January 1809,” State Documents, 29. 36 “Exacts from the Answer of the House,” State Documents, 31. 37 “Speech of Governor Jonathan Trumbull at the Opening of the Special Session of the Legislature, February 23, 1809,” State Documents, 40. 38 “Resolutions of the General Assembly,” State Documents, 41. 39 “Report and Resolutions of Rhode Island on the Embargo,” State Documents, 43. 40 “Speech of Governor Jonathan Trumbull,” 40. 41 “Resolutions of the General Assembly,” 41. 42 “Report of 1800,” Debates in the Several State Conventions, Volume 4, 549. 43 Ibid., 550. 44 “Resolutions of the General Assembly,” 42. 45 See Leonard L. Richards, The Slave Power: The Free North and Southern Domination, 1780–1860 (Baton Rouge: LSU Press, 2000). 46 Wood, Empire of Liberty: A History of the Early Republic, 1789–1815, 532. 47 For example, the Connecticut Courant referred to the embargo as “the Virginia policy of destroying our commerce.” Sears, Jefferson and the Embargo, 178. 48 David H. Fischer, “The Myth of the Essex Junto,” The William & Mary Quarterly 21, no. 2 (1964), 191–235, 228. 49 Wood, Empire of Liberty: A History of the Early Republic, 1789–1815, 533. 50 Christian C. Fritz, American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War (New York: Cambridge University Press, 2008), 153–89. 51 Fischer, “The Myth of the Essex Junto,” 233. 52 Wood, Empire of Liberty: A History of the Early Republic, 1789–1815, 655. 53 In Gibbons v. Ogden, 22 U.S. 1 (1824), the Court rejected the distinction between navigation and commerce. Chief Justice Marshall wrote, “The counsel for the appellee would limit it to traffic, to buying and selling, or the interchange of commodities, and do not admit that it comprehends navigation. This would restrict a general term, applicable to many objects, to one of its significations. Commerce, undoubtedly, is traffic, but it is something more; it is intercourse.” 54 See United States v. E.C. Knight Co., 156 U.S. 1 (1895); Morton J. Horwitz, The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy (New York: Oxford University Press, 1992), 193–203. 55 James Madison, “To Spencer Roane (May 6, 1821),” in The Writings of James Madison, Volume 9, 1819–1836, ed. Gaillard Hunt (New York: G.P. Putnam’s Sons, 1910), 58–9. 56 John Taylor, Construction Construed, and Constitutions Vindicated (Richmond: Shepherd & Pollard, 1820), 52–3. 57 Ibid., 61. 58 Ibid., 108. 59 Ibid., 134. Taylor readily admits that the Court has the rightful authority to review federal laws so as to preserve checks and balances at the federal level but only state courts can invalidate state laws so as to avoid jeopardizing federalism’s balance while still enabling balance within the state governments. 60 Taylor, Construction Construed, 134. 61 Ibid., 129. 62 Ibid., 315. 63 Philip Hamer, “Great Britain, the United States, and the Negro Seamen Acts, 1822– 1848,” The Journal of Southern History 1 (1935): 3–28. 64 Niles’ Weekly Register XXV (Baltimore: The Franklin Press, 1823), 13.

58  Interposing the Protective Shield 65 Ibid., 14. 66 Niles’ Weekly Register XXVII (Baltimore: The Franklin Press, 1824), 263. 67 Ibid., 264. 68 Hamer, “Great Britain, the United States, and the Negro Seamen Acts,” 15. 69 Victor L. Albjerg, “Internal Improvements Without a Policy,” Indiana Magazine of History 28 (1932): 168–79, 173. 70 Thomas Jefferson, “To James Madison (December 24, 1825),” in The Works of Thomas Jefferson, Volume 7, ed. H. A. Washington (New York: Townsend Mac Coun, 1884), 422. 71 “Concerns of the States,” Daily National Intelligencer, December 13, 1824. 72 “South Carolina on Internal Improvements and the Tariff,” State Documents, 139; “Resolutions of Virginia, March 4th, 1826,” State Documents, 142. 73 Niles’ Weekly Register XXXIII (Baltimore: The Franklin Press, 1827), 325–8. 74 For example, Governor Wilson claimed that the ultimate remedy rested with “the people, who alone possess the corrective in their elective franchise.” See Daily National Intelligencer, December 13, 1824, 3. 75 “Resolutions of Mississippi,” State Documents, 156. 76 Thomas Cooper, “The Value of Union Speech,” in The Nullification Era: A Documentary Record, ed. William W. Freehling (New York: Harper & Row, 1967), 21. 77 “Remonstrance of Alabama,” State Documents, 151. 78 “Extract from Memorial of Georgia on the Subject of the late Tariff to the AntiTariff States,” State Documents, 154. 79 John C. Calhoun, The Papers of Jon C. Calhoun, Volume X, 1825–1829, ed. C. N. Wilson and W. E. Hemphill (Columbia: University of South Carolina Press), 492. 80 Ibid., 506. 81 Ibid., 508. 82 Ibid., 506. 83 Ibid., 527. 84 James Madison, “To Edward Everett,” in James Madison: Writings, ed. Jack N. Rakove (New York: The Library Press of America), 849. 85 Calhoun, Papers, 443. 86 Niles’ Weekly Register XXXIX (Franklin Press, 1831), 205. 87 “Report of Legislature in Reply to Jackson’s Letter of June 14,” State Documents, 168. 88 “South Carolina Ordinance of Nullification, 1832,” The Avalon Project. Accessed August 30, 2018, http://avalon.law.yale.edu/19th_century/ordnull.asp. 89 Niles’ Weekly Register XXXIX, 424. 90 “Resolutions of Alabama Proposing a Convention,” State Documents, 181. 91 Niles’ Weekly Register XVI (Franklin Press, 1833), 392. 92 Ibid., 392. 93 “Resolutions of Virginia,” State Documents, 157. 94 Niles’ Weekly Register XXXVII (Franklin Press, 1830), 428. 95 “Resolutions of Alabama Proposing a Convention,” State Documents, 181. 96 “Resolves of Virginia,” State Documents, 187. 97 Niles’ Weekly Register XXXVII, 428. 98 Niles’ Weekly Register XLIII (Franklin Press, 1833), 201. 99 “Resolves of North Carolina,” State Documents, 184. 100 Thomas D. Morris, Free Men All: The Personal Liberty Laws of the North, 1780– 1861 (Baltimore: The Johns Hopkins University Press, 1974), 133. 101 Prigg v. Pennsylvania, 1842 U.S. LEXIS 387 (1842). The transcribed arguments of counsel are printed with the case. 102 Jamal Greene, “The Anticanon,” Harvard Law Review 125 (2011), 379–475, 428. 103 Laws of the General Assembly of the Commonwealth of Pennsylvania (Harrisburg: JMG Lescure, 1847), 208. 104 Statutes, September 18, 1850, 9.

Interposing the Protective Shield 59 105 Millard Fillmore, “First Annual Message (December  2, 1850),” The American Presidency Project. Accessed August  30, 2018, www.presidency.ucsb.edu/ws/ index.php?pid=29491. 106 Morris, Free Men All, 150. 107 As quoted in Morris, Free Men All, 187. 108 The Journal of the Senate of the State of Ohio: First Session, 49th General Assembly (Columbus: Chas. Scott, Printer, 1851), 47. 109 60 U.S. 393 (1857); 62 U.S. 506 (1859). 110 The Journal of the Senate of the State of New York: 80th Session (Albany: Charles Von Benthuysen, 1857), 774. Ohio also raised sectionalism in an 1859 resolution but it targeted Congress, not the Court. See Morris, Free Men All, 188. 111 Journal of the Assembly of Wisconsin (Madison: James Ross, State Printer, 1859), 864. 112 Wisconsin did not adopt Kentucky’s use of “formed by social compact,” inserting instead “formed by the constitution.” Journal of the Assembly of Wisconsin, 864. 113 “1856 Democratic Party Platform, June 2, 1856,” The American Presidency Project. Accessed August 30, 2018, www.presidency.ucsb.edu/ws/index.php?pid=29576. 114 Morris, Free Men All, 171. 115 Ibid., 172. 116 Mark A. Graber, Dred Scott and the Problem of Constitutional Evil (New York: Cambridge University Press, 2006), 5. 117 “Declaration of the Immediate Causes Which Induce and Justify the Secession of South Carolina from the Federal Union, December 24, 1860,” The Avalon Project. Accessed August 30, 2018, http://avalon.law.yale.edu/19th_century/csa_scarsec.asp. 118 Graber, Dred Scott and the Problem of Constitutional Evil; Keith E. Whittington, “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions,” The Journal of Politics 63, no. 2 (2001): 365–91. 119 William Gillette, Retreat from Reconstruction: 1869–1879 (Baton Rouge: LSU Press, 1979). 120 It is worth noting here how the Republican Party maintained a stated commitment to the authority of the states immediately before and after the Civil War. In the 1860 Republican platform, it committed to “the maintenance of the rights of the states . . . to order and control its own domestic institutions according to its own judgement exclusively . . . [which] is essential to the balance of powers on which the perfection and endurance of our political fabric depends.” “Republican Party Platform of 1860,” The American Presidency Project. Accessed August 30, 2018, https://www.presidency.ucsb.edu/documents/republican-party-platform-1860. The 1872 platform contained a similar sentiment: “The Republican party proposes to respect the rights reserved by the people to themselves as carefully as the powers delegated by them to the State and to the Federal Government. It disapproves of the resort to unconstitutional laws for the purpose of removing evils, by interference with rights not surrendered by the people to either the State or National Government.” “Republican Party Platform of 1872,” The American Presidency Project. Accessed August  30, 2018, www.presidency.ucsb.edu/ws/ index.php?pid=29623.

4 The Authority to Reject Interpretation State Maintenance in the Twentieth Century

Post-war constitutionalism is described, in part, by noting that “confederational departmentalism” was “effectively invalidated.”1 In this telling, the tradition of state-based maintenance was corrupted by Calhoun’s attempt to fashion state supremacy over the constitutional order, which led to the theoretical underpinnings of secession. Moreover, state-based efforts to balance constitutional authority between the federal and state governments was unnecessary as the federal judiciary settled into this role, built the necessary political capital, and proved sufficiently competent to accept the practice as a necessary and enduring feature of American constitutionalism. This narrative gets quite a bit correct but it also ignores the persistence of state-based efforts to influence constitutional meaning, and the effects that the legacy of nullification and secession had on claims of constitutional authority. Ignoring these practices makes it difficult to explain the reemergence of state-based assertions of interpretive authority and leads to conclusions that such practices were fringe or illegitimate rather than part of an ongoing contest of interpretive authority responsive to both the prevailing issue and political climate. The Civil War did not end state assertions of their constitutional visions. Kentucky is an interesting case. Kentucky was a slave state that did not secede, opting to declare itself to be neutral, refusing to heed Lincoln’s call for states to provide troops. Kentucky even expressed sympathy with the “belligerent states” and offered to mediate.2 This stance ended within the year when the Confederate army invaded and Kentucky formally declared for the Union, contributing troops to the war effort. All of this made Kentucky unique in terms of its sympathy to the South, loyalty to the Union, and its position to contest the post-war constitutional order. Between 1865 and 1868, Kentucky passed at least four resolutions asserting constitutional claims. The first resolution rejected the Thirteenth Amendment for two reasons. First, it noted that it was “the only State affected by it . . . and it therefore operate[d] unequally and unjustly upon her interests.”3 Second, it resolved that the amendment was “destructive of our original plan of government in the distribution of powers to the States and the nation” and concluded that “[i]t is an unconstitutional interference with vested rights and the private affairs of the people of the State.” Less than a week later, Kentucky

62  The Authority to Reject Interpretation resolved that habeas rights must be restored within the state because the period of insurrection and military conflict had passed.4 A couple of years thereafter, it declared as “unconstitutional and arbitrary” the denial of its “proper and equal representation in the National Legislature,” which they forwarded to the leadership of Congress, the President, and the state’s senators and representatives.5 That same year, Kentucky boldly declared the Civil Rights Act of 1866 “unconstitutional and void” for vesting federal courts with the authority to try and convict for “alleged crimes and offenses . . . exclusively cognizable by the State courts.”6 Clearly, Kentucky had not cast off its tradition of resolving its understanding of the Constitution. State efforts were not simply a reaffirmation of old practices but reflected changes to the post-war constitutional order. Perhaps most importantly, the resolutions became more oriented to legal understandings of the Constitution. In legal constitutionalism, legitimate constitutional change flows through either amendment—the prescribed rules for change—or through judicial interpretation.7 Kentucky’s protests over the Thirteenth Amendment were focused on altering what it deemed a foundational structure to the order but did not go so far as to contest the authority to pass the amendment. In declaring the Civil Rights Act of 1866 unconstitutional, Kentucky did not directly confront the legislation or attempt to concert action, rather, it authorized a legal challenge.8 While continuing to assert alternative constitutional visions, Kentucky seemed to be signaling an emerging shift toward a more legalistic way of understanding constitutional authority. Additionally, accusations of nullification became potent critiques of subnational opposition in post-war constitutional conflicts. Given that federalism provides national electoral minorities to hold power and hamper efforts to implement national policy, national officials must find means of overcoming state roadblocks. As Sean Beienburg demonstrates, state-based opposition to Prohibition was met by criticism that such reluctant states were attempting to nullify the Eighteenth Amendment. States with “wet” majorities in the legislature argued that the proper interpretation of the Eighteenth Amendment meant a concurrent enforcement regime such that state sovereignty permitted independent regulation of intoxicating liquors under the policing powers. But, dry politicians framed the efforts as nullification and delegitimated these otherwise plausible interpretations of the Eighteenth Amendment. Thus, nullification was clearly a highly disadvantageous political position and opponents of state resistance could deploy nullification as a means of delegitimating that opposition.9

***** No serious effort to reinvigorate state-based interpretive authority occurred until southern conservatives began to drift from the New Deal coalition in the mid-twentieth century. Both hostility to economic liberalism and the emerging welfare state led southern elites to voice concerns about the New Deal’s implications for the country. President Roosevelt provided southerners in Congress

The Authority to Reject Interpretation  63 leeway to shelter segregation and white supremacy but Roosevelt’s Justice Department was pursuing more egalitarian practices through the courts.10 For example, in United States v. Classic, the Justice Department sought to undercut the white primary by extending the constitutional right to vote beyond the general election and extend protections under the Federal Corrupt Practices Act of 1910 to primary elections so that the federal government could enforce constitutional rights in all elections for federal office. The Supreme Court endorsed the Justice Department’s argument and held that primary elections were a fundamental part of elections made even more important by the fact that, in many contests, only one party had a realistic chance of prevailing in the general election.11 The Supreme Court provided the death blow to the white primary system just three years later in Smith v. Allwright. The Court, in an 8–1 decision where all eight of Roosevelt’s appointees voted in the majority, ruled that primary elections constituted state action and that denying persons of color the right to vote violated both the Fourteenth and Fifteenth Amendments.12 Allwright was a “political bombshell” in the Deep South.13 Southern officials varied in their responses but resistance was a common theme.14 Common, too, was framing the decision as a violation of states’ rights.15 This was hardly the first time a policy prompted by the New Deal had been accused of violating the sovereign authority of the states nor was it novel to protest such a moment as violating the essence of the American constitutional republic.16 Several states attempted to protect the white primary by privatizing the primary system such that having the Party control the membership would be an act of a private association out of reach of constitutional rights. Federal courts again dispatched those efforts as administering the state’s laws and, thereby, triggering constitutional obligations, even if it falls to private actors.17 Yet, despite the federal judiciary being the vehicle for federal disruption of disenfranchisement of black voters, southern lawmakers did not contest the authority of the courts to do so. If anything, southern state officials doubled down and sought to “hit upon some new exclusion device and hope the Supreme Court would find it technically legal.”18 Aside from generic assertion of states’ rights, outside of the courts there was no elaborate constitutional defense from the southern states. The lack of effort may have been due to the numerous other obstacles to enfranchisement—literacy tests and the poll tax—that were still permissible. What is clear is that segregationists perceived Jim Crow as vulnerable to the courts during a period when there was robust support for judicial resolution of constitutional disputes. This motivated segregationists to seek alternative means of protecting the Jim Crow constitutional order. Following the Civil War, Democratic presidents were reasonably reliable vehicles for protecting segregation. The Democratic nomination process required a two-thirds majority, which guaranteed the need for southern support. However, the rule was abandoned in 1936 and this reduced southern influence in the nomination process and opened the door for Democratic presidents to take positions contrary to the interests of southern segregationists. President Franklin Roosevelt’s creation of the Fair Employment Practice Committee

64  The Authority to Reject Interpretation (FEPC) was seen as an initial salvo against segregation and Truman’s creation of the Civil Rights Commission and insistence on a civil rights plank in the 1948 Democratic platform entrenched the notion that Democratic presidents were not southern allies. Yet, the South did not immediately abandon the idea that the presidency was central to maintaining the Jim Crow constitutional order. In Whither Solid South?, Charles Wallace Collins, who has been labeled “the most important ideologist” of the Dixiecrat movement,19 argued that the Electoral College was the only means for the South “to preserve their rights within the Union.”20 If the South voted as one and refused to support Truman or the Republican candidate, neither party’s candidate would secure a majority in the Electoral College and the president would be selected by the House with each state receiving one vote. Again, if the South voted as one, it was unlikely that either candidate would receive a majority of the House votes without the eleven southern votes. With this leverage, the South could assure a racial conservative—likely a conservative Democrat because Democrats would prefer a conservative Democrat to a conservative Republican. With this logic spelled out in 1947 and southern politicians voicing support in early 1948, the stage was set for the States Rights Democratic Party. The States Rights Democratic Party was premised on constitutional maintenance. Mississippi Governor Fielding Wright was among the first state officials to publically advocate for a third party. In his inaugural address, Wright made clear that southern defection from the Democratic Party was essential to ending “anti-Southern legislation.” Specifically, Wright cited “such infamous proposals as FEPC, anti-lynching legislation, anti-poll tax bills, and now antisegregation proposals.” These were “deliberately aimed to wreck the South and our institutions.” Fundamentally, Wright argued, such “legislation disregarded the great instrument creating this government, which makes us a union of sovereign states.”21 The idea that federal civil rights legislation violated state sovereignty was central to Dixiecrat ideology. Ignoring the adoption of the Fourteenth Amendment, Collins argued that the states had not delegated the power over civil rights to the federal government and “the Bill of Rights to the Constitution itself was set up as a protection against encroachment by the Federal Government on those rights.” He further argued, in rather strained logic, that the republican guarantee clause bolstered this idea; asking, “How could a State function under a republican form of government if the Federal Government had jurisdiction over the civil rights of its citizens?”22 This was, at its core, about “restor[ing] . . . the principles of Jefferson and Jackson.”23 The Dixiecrat platform framed Party commitments through the Constitution. Segregation was constitutionally guaranteed through “the constitutional right to choose one’s associates; to accept private employment without governmental interference.” Such rights were best promoted through “home-rule, local government and a minimum interference with individual rights.” The Party demand[ed] “that there be returned to the people . . . those powers needed for the preservation of human rights.”24 Strom Thurmond’s speech at the Dixiecrat

The Authority to Reject Interpretation 65 convention similarly framed the Party’s purpose as to “stand beside the constitution of the United States with drawn sword.”25 The sword in this case was the presidency but it was not to be. Thurmond and the States Rights Party won four states, all in the South, but Democratic losses were more than offset by Democratic gains in the mid-west and west. The loss eviscerated the hope that the presidency could be ransomed into protecting the Jim Crow constitutional order. And with the presidency went the hope that a conservative president would appoint conservative justices so as to retreat from the anti-segregation path it appeared to be on. With both the presidency and the judiciary as protectors of the constitutional status quo seemingly lost, southerners turned to the authority of the states to maintain their imperiled constitutional commitments. Fashioning the constitutional authority to maintain the Jim Crow constitutional order meant deploying vintage resources. In a meeting of States Rights Democrats in Birmingham, the Party crafted a declaration of principles. In it, the Party cited the 1840 Democratic platform and its declaration that Congress has no power under the Constitution to interfere with or control the domestic institutions of the several States, and that such States are the sole and proper judge of everything appertaining to their own affairs not prohibited by the Constitution.26 As of 1948, these notions were still vague but Dixiecrats increasingly mixed them with notions of an active state. The Southern Governors Committee declared that they would oppose “the so-called civil rights program” through “effective action in the Southern states.”27 Governor Wright declared that “we must, if necessary, implement our words through positive action.”28 So, by the start of the 1950s, there was a sense that the “principles of Jefferson and Jackson” could only be maintained if states acted and that, consistent with longstanding Democratic commitments, state action included the right to assert control over its internal affairs. If arguments about the authority of states to act were only emerging in the early 1950s, the interpretive arguments were clearer. Whereas Jefferson and Madison had framed their state resolutions in terms of the interests and authority of national majorities, and Calhoun argued that popular majorities were insufficient without the majority of national interests consenting, Dixiecrats argued that the Constitution protected state majorities against local minorities and national majorities. To their reading, racial and religious minorities should be protected in their rights . . . but the bold defiance of the Constitution in selfish appeals to such groups for the sake of political power forges the chains of slavery of such minorities by destroying the only bulward [sic.] of protection against tyrannical majorities. The protection of the Constitutional rights of a minority does not justify or require the destruction of Constitutional rights of the majority.

66  The Authority to Reject Interpretation This was a limiting principle that, when violated, meant “the totalitarian, centralized, bureaucratic government” was destroying the Constitution.29 Thurmond put the whole package together when he argued, The preservation of the prerogatives of the people of a sovereign state, their right to deal exclusively with domestic problems, and the absolute and unqualified denial of a totalitarian state. . . . All of these questions can be solved . . . if constitutional government is maintained and preserved in America.30 Pre-Brown anti-segregation decisions did not produce significant challenges to the Supreme Court’s interpretive authority. Dixiecrats cited their opposition to Supreme Court decisions but were less concerned with the Court’s authority to settle constitutional disputes. When the Court handed down three decisions striking down segregation laws in public higher education and dining car service on interstate passenger rail travel, the response among southern officials was critical.31 Alabama Governor Herman Talmadge pledged to never allow students of color to attend white schools. But most southern state officials indicated they would comply with the decisions.32 The only effort formally to contest any of these decisions came when Texas asked the Court to reconsider its decision in Sweatt v. Painter.33 The response to Brown was dramatically different as southern segregationists actively pursued a conservative constitutionalism that would constrain the federal judiciary and protect Jim Crow. State resolutions in response to Brown should be understood, first, as a moment of entrepreneurial politics. State lawmakers in the South built off the resources created and motivated by the Dixiecrat effort to affect the presidency. The failure of the Dixiecrat insurgency made it clear that no national department would reliably protect segregation so the logic of the states’ rights and the coalition built to facilitate those arguments were employed and refashioned to provide a national safeguard. To do this, institutional boundaries between state and national governments and between state legislatures and the judiciary were challenged and blurred. The works of Madison, Jefferson, Taylor, and Calhoun were deployed to justify the pre-Brown interpretation of the Constitution, expand the authority of states to interpret it, and drive a new political compromise that would maintain the pre-Brown constitutional order. The effort was not fully successful but it led to profound changes to the politics of post-Brown constitutional theory. Denying the legitimacy of the Court’s decision on Brown required a critique of the means by which the Court reached the decision. What segregationists did not want to do was undermine the authority of the Court’s pre-Brown decisions that legitimated segregation. In other words, a theory that legitimated Plessy but delegitimated Brown was needed. As will be detailed more thoroughly below, state resolutions made the case for a nascent version of originalism. By mooring constitutional meaning to the moment of ratification, segregation made plausible claims about the public meaning of the Fourteenth Amendment that were contrary to the Court’s interpretation in Brown.34 These resolutions affirmed the authority of the Court to interpret the Constitution—arguably with

The Authority to Reject Interpretation 67 finality—but only when it did so through an originalist framework, which segregationists believed would maintain the pre-Brown status quo. Asserting an interpretive theory that maintained segregation required a theory of authority by which states could act and demand a proper approach to interpretation. Such a theory faced two major obstacles: first, judicial supremacy may not have been fully asserted as it would be in Cooper v. Aaron but the groundwork was well established. Any assertion of interpretive authority had to grapple with the existing hierarchy. Second, as noted above, a central principle of twentieth-century constitutionalism was that fidelity to the Constitution meant rejection of nullification. Segregationists needed a theory that created space for state dissent but that did not displace judicial supremacy or attempt to resuscitate nullification. The way to this theory was led by James J. Kilpatrick, editor of the Richmond News Leader. Starting in 1955, Kilpatrick wrote dozens of editorials that made the case for the right of states to interpose on extraordinary occasions when the national government grossly violated the rights of citizens or states. Kilpatrick relied heavily on the writings of Madison, Jefferson, Taylor, and Calhoun— often excerpting their writings on the authority of the states to judge constitutional infractions for themselves—and cast the South and Virginia in particular as their political heirs. Kilpatrick was more politician than theorist. Rather than attempt to craft a single coherent theory, Kilpatrick cast interposition as a category of state action that ranged from protest to formal, Calhounian nullification. Kilpatrick expressed equal comfort with states choosing their remedy to perceived infraction and the choice of states like Virginia to limit their resolutions to mere protest. Whatever the choice states made, it was legitimate because the Constitution was a social compact among the states that laid out which powers they delegated to the national government and which were reserved. Because “[s]tates stand co-equal,” they needed to have the means of protecting their authority. Illustrating this point, Kilpatrick mused, “Is it reasonable to believe that the States, like Frankenstein, have created an agency superior to themselves, and that they are utterly powerless to contest their own destruction?” The authority to interpret the Constitution and interpose “exists because it has to exist.”35 Kilpatrick may have been agnostic as to the extent of state authority but state resolutions made clear that the authority they were asserting did not challenge conventional legal channels. State nullification relocated constitutional veto in state conventions but interposing states did not attempt to locate that power in the states directly but monopolize the authority to alter the constitutional order through the Article V amendment process. For example, South Carolina simultaneously denied the authority of the judiciary to alter the rights of the states and argued that the “power to propose changes and the power to approve changes in the basic law is specifically stated by Article V of the Constitution.”36 Louisiana made a similar point, That this basic compact may be legally amended in one way, and in one way only, that is by ratification of a proposed amendment by the

68  The Authority to Reject Interpretation Legislatures of not less than three-fourths of the States, pursuant to Article V of the Constitution; that the judicial branch of the Federal Government has authority only in “cases in law and equity arising under this Constitution” and, hence, has no power or authority to amend the Constitution of the United States either by declaring a different meaning for the words therein found or otherwise.37 Florida made perhaps the most nuanced case that the “application of constitutional principles may differ with changing conditions, but the principles themselves are unchanging and unchangeable except by the people and then only by the method provided in the constitution.”38 Not only was the amendment process the means for change, it was the remedy to Brown. Not every state resolution was unequivocal on this point but the majority of resolutions indicated that overturning the federal judiciary’s authority to order desegregation required a constitutional amendment. Virginia appealed to her sister States . . . to join her in taking appropriate steps, pursuant to Article V of the Constitution, by which an amendment, designed to settle the issue of contested power here asserted, may be proposed to all the States.39 Mississippi made a similar appeal to Congress . . . to initiate and submit an appropriate amendment direct to the forty-eight states for ratification . . . declaring that the states have never surrendered their rights and powers to control their public schools, colleges and other public institutions and facilities.40 Tennessee inserted the language for such an amendment in its 1957 resolution, making it clear that states retained control over racial policy in public education.41 Notably, most of these resolutions claimed that until an amendment was passed, the state considered Brown and other cases requiring desegregation in public education to be “unconstitutional, invalid and of no lawful effect” or an “illegal encroachment.”42 What record there is indicates that most states did not believe the resolutions had legal effect. At the request of Robert Whitehead, a member of the Virginia House of Delegates and an opponent of the interposition movement, the attorney general of Virginia issued an opinion that both endorsed the resolution’s assertion that Brown was unconstitutional and that the resolution “does not purport to operate as a suspension of or supersedeas to the [Brown] decision. . . . The resolution is not a legislative enactment having the force of and effect of law.”43 Undoubtedly, the sentiments articulated in the resolutions motivated legislation that had effect. In fact, federal courts noted that these interposition resolutions could be considered as revealing the intentions of the legislature in passing actual laws associated with Massive Resistance.44

The Authority to Reject Interpretation 69 Focusing on interpretation rather than authority was designed to produce a new constitutional politics that could maintain the Jim Crow constitutional order. The political coalitions—either within the Democratic Party or in a separate States Rights Party—were failing to protect segregation. A new coalition was the only political pathway to thwart racial equality. Interposition was, in part, an attempt to foster such a coalition. Kilpatrick was explicit on this point, writing that the resolutions “might succeed in elevating this controversy from the regional field of segregation to the transcendent, national field of state sovereignty. There is a tactical advantage in higher ground, and we would do well to seek it.”45 Scholars have observed that conservatives found this part of the segregationist agenda compelling. Not only did the National Review applaud interposition and pledge its editorial support for southern opposition to the Court but it later hired Kilpatrick to write political commentary. Joseph Lowndes argues that interposition helped [turn] the heads of conservatives outside the South. . . . [T]he right wing of the GOP increasingly made the most of the segregationist states’ rights stand to build a party apparatus there for the first time in a century.46 This came through a deliberate effort to forge a conservative political coalition supportive of state autonomy and local control, which would continue southern segregation. The coalition formed too late to achieve what southern states resolved but the coalition that gave rise to Nixon’s presidency produced a significant limitation on Brown. In Milliken v. Bradley, Nixon’s four appointees to the Court joined Justice Potter Stewart to rule that remedial authority under the equal protection clause of the Fourteenth Amendment could not affect private choices leading to segregation absent state action that created de jure segregation. The ruling helped put the country on a path to higher levels of segregation in the twenty-first century than when the case was decided.47 By focusing on the Court’s interpretation in Brown, conservatives helped draft a new narrative about the proper understanding of the Constitution and the nation’s first principles. Central to this was the originalist argument in the resolutions. The anti-Brown resolutions are an early and important incarnation of originalism. In his history of originalism, Johnathan O’Neill identifies four elements that define originalism: • • •

First, originalism holds that ratification was the formal, public, sovereign, and consent-conferring act which made the Constitution and subsequent amendments law. Second, originalism holds that interpretation of the Constitution is an attempt to discover the public meaning it had for those who made it law. Third, originalism holds that although interpretation begins with the text, including the structure and relationship of the institutions it creates, the meaning of the text can be further elucidated by extrinsic source.

70  The Authority to Reject Interpretation • Finally, because originalism regards the sovereign act of lawmaking authority as having “fixed” the meaning of a constitution to be interpreted by ordinary legal methods, consultation of extrinsic evidence is usually limited to historical sources that might reveal the public meaning of the text at the time it became law. Originalism, then, is an effort to “define and limit official power before its exercise” by binding interpreters to the text’s meaning when it became higher law.48 These elements are prominent in the resolutions. The resolutions condemn Brown as a violation of consent-based politics. All resolving states made an argument that the Court had violated the fundamental law as conferred by public consent. Florida made the argument most clearly, All political power is inherent in the people and all government derives all its powers from the consent of the governed. When the people form a government by their adoption of a written constitution the words of that constitution are but the instrumentalities by which ideas, principles, and plans present in the minds of those who adopt the constitution and recorded for accuracy and for preservation to posterity.49 As an article of consent, the Constitution “may be validly amended in one way, and in only one way,”50 meaning that “the question of contested power . . . is not within the province of the court to determine.”51 The Court further violated the proper means of discovering the Constitution’s meaning. The resolutions make clear what the state legislatures believed they had consented to. For example, Georgia claimed that in ratifying the Fourteenth Amendment . . . [it] did not agree, nor did the other States ratifying the Fourteenth Amendment agree, that the power to operate racially separate public schools and other facilities was to be prohibited to them thereby.52 To bolster this claim, the Georgia legislature noted that the very Congress that submitted the Fourteenth Amendment for ratification established separate schools in the District of Columbia and that in more than one instance the same State Legislatures that ratified the Fourteenth Amendment also provided for systems of racially separate public schools.53 In other words, the public meaning of the Fourteenth Amendment was not understood to include segregated education. These historically grounded arguments were certainly underdeveloped but they were no less plausible. Two decades after the resolutions, Raoul Berger concluded Government by Judiciary

The Authority to Reject Interpretation 71 by writing, “The historical record all but incontrovertibly established that the framers of the Fourteenth Amendment excluded both suffrage and segregation from its reach.”54 By claiming that originalism was the only legitimate way to determine consent, other means of interpretation were delegitimated. To validate this claim, South Carolina turned to legal authority. Citing South Carolina v. United States, the resolution quoted the majority opinion that asserted, “That which [the Fourteenth Amendment] meant when adopted, it means now.”55 Originalism was not only the proper interpretive approach, it was authoritatively correct. The implication was clear. Any other form was illegitimate and the resolutions focused most intensively on the use of social science in Brown. The resolutions claimed that Brown “disregarded [the Court’s] former pronouncement” and expressly predicated its determination of the rights of the American people of the several sovereign states of the American union upon the psychological conclusions of Kotinsky, Brameld and Myrdal, and their ilk, rather than the legal conclusions of Taft, Holmes, Van Devanter, Brandeis and their contemporaries upon the bench.56 According to South Carolina, this enabled the Court to “rely on the current political and social philosophy of its members to unsettle the great constitutional principles so clearly established.”57 Originalist claims in response to Brown formed part of the design to attract white southern conservatives. Jamal Greene observes that originalism is deeply alienating to African Americans because its narrative is restorative. This is clearly the case with the anti-Brown resolutions; indeed, it is central to maintaining the Jim Crow constitutional order. Conservative legal strategists recognized the utility of originalism to code and legitimate racial politics.58 Allegra McLeod notes that “originalism served as the corollary . . . associated with the Southern Strategy.”59 This strategy was largely successful. Even today, originalists are more likely to reside in the South, are more likely to be white, male, and older, and are more likely to be Republican and conservative.60 Originalism has proved to be an important thread in contemporary conservative ideology that sends powerful messages to voters. It is impossible to account for this without acknowledging its roots in southern legislative efforts to maintain Jim Crow. The political effect of interposition was as significant as its interpretive legacy. Neither the effect on constitutional politics nor constitutional interpretation came immediately. Originalism did not flourish until Raoul Berger elevates the rigor and profile of originalism with the publication and subsequent defense of Government by Judiciary in 1978. Southern conservatives did not reliably vote for Republican presidential candidates until 1972.61 Yet, originalism has been a reliable interpretive theory for delivering conservative victories62 and the Republican coalition has been a reliable vehicle for delivery

72  The Authority to Reject Interpretation to the federal bench jurists willing to use originalist arguments.63 In these ways, the anti-Brown resolutions must be seen as advancing conservative visions for constitutional interpretation and constitutional politics. However, if the resolutions can be said to produce gains on interpretive and political dimensions, the same cannot be said of constitutional authority. Most resolutions did not attempt to challenge the Supreme Court’s authority to resolve constitutional disputes, although some jurisdictional claims were made that would have restricted the Court in segregation cases. Yet, the politics of interposition attempted to mask racial politics even as it agitated them. For example, Governor Orville Faubus became more interventionist after he faced a primary challenge in which his opponent campaigned to support a constitutional amendment that would have legalized interposition. The move to confront and obstruct desegregation led to the passage of more obstructionist laws and increasingly bold statements from public officials. Nowhere was this more clear than in Little Rock. In Cooper v. Aaron, the Court responded to Massive Resistance by boldly asserting judicial supremacy over constitutional meaning. Spurred by the politics of resistance to Brown and claiming authority under Arkansas’s popularly enacted interposition amendment, Governor Faubus claimed that he was bound by Arkansas’s interposition measure and various segregation enforcement laws to prevent the integration of Little Rock Central High. He further indicated that the use of the National Guard was necessary to maintain order until the proper authority determined the obligation of state actors under the conflicting laws and judicial decrees.64 The attorneys for the Little Rock school district had previously stated their opinion that interposition had no legal effect but Faubus, perhaps appealing to popular sentiment, had rejected this notion and left open the possibility that they had legal effect. But after the federal district court denied the school board’s request for further delay to the desegregation order, Faubus continued to obstruct desegregation, this time squarely in the name of maintaining order, which became Faubus’s central legal argument against the enforcement of the constitutional rights of the Little Rock Nine.65 The immediate crisis was resolved when President Eisenhower ordered the 101st Airborne to enforce the desegregation order and protect the students of color against violence. But the legal contest wore on. Following a second federal judge’s order to delay the desegregation order for another two and half years, the Supreme Court heard and decided Cooper v. Aaron in a special session. The Court made plain its authority over the Constitution was supreme. In what has become the most famous passage in the opinion, the Court cited Chief Justice Marshall’s declaration in Marbury that “[i]t is emphatically the province and duty of the judicial department to say what the law is.” It then continued, This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as

The Authority to Reject Interpretation  73 a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Article VI of the Constitution or Laws of any State to the Contrary notwithstanding.66 This bold assertion of the Court’s authority and the uniformity of its acceptance is, as Keith Whittington observes, “wishful thinking” but the Court was clearly refuting state efforts to contest Brown.67 The Court rejected that their decision could be “nullified openly and directly by state legislators or state executive or judicial officers, [or] nullified indirectly by them through evasive schemes for segregation.”68 Because the resolutions were contrary to Brown, they were at “war against the Constitution” and, thereby, the state officials responsible for them were effectively violating their oaths to support the Constitution. In his concurring opinion, Justice Frankfurter softened the tone slightly, but only slightly: “The duty to abstain from resistance . . . does not require immediate approval of it nor does it deny the right of dissent. Criticism need not be stilled. Active obstruction or defiance is barred.”69 Frankfurter seemed to take seriously the position in many of the resolutions that they were not independent claims of authority but calls to mobilize. Madisonian dissent was entirely appropriate but, to Frankfurter, anything beyond that point defied the constitutional order.70 But Frankfurter was also the only justice who seemed at all willing to entertain divorcing the anti-Brown resolutions from the public and private actions that denied African American children their right to attend desegregated public schools. In effect, he left open the possibility for there to be institutional disputes over constitutional interpretation and politics but not authority. The legacy of this period bundles the constitutional visions articulated in the resolutions with the wider sweep of Massive Resistance. And there is wisdom in not separating them. Listening to Martin Luther King, Jr.’s speech at the March on Washington, one can hear the exasperation in his voice as he followed up his immortal line about judging children by the content of their character by saying, I have a dream that one day in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; one day right in Alabama, little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers. As the arc of the moral universe was bent toward justice, the practices associated with injustice were also tainted. Much as nullification occupied a despised place, the practices labeled as interposition were similarly rejected. It should be no surprise, then, that constitutional scholars who lived and worked in the shadow of Brown and Cooper rejected state-based constitutional engagement

74  The Authority to Reject Interpretation outside of amendment or legal proceedings as illegitimate.71 Notably, the decline of states came at a time of enervated federalism. The Great Society increasingly used federal authority in more coercive ways that reduced state policymaking autonomy. States aided their marginalization by failing to professionalize, lacking office space, adequate salaries, and staffing and expertise.72 All of this seemed to indicate that the consensus of constitutional scholars was not only plausible but almost certainly correct. Institutionally, the states lacked capacity; so at the low point of their constitutional authority and, likely, one of the lower points of their policymaking authority, the notion that states would play a future role in constitutional maintenance seemed unlikely. Yet, as will be detailed in the next chapter, despite the legacies of nullification and interposition, state-based practices reemerged prominently in twenty-first-century American politics.

Notes 1 Walter Murphy, “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter,” The Review of Politics 48, no. 3 (1986): 401–23, 420. 2 Journal of the House of Representatives of the Commonwealth of Kentucky (Frankfort: State Printing Office, 1861), 64. 3 Journal of the House of Representatives of the Commonwealth of Kentucky (Frankfort: State Printing Office, 1865), 69. 4 Ibid., 119. 5 Journal of the House of Representatives of the Commonwealth of Kentucky (Frankfort: State Printing Office, 1867), 575. 6 Journal of the House of Representatives of the Commonwealth of Kentucky (Frankfort: State Printing Office, 1869), 32. 7 John E. Finn, “The Civic Constitution: Some Preliminaries,” in Constitutional Politics: Essays on Constitution Making, Maintenance, and Change, ed. Sotirios A. Barber and Robert P. George (Princeton: Princeton University Press, 2001). 8 The resolution authorized the governor “to take such steps as may be proper and necessary to test and determine if said act be constitutional; and to that end he may employ counsel.” Journal of the House of the General Assembly of the Commonwealth of Kentucky 1867 (Frankfort: Kentucky Yeoman Office, 1869), 31–2. 9 Sean Beienburg, “Neither Nullification nor Nationalism: The Battle for the States’ Rights Middle Ground During Prohibition,” American Political Thought: A Journal of Ideas, Institutions, and Culture 7 (2018): 271–303. 10 See Kevin J. McMahon, Reconsidering Roosevelt on Race: How the Presidency Paved the Way to Brown (Chicago: University of Chicago Press, 2003). 11 United States v. Classic, 313 U.S. 299 (1941). 12 321 U.S. 649 (1944). 13 Kari A. Frederickson, Dixiecrat Revolt and the End of the Solid South (Chapel Hill: University of North Carolina Press, 2001), 39. 14 “Southern Leaders Prepare to Resist,” New York Times, April 4, 1944, 15. 15 Lewis Wood, “Ruling on Texas Voting Arouses Southern Rage,” New York Times, April 9, 1944, E6; James E. Crown, “The Deep South,” New York Times, April 9, 1944, E7. 16 Glenn Feldman, The Great Melding: War, the Dixiecrat Rebellion, and the Southern Model for America’s New Conservatism (Tuscaloosa: The University of Alabama Press, 2015), 54–75. 17 “When these officials participate in what is part of the state’s election machinery, they are election officers of the state de facto if not de jure, and as such must

The Authority to Reject Interpretation 75 observe the limitations of the Constitution. Having undertaken to perform an important function relating to the exercise of sovereignty by the people, they may not violate the fundamental principles laid down by the Constitution for its exercise.” Rice v. Elmore, 165 F.2d 387 (4th Cir. 1947), 391. 18 Arthur Krock, “South’s Devices Run Thin,” New York Times, April 5, 1944, 12. 19 Sarah McCulloh Lemmon, “The Ideology of the ‘Dixiecrat’ Movement,” Social Forces 30 (1951): 162–71, 169. 20 Charles Wallace Collins, Whither Solid South? (New Orleans: Pelican Press, 1947), 279. 21 “Wright Calls on Southern Demos to Secede Party,” The Daily Herald, January 20, 1948, 1, 9. 22 Collins, Whither Solid South? 234. 23 “Statement of Governors,” New York Times, February 24, 1948, 14. 24 “Platform of the States Rights Democratic Party,” The American Presidency Project. Accessed August 30, 2018, www.presidency.ucsb.edu/ws/index.php?pid=25851. 25 “Address by Strom Thurmond, Governor of South Carolina, Accepting the States’ Rights Democratic Nomination for President of the United States,” Strom Thurmond Collection. Accessed August  30, 2018, https://tigerprints.clemson.edu/cgi/ viewcontent.cgi?article=1366&context=strom. 26 “Declaration of Principles, July 17, 1948,” Strom Thurmond Collection, Mss100. Accessed August 20, 2018, https://tigerprints.clemson.edu/cgi/viewcontent.cgi?art icle=1355&context=strom. 27 Quoted in “Statement of Governors.” 28 “Wright Calls on Southern Demos to Secede Party,” 1. 29 “Declaration of Principles.” 30 Strom Thurmond, “Accepting the States’ Rights Democratic Nomination as President of the United States, August 11, 1948,” Strom Thurmond Collection, Mss100. Accessed August 16, 2018, https://tigerprints.clemson.edu/cgi/viewcontent.cgi?art icle=1366&context=strom. 31 Sweatt v. Painter, 339 U.S. 629; McLaurin v. Oklahoma State Regents, 339 U.S. 637; Henderson v. United States, 339 U.S. 816 (1950). 32 “Court’s Segregation Rulings Evoke Both Praise, Criticism,” The Sun, June 7, 1950, 6; “Most Southern States Indicate Court Ruling Will be Obeyed,” Afro-American, June 17, 1950, 7. 33 “Segregation Edict Reversal Sought,” Los Angeles Times, June 21, 1950, 19. 34 The nascent originalist arguments in the anti-Brown resolutions are not necessarily accurate and they are certainly not complete. But these documents assert historically grounded claims about segregation and public education in the 1860s that are plausible. For the originalist case against segregation, see Michael W. McConnell, “Originalism and the Desegregation Decisions,” Virginia Law Review 81 (1995): 947, 955–84; McConnell, “The Originalist Case for Brown v. Board of Education,” Harvard Journal of Law and Public Policy 19 (1995): 457; Steven G. Calabresi and Michael W. Perl, “Originalism and Brown v. Board of Education,” Michigan State Law Review (2014): 429–573. For the most well-known argument suggesting that originalism supported segregation, see Raoul Berger, Government by Judiciary: The Transformation of the Fourteenth Amendment, 2nd ed. (Indianapolis: Liberty Fund, 1997). Non-originalists have also made arguments that originalist justifications for segregation are plausible readings of history. See, for example, Michael J. Klarman, From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality (New York: Oxford University Press, 2004), 7. 35 James J. Kilpatrick, “What Is This Right?” Interposition: Editorials and Editorial Page Presentations, The Richmond News Leaders 1955–1956 (Richmond: Richmond News Leader, 1956), 7.

76  The Authority to Reject Interpretation 36 “Joint Resolution, S. 514,” Race Relations Reporter Volume 1 (Nashville: Vanderbilt University School of Law, 1956), 443. 37 “House Concurrent Resolution, No. 10,” Race Relations Reporter Volume 1, 754. 38 “Senate Concurrent Resolution No. 17-XX,” Race Relations Reporter Volume 1, 949. 39 “Senate Joint Resolution, No. 3,” Race Relations Reporter Volume 1, 447. 40 “Senate Concurrent Resolution, No. 125,” Race Relations Reporter Volume 1, 442. 41 Tennessee’s proposed amendment read as follows: “The legislative, executive and judicial powers of the United States as granted under the Constitution shall not be construed to extend to the regulation of the public schools of any State nor to include a prohibition to any State, in the exercise of its power, to provide by its laws for the establishment, operation and maintenance of racially separate but substantially equal public schools within each state.” See “House Resolution No. 1,” Race Relations Reporter Volume 2 (Nashville: Vanderbilt University School of Law, 1957), 230. 42 “Joint Resolution, S. 514,” Race Relations Reporter Volume 1, 442; “Virginia Senate Joint Resolution No. 3,” Race Relations Reporter Volume 1, 447. 43 J. Lindsay Almond Jr., “Opinion of Attorney General on Va. Resolution,” Interposition: Editorials and Editorial Page Presentations, 55–6. 44 In Beckett v. The School Board of the City of Norfolk, Judge Hoffman wrote, “It was of course, within the prerogative of the General Assembly to adopt this and any other resolution but the distinguished members of this body (many of whom are able attorneys) must recognize that such proclamations may have some bearing upon the questions of intent in arriving at a determination of the constitutionality of any laws subsequently enacted. The passage of the resolutions to which reference has been made is not, however, determinative of the final issues in these cases now pending.” 148 F. Supp. 430 (1957), 435. 45 James J. Kilpatrick, “Interposition, Now!” Interposition: Editorials and Editorial Page Presentations, 19. 46 Joseph E. Lowndes, From a New Deal to the New Right: Race and the Southern Origins of Modern Conservatives (New Haven: Yale University Press, 2008), 44. 47 Alvin Chang, “The Data Proves that School Segregation is Getting Worse,” Vox (2018). Accessed August  30, 2018, www.vox.com/2018/3/5/17080218/schoolsegregation-getting-worse-data; Gary Orfield and Erica Frankenberg with Jongyeon Ee and John Kuscera, “Brown at 60: Great Progress, a Long Retreat and an Uncertain Future,” The Civil Rights Project, May 15, 2014. For an interpretation of the data that suggests recent changes to segregation are not large, see Sean F. Reardon and Ann Owens, “60 Years After Brown: Trends and Consequences of School Segregation,” Annual Review of Sociology 40, no. 1 (2014), 199–218. 48 Johnathan O’Neill, Originalism in American Law and Politics: A Constitutional History (Baltimore: Johns Hopkins University Press, 2009), 2. 49 “Senate Concurrent Resolution No. 17-XX,” 948. 50 “Virginia Senate Joint Resolution No. 3,” 446. 51 “House Joint Resolution,” Race Relations Reporter Volume 1, 437. 52 “House Resolution No. 185,” Race Relations Reporter Volume 1, 438. Virginia used almost identical language: “Virginia Senate Joint Resolution No. 3,” Race Relations Reporter Volume 1, 446. 53 “House Resolution No. 185,” Race Relations Reporter Volume 1, 438. Other states to cite such evidence include South Carolina, Virginia, Tennessee, and Florida. 54 Berger, Government by Judiciary, 457. 55 199 U.S. 437, 449 (1905); “A Joint Resolution,” Race Relations Reporter Volume 1, 444. 56 “Senate Concurrent Resolution No. 17-XX,” 950. 57 “A Joint Resolution,” 444.

The Authority to Reject Interpretation 77 58 See “Lee Atwater’s Infamous 1981 Interview on the Southern Strategy,” The Nation, November  13, 2012. Accessed August  30, 2018, www.thenation.com/ article/exclusive-lee-atwaters-infamous-1981-interview-southern-strategy/. 59 Allegra M. McLeod, “Police Violence, Constitutional Complicity, and Another Vantage,” The Supreme Court Review (2016), 157–95, 180. 60 Jamal Green, Nathan Persily, and Stephen Ansolabehere, “Profiling Originalism,” Columbia Law Review 111, no. 2 (2011), 356–418, 373. 61 One can argue that 1980 is a better date because Carter won the South in 1976 but, looking at the dealignment of the South in the 1960s, that election looks like something of an outlier. 62 Thomas M. Keck, The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism (Chicago: University of Chicago Press, 2004), 156–96. 63 Attorney General Edwin Meese announced that it “has been and will continue to be the policy of [the Reagan Administration] to press for a jurisprudence of original intention.” Edwin Meese, “The Supreme Court of the United States: Bulwark of a Limited Constitution,” South Texas Law Review 27 (1986), 455–66, 464. 64 Tony A. Freyer, Little Rock on Trial: Cooper v. Aaron and School Desegregation (Lawrence: University Press of Kansas, 2007), 112–13. 65 See “Notes Dictated by President Eisenhower on October 8, 1957, Concerning Meeting with Governor Faubus at Newport, Rhode Island, September 14, 1957,” Eisenhower Presidential Library. Accessed August  30, 2018, https://eisenhower. archives.gov/research/online_documents/civil_rights_little_rock.html. 66 358 U.S. 1 (1958), 18. 67 Keith E. Whittington, Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History (Princeton: Princeton University Press, 2007), 4. 68 358 U.S. 1, 16–17. 69 Ibid., 24. 70 Justice Frankfurter followed up his point about the prohibition on active obstruction by noting, “our kind of society cannot endure if the controlling authority of the Law as derived from the Constitution is not to be the tribunal specifically charged with the duty of ascertaining and declaring what is ‘the supreme law of the land.’ ” 358 U.S. 1, 24. 71 See, for example, Murphy, “Who Shall Interpret?” 401–23. 72 Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore: Johns Hopkins University Press, 2002), 197–202.

5 Reinvigoration The Return of Madisonian Maintenance, Nullification, and the Affirmation of Judicial Authority By the start of the twenty-first century, legitimate state efforts to influence American constitutionalism were funneled through legal pathways. State legal challenges to the constitutional politics (e.g. lawsuits by state attorneys general challenging a federal law) were both common, accepted, and even a valued part of the American constitutional system. States had also proved adept at protecting federalism through a series of mechanisms and behaving in uncooperative ways to limit the impact of federal laws.1 State efforts that deviated from these pathways and that reflected traditions that had come to be associated with nullification and interposition were treated as illegitimate.2 Yet, by the end of the first decade of the twenty-first century, subnational efforts to maintain the constitutional order were frequent, vibrant, and took on a striking air of legitimacy given its association with rejected practices. In such episodes, states played a vital role in articulating a constitutional vision imperiled by federal legislation, which helped legitimate the opposition. States also helped in the effort to mobilize Americans against the offending laws, which contributed to a wider constructive process resulting in reform. These incidents had the look of Madisonian maintenance. But, as the profile of states in constitutional politics became more prominent, activists and state lawmakers once again attempted to reinvigorate nullification. On issues ranging from healthcare to gun control to drug policy, nullification was advocated as a means of altering prevailing national policy. This is particularly striking given that nullification was associated with a “dismal history of . . . discredited ideas.”3 Yet, in a climate of polarization and fragmentation, giving greater force to the politics of opposition had renewed appeal and the politics of state-based maintenance have both ameliorated and exacerbated these forces. This chapter details the most recent period of development in state-based maintenance, focusing on what elements remained durable and what elements changed. It further explains what impact state interpretive assertions had on constitutional meaning and how these assertions fit into a broader constructive process. Finally, it examines the rise of neonullification and the effort to refashion the role of the state in national constitutional politics. This effort poses interesting challenges to Madisonian maintenance and provides insight

80  Reinvigoration into the state of American constitutionalism in the first two decades of the twenty-first century.

***** The return of state-based maintenance bears some resemblance to the conditions that sparked it. Madison came to the conclusion that states were more reliable vehicles for restoring balance because conditions prevailing at the national level were problematic. Federalists controlled the national government. The courts were weak and, equally important, unwilling to challenge national laws. The president and Congress used concerns over national security and prospective international conflict to justify laws that arguably infringed on civil liberties. The executive was granted significant new powers to execute the laws and these powers reduced other constitutional limitations like separation of powers. Being somewhat removed from these conditions, Madison turned to states to serve as vehicles for dissent and mobilization that could marshal popular authority to rebalance the system. Similar conditions existed in the first decade of this century. The Republican Party controlled much of the national government.4 The Supreme Court had a conservative majority that had just decided Bush v. Gore and gave the impression that they would be a willing partner to the Republican coalition.5 The nation entered a period of war, passing domestic legislation to protect the homeland but which challenged civil libertarian protections of the American people. A sizable part of this challenge came in new grants of executive authority that again raised questions about separation of powers. And, notably, the sense of a national emergency led to consensus among national officials that these steps were necessary and warranted. This is not to say that the conditions were identical. Over two hundred years of political development had occurred. As Stephen Skowronek observes, the institutional context in which politics operates thickened over time, which encumbered political action. With more institutions, more interests, and more actors, challenges to the political status quo require more resources and are met with more formidable resistance.6 Federalism always presented a possible means for obstructing federal policy so this was not new and cannot, on its own, explain the return of state practices. But, between the 1960s and the turn of the century, state governments professionalized. Most states adopted annual legislative sessions, created office space for lawmakers, increased salaries to make the offices more desirable, and, perhaps most importantly, expanded professional and clerical staff for legislators and standing committees.7 What came from this was not just expanded capacity but also enhanced reputation. As Jon C. Teaford put it, “the states assumed a new significance in the cast of American government.”8 And with the decline of trust in the federal government following Watergate and Vietnam, Americans held much more favorable views of state governments than they did of the federal government.9 This period also saw an increase in interest group activity at the state level. The increase almost certainly reflects the devolution of policymaking

Reinvigoration 81 authority that occurred in the 1990s. This made states prime targets for lobbying. Studies indicate that lobbying is more effective at the state level for reasons related to more limited informational and electoral resources that organized interests can provide to state lawmakers.10 It is also notable that organized interests that have national profiles and engage in federal lobbying have increasingly turned their attention to states.11 Groups with a national profile engaged at the state level as part of broader contests over constitutional meaning.

***** When local and state governments began to voice concerns regarding the USA PATRIOT Act (hereafter Patriot Act), the practice reflected long-standing traditions. Each of the eight anti-Patriot Act resolutions sketched a brief statement of constitutional principles jeopardized by the law. In effect, these states rendered commentary on the perceived imbalance between security and liberty. Some of the resolutions provided fairly vague statements such as in the case of Colorado where it condemned “expand[ing] the power of the federal government to detain and investigate people in the United States and to engage in surveillance activities that may be inconsistent with the rights and liberties guaranteed by the state and federal constitutions.”12 Other states made more comprehensive claims that enumerated a set of specific rights and liberties potentially offended by the act. For example, California protested that the Patriot Act “may violate or offend the rights and liberties guaranteed by our federal and state constitutions, including rights of due process, the right to privacy, the right to counsel, protection against unreasonable searches and seizures, and basic First Amendment freedoms.”13 Such sentiments were echoed and amplified by over four hundred resolutions passed by local governments.14 Consistent with resolutions in the past, anti-Patriot Act resolutions contributed to a wider constitutional dialectic through a constructive process. At the urging of advocacy groups like the American Civil Liberties Union (ACLU) and the Bill of Rights Defense Committee, states protested the perceived violation of federal authority and encouraged reforms, sometimes to specific provisions within the act.15 In doing so, these expressions conveyed understandings of constitutional values. Each of the resolutions was transmitted to national officials and publicized by organized interests.16 The ACLU, which had encouraged states to pass resolutions, also represented clients affected by the Patriot Act.17 In two of the most prominent cases, the ACLU represented “John Does” who had received national security letters as authorized by section 505 of the Patriot Act.18 Several sections of the act had made business records, including library and bookstore records, more easily accessible by law enforcement with minimal judicial supervision. These areas had been specifically raised in state resolutions. Vermont complained that “several sections of the bill . . . permit law enforcement authority to have broad access to sensitive mental health, library, business, financial, and

82  Reinvigoration educational records.” Supra, note 14, 360. The ACLU made notably similar claims, albeit with greater legal precision and depth. In the first major challenge, it argued that the act gives the FBI extraordinary and unchecked power to obtain private information without any form of judicial process, and . . . that [the law’s] non-disclosure provision burdens speech categorically and perpetually, without any case-by-case judicial consideration of whether that speech burden is justified.19 The ACLU won both cases and the portion of the law governing national security letters was struck down as unconstitutional under the First and Fourth Amendments. Later that year, Congress took up revision of the Patriot Act. During the debate, the resolutions were regularly cited to legitimate general and specific opposition and the need for specific reforms. Senator Feingold made the point about the significance of the resolutions in relationship to reform, This is our opportunity to respond to the voices of those legislatures and the people of those States, to their heartfelt concerns about the degradation of their civil liberties. . . . [W]hat I have begun to share is the fact that hundreds and hundreds of governmental units across this country have passed resolutions by the elected representatives in those communities or in those states, saying, wait, there are problems with the USA PATRIOT Act and they must be fixed.20 The legislative revisions that occurred in the USA PATRIOT Improvement and Reauthorization Act of 2005 and the subsequent amendments to it addressed several, but not all, of the most cited provisions. Specifically, Congress provided for greater judicial oversight of the orders available through section 215 and the national security letters. It also enhanced procedural protections, application requirements, and judicial review for the review of business records. However, congressional efforts were not sufficient to overcome judicial skepticism and a federal district court subsequently struck down the section of the act governing national security letters.21 The constructive process detailed above could occur because the anti-Patriot Act resolutions contained no claims of special authority to declare what the Constitution means. None of the resolutions lay claim to state sovereignty, the Tenth Amendment, or social compact theory as the basis for the right to resolve their opinion. There is little in the resolutions to suggest finality—indeed most resolutions indicate that the Patriot Act may violate constitutional rights so it should be revised. However, this is not to say that they do not assert any authority. Five states explicitly prohibited state officials from participating in actions authorized by the Patriot Act if the action violated either the US Constitution or its state constitution. Such provisions raise the question as to who

Reinvigoration  83 decides whether it violates the Constitution. If the resolutions are indicating that law enforcement should not enforce laws the courts deem unconstitutional, then the provision is obvious and unnecessary. More likely, the resolutions tacitly encourage state officials to adopt the principles espoused therein and apply them where relevant; suggesting that law enforcement need not wait for or rely upon judicial pronouncement to treat aspects of the law as unconstitutional. Vermont, not one of the five states mentioned above, requested that the state attorney general’s office provide legal support to any public library subject to either a federal suit or administrative action for refusal to comply.22 Montana went so far as to urge libraries to regularly destroy their records and booksellers not to keep records so that unconstitutional violations of privacy rights could not occur.23 The noncompliance in these resolutions harkens back to the actions of Connecticut during the embargo crisis and northern states responding to the Fugitive Slave Act of 1850. It is also a nod—asserted more explicitly in later resolutions—to the anti-commandeering doctrine. In short, many of the features in the resolutions appear consistent with past practices but other aspects of twenty-first-century resolutions appear to be innovations responsive to the contemporary political landscape and the goals of key actors. Changes to state-based maintenance range from subtle to provocative. The anti-Patriot Act resolutions are less about mobilization than about legitimacy. Madison believed that state action was needed to alert the people to potential constitutional violations. But this idea seems quaint in the modern media environment. Interest groups can communicate directly to their members and supporters. Public officials and activists can communicate concerns directly to the public. Groups, activists, and officials can attempt to mobilize like-minded citizens through these channels of communication. What many groups lack is institutional legitimacy. Jack Balkin details how vital institutional legitimacy is to the legitimation of constitutional ideas. Specifically, he argues, When established politicians—who, after all, have to stand for election and don’t want to be thought out-of-touch to their constituents—get behind a constitutional argument, they often help move it forward quickly. Prominent politicians can bring to bear all of the political influence and institutional heft that their public support entails.24 Given that the Patriot Act was passed nearly unanimously with bipartisan support and almost no legislative debate, a legitimated dissent was unlikely to emerge out of the federal lawmaking process. States helped fill the role of legitimated advocate. The role of the states also reflects the nature of the process. In the Madisonian conception, states voiced their concern, rallied the electorate, and either the powerholding regime would back off their commitment to the offending law or that regime would be replaced with a right-minded one. In effect, constitutional meaning would be settled by the electoral regime. But the role of states here is different and represents a constructive process. States helped legitimate

84  Reinvigoration ideas that were bubbling up from below. Professional groups, organized interests, and local governments had espoused these views prior to the resolutions of the states. Once states endorsed these views, interest groups, most notably legal advocacy groups like the ACLU, publicized the resolutions and cited them to provide greater legitimacy to their constitutional claims. These groups—and others—made similar arguments before judges and judges rendered decisions reflective of, if not identical to, the positions resolved by the states. Constitutional scholars will recognize such a multi-participant, iterative process of making meaning, despite typically looking to other institutions as the primary drivers of change. Yet, old state practices were made new again by adding the state’s institutional weight to this process.

***** Once states reestablished that they could play a role in constitutional dissent, the door was open for states to claim greater authority over constitutional meaning. Of course, this did not happen all at once. Some states continued their commitment to a constructive process but other states began to make state sovereignty more central to their claims of authority. In such cases, state resolutions blended legal authority as recognized in constitutional law with the constitutional politics associated with states’ rights. The drift was evident in the response to the enactment of the REAL ID Act in 2005. The REAL ID Act attempted to establish more uniform requirements for state identification and driver’s licenses. The law also mandated the identification include certain information such as a facial image and machine-readable technology. It further mandated the creation of a database that could be accessed by all other states, effectively creating a national identification database. Most of these requirements were not funded by the federal government. Also of note, the REAL ID Act was not passed through typical legislative procedures but was attached to a military spending bill by the House Rules Committee and it was passed by both the House and the Senate without significant debate. As the affected entities, the states were active voicing their discontent with the law. Twenty-two states passed either a resolution or statute that protested and/ or refused to implement the law in part or in full. The level of resistance was so significant that the law was not implemented for over a decade and, at the time of this writing, has still not been fully implemented.25 For those states refusing to implement REAL ID, twelve of those states cited constitutional concerns. Several of these states began their resolutions by citing sovereignty. For example, South Dakota argued that “the REAL ID Act intrudes upon the states’ sovereign power to determine their own policies for identification, licensure, and credentialing of individuals residing therein.” It further claimed that Congress had “ignor[ed] states’ sovereignty and their right to self-governance.”26 Yet, claims to sovereignty were tied closely here to the specific requirements in the legislation rather than with a broader claim about constitutional authority of the states. In other words, none of the resolving states claimed to have special authority to contest national laws but rather that

Reinvigoration 85 the existing understanding of the sovereign authority of the state was transgressed by the act. Almost every state cited the Tenth Amendment as creating a restriction on federal authority. Most states that cited the Tenth Amendment complained that the law “appears to be an attempt to ‘commandeer’ the political machinery of the states and . . . require[s] the states to be agents of the federal government.”27 States adopted the anti-commandeering language from the Rehnquist Court’s federalism decisions that sought to limit congressional authority to regulate states in their sovereign capacity. Interestingly, the effort to reinvigorate the Tenth Amendment was justified as necessary to maintain federalism within the constitutional order. Justice O’Connor argued in Gregory v. Ashcroft that absent state sovereignty, the system of Madisonian balance would fail and, with it, “the promise of liberty.”28 For the federal system to function properly, Congress could not compel a state legislature “to enact or administer a federal regulatory program.”29 The Court later extended the anti-commandeering doctrine to executive officials.30 Those states claiming the federal government was attempting to commandeer it, explicitly cited New York v. United States and Printz v. United States to help legitimate their resistance. In so doing, they employed a legal doctrine created to maintain the federal system in the political effort to maintain a vestige of traditional state authority. States also made constitutional arguments beyond the Tenth Amendment. South Dakota argued that the statute’s incentive for states to comply—that state citizens would not be able to use their noncompliant state-issued identification to pass airport security or access federal buildings—violated the privileges and immunities of each citizen. This argument rested on the Court’s Fourteenth Amendment jurisprudence in which the Court has held that the Privileges or Immunities clause contains the fundamental right to travel.31 States also cited concerns over privacy, the lack of religious exemption from the image requirements, and the protections against unreasonable searches.32 New Hampshire claimed that the statute violated “Amendments 4 through 10 of the Constitution for the United States of America.”33 If some of the states relied upon the Court’s jurisprudence for their constitutional interpretation, they were cognitive of the layered nature of authority to back these claims. States did not rest their right to contest the REAL ID Act on state sovereignty or social compact. Rather, the few states that addressed authority did so through the lens of a constructive process. Colorado and Illinois cited the opposition of more than 600 groups as part of their rationale for legislative protest.34 Illinois even specified that the ACLU of Illinois had condemned the act. Other states cited the resolutions of other states to justify joining their ranks. Montana not only acknowledged the actions of other states but stated its purpose in passing the bill was to “lead other state legislatures and Governors to reject the treatment by the federal government of the 50 states by the enactment of the REAL ID Act.”35 By this point, a sketch of the constructive process is relatively clear. Organized interests voice their opposition to the legislation and urge reform. These

86  Reinvigoration interests began to lobby state legislatures to oppose the bill, which not only heightened the profile of opposition but also legitimates it. If states rely on existing judicial doctrine to justify their position, it further enhances the legitimacy by blending the Court’s legitimacy with their own. Such action also enables other states to join the fray at lower political cost. Not only can interest groups plug these legislative victories but they can take their legitimated argument to court.36 There was no significant legal impact to the resolutions but the effort fit into a broader effort to revitalize the Tenth Amendment. Since 1988, save only 2004, the Republican Party had included a reference to the Tenth Amendment in its party platform. The first several of these planks was closely tied to federal mandates, particularly unfunded mandates, and the Grand Old Party (GOP) pledged to encourage greater space and autonomy for state policymaking. In 1996, the Tenth Amendment plank took on a more specific constitutional dynamic. The focus was squarely on the states’ “job as counterbalance to the national government.” The platform lamented that the Tenth Amendment, as well as the ability of State legislatures to initiate constitutional amendment, and other constitutional tools given to the State to protect their role in the system have now been either eroded away, given away, or rendered impossible to use.37 By 2000, the platform had shifted to more clearly representing the Tenth Amendment as, in and of itself, an enforceable limit on congressional authority.38 Perhaps due to the current of resistance running through certain conservative states, the 2008 Republican platform affirmed that “Congress must respect the limits imposed upon it by the Tenth Amendment.”39 By the mid-2010s, the Republican Party embraced an interpretation of the Tenth Amendment that not only limited the scope of federal authority but that was critical to maintaining their conception of the constitutional order.40 Even as the Tenth Amendment was openly embraced by the Republican Party, activists seeking to limit federal authority sought to refashion it to locate constitutional authority in the states. Contemporary conditions made these efforts possible. First, as previously noted, the courts and the political system had come to recognize a new legitimacy in Tenth Amendment claims. The Tenth Amendment had become more than “but a truism,” it came with the authority for its own enforcement.41 Second, for several decades, prominent constitutional scholars expressed skepticism about the merits of judicial supremacy.42 These scholars did not argue for the return of state-based interpretive authority but rather that the American constitutional order would benefit from more democratic interpretive practice. Arguably, this opened the door for legitimate reconsideration of constitutional authority. In the case of states, scholars of federalism have embraced the idea of states “simply going on strike” as a legitimate feature of the American political system.43 Third, the first two decades of the twenty-first century saw sizable expansions in

Reinvigoration 87 federal authority. The Bush Administration championed expansive executive authority, including domestically, to prosecute the war on terror. The Obama Administration expanded federal regulations of the health insurance and delivery markets. In their own ways, these efforts were often perceived in zero sum fashion whereby any expansion of federal authority necessarily reduced the authority of states and/or the freedom of individual citizens. Because federalism was implicated, states were obvious vehicles for pushback. Fourth, the experience with the REAL ID Act gave activists an optimistic story to tell about what was possible when states resisted. Thomas E. Woods Jr., a neonullification advocate, trumpeted that “two dozen states nullified the REAL ID Act of 2005” and, given this success, “nullification is being contemplated in many other areas of American life as well.”44 Yet, the nullification contemplated was, once again, refashioned into a new and different version of the practice. This time, nullification took its form and justification from legal language and followed legal forms, despite courts not weighing in on the matter. Neonullifiers argued that under the Court’s anticommandeering doctrine “states cannot be forced to implement or spend money to carry out federal acts or regulating programs.” By refusing to put state resources toward the targeted federal law, states will have “serious impact on the ability to carry the federal act or put it into practical effect.” The Tenth Amendment Center refers to this as “nullification in effect.”45 This is afield from Calhounian nullification, which sought to give states a national veto, and the interposition of Massive Resistance, which sought to make constitutional amendment the exclusive means of constitutional change. Neonullification created something different: a normalization of noncompliance that would render certain national policies unenforceable. The change to nullification is notable when examined as an exercise in political innovation. Nullification and its historical implications continue to lack the necessary legitimacy when supported by Antebellum political resources. However, the anti-commandeering doctrine is viewed not only as a plausible interpretation of the Tenth Amendment but also as a position that is correct as a matter of constitutional law. By shoehorning state resistance into the anticommandeering framework, neonullifiers argue that state authority to resist federal laws was not a feature of antiquated political theory but a facet of contemporary judicial doctrine; constitutional law, not constitutional theory. Yet, if state authority was to be established through law, it would be expanded through politics. The Tenth Amendment Center argues that using the anti-commandeering framework might encourage “some courageous types [to] turn it up a notch and take a stronger stand.”46 State sovereignty resolutions were introduced in many of the same states that considered neonullification. These resolutions often cited both the Tenth Amendment and the Court’s federalism cases and urged a rebalancing of federal-state power. For example, in 2010, Utah passed S.C.R. 3 that “urge[d] the United States Congress to prohibit or repeal all compulsory federal legislation.” In 2013, a bill was introduced, but not passed, to declare the Affordable Care Act “null and void in the

88  Reinvigoration state of Utah.” The state’s office of Legislative Research and General Council commented that “the authority to nullify federal statutes is likely to be in question” but also left the door open by calling the authority “uncertain.”47 To this point, the contemporary movement has had greater success resting on legal foundations than more expansive theories about the sovereignty of the state. However, efforts are ongoing. This contemporary iteration of state-level resistance must also be understood in light of modern social movement politics. Reva Siegel observes that social movements can affect constitutional understanding by making claims on public values.48 Neonullifiers treat federalism as both structural—permitting state action against federal laws—and normative—representing the commitment to small government dedicated to specific, enumerated purposes, particularly those in domestic affairs. A perusal of the issues for which neonullification has been deployed demonstrate a hostility to the contemporary administrative state and the national security state. Libertarian-minded Americans have had limited success given the left’s commitment to the former and the right’s commitment to the latter. Thus, neonullifiers have asserted state authority as both a proxy for limited government and as a means to achieve it. Neonullifiers back these value claims by relying on a particular set of constitutional traditions. Here, a mix of contemporary and historical traditions is provided. As already discussed, anti-commandeering legal arguments serve as a foundation. But layering on this foundation is a mix of the states’ rights tradition and originalism. Much as with past efforts, Madison, Jefferson, and, even, Calhoun are used to demonstrate that in the early American constitutional order, states were arrayed against the federal government to counter efforts at aggrandizement.49 The claim can then be made that contests between federal and state governments are consistent with original design and that states as a check on federal authority is part of the original understanding of the Constitution.50 Thus, neonullification can be framed as restorative of the proper balance and as a reaffirmation of American constitutional traditions. The movement also targets those officers empowered to recognize its claims. The focus of the movement is on state legislatures to pass legislation or resolutions that refuses to enforce or otherwise assist in the execution of the law. To aid in that endeavor, organizations like the Tenth Amendment Center provide model legislation, talking points, and organizer toolkits. Siegel argues that the effort to convince officials and the public ultimately temper the claims that can be made by a movement. One might not expect this to be true of nullification but, as noted above, neonullification claims of authority are arguably more tempered than those in the past, which likely suggests the need to appeal to people outside of the movement. The use of the word “movement” has important significance. Other cases discussed herein were less a function of movement politics than the case of neonullification. Interests, even organized interests, have certainly been active in the past. Abolitionist groups agitated for personal liberty laws. White supremacist organizations like the Federation for Constitutional Government lobbied

Reinvigoration 89 for pro-segregationist action following Brown. Yet, in most instances, subnational efforts were more organic to the internal politics of the state. In other words, resolutions contesting national law were responsive to internal political sentiments. But, neonullification appears to be something closer to a national effort to promote state resistance. The modern media environment makes this much easier to do. An organization can build a website, create resources to support advocacy, publicize efforts through social media, and even help coordinate interested efforts.51 Facilitating communication and resource distribution makes organizing possible and modern technology reduces startup costs. This represents another change to the practice in that there is a notable national presence in what was once a largely bottom-up process. Of course, there was always fluidity between the national and the local in state maintenance. Madison and Jefferson were national leaders who drafted resolutions and dispatched them to their allies to be introduced in Virginia and Kentucky. Yet, should organized interests come to dominate this aspect of constitutional politics, it may lose whatever claim it has to facilitating subnational and popular values into national constitutional discourse. There is one more shift worthy of note. Madisonian practice is premised on constitutional maintenance—ensuring the proper balance of authority within the constitutional system. Contemporary efforts have been framed in much the same way. Anti-Patriot Act resolutions declared that government intrusion on privacy in the name of security trampled upon civil liberties. The creation of a de facto national identification system made state officials agents of the federal government. In the Affordable Care Act, Congress exercised regulatory control of markets traditionally under state authority. All of these critiques were to be remedied by a restoration of the balance that existed before the offending law was enacted. Yet, the effort to revive the Tenth Amendment aspires to something more sweeping: “to preserve and protect the principles of strictly limited government.”52 This is clearly a more comprehensive ideological vision of the Constitution. Neonullification plays an important role in achieving that vision. As noted above, resolutions played an important constructive role in response to the Patriot Act. Local governments, interest groups, state legislatures, activist lawyers, and judges participated in a process that unsettled, then resettled the Constitution’s meaning. Through engagement with the Constitution’s text and history, resolutions as part of a constructive process can help vitalize constitutionalism by allowing the working out of disparate visions through different institutions. Neonullification is not deeply committed to this process of maintenance. Madisonian maintenance was premised on popular authority settling disputes over what the Constitution would mean. Such settlement required a process that could build and facilitate consensus. The constructive process discussed above is one way in which citizens, actors, and institutions can tolerate overlapping and even conflicting visions when working toward settlement. To facilitate national consensus, such a process must occur nationally. Neonullification does not require this national engagement. It is sufficient for one

90  Reinvigoration state to opt out without engaging the wider community that may be negotiating conflict over meaning. A  nullifying state may choose to engage beyond the pronouncement but, in many ways, nullification assumes constitutional settlement—albeit within the state. What that can do is to create the illusion of settlement (within the state) even while the effort attempts to unsettle meaning nationally. Such efforts then may run counter to a deeper dialogue about how We the People ought to be constituted and, in so doing, undermine one of the vital practices to maintaining a constitutional democracy.

Notes 1 John D. Nugent, Safeguarding Federalism: How States Project Their Interests in National Policymaking (Norman: University of Oklahoma Press, 2009); Jessica Bulman-Pozen and Heather K. Gerken, “Uncooperative Federalism,” Yale Law Journal 118 (2009): 1256–310. 2 See Sean Wilentz, “States of Anarchy: America’s Long, Sordid Affair With Nullification,” The New Yorker, April 29, 2010; Jillian Rayfield, “The Normalization of Nullification,” TPMMudracker, April 1, 2011. 3 Wilentz, “States of Anarchy.” 4 In the 107th Congress, Republicans controlled the House and, initially, the Senate with a 50–50 split broken by Vice President Dick Cheney. Senator Jim Jeffords broke with the Republican Party, registering as an independent and caucusing with the Democrats in May of 2001. Republicans reclaimed the Senate in the next election and then controlled the House, Senate, and the presidency. 5 531 U.S. 98 (2000); see also Jack M. Balkin and Sanford Levinson, “Understanding the Constitutional Revolution,” Virginia Law Review 87 (2001): 1045–104. 6 Stephen Skowronek, The Politics Presidents Make: Leadership from John Adams to Bill Clinton (Cambridge: The Belknap University Press of Harvard University Press, 1997), 56. 7 Jon C. Teaford, The Rise of the States: Evolution of American State Government (Baltimore: The Johns Hopkins University Press, 2002), 197–202. 8 Ibid., 225. 9 “State Governments Viewed Favorably as Federal Rating Hits New Low,” Pew Research Center, April 12, 2013. Accessed August 29, 2018, www.people-press. org/2013/04/15/state-governments-view-favorably-as-federal-rating-hits-newlow/. 10 Alexander Russell Garlick, Interest Groups, Lobbying and Polarization in the United States (Publicly Available Penn Dissertations, 2016), 62. Accessed August 29, 2018, https://repository.upenn.edu/cgi/viewcontent.cgi?article=4084& context=edissertations. 11 Liz Essley Whyte and Ben Wieder, “Amid Federal Gridlock, Lobbying Rises in the States,” The Center for Public Integrity, February 11, 2016. Accessed August 29, 2018, www.publicintegrity.org/2016/02/11/19279/amid-federal-gridlock-lobbyingrises-states. 12 “Senate Joint Resolution 05–044 Concerning the State’s Commitment to Uphold Constitutional Rights in the Fight Against Terrorism,” Full Text is available at 109th Congress, 2nd Session, Congressional Record 152, March 1, 2006, S1570. 13 Ibid., at S1569. 14 The Bill of Rights Defense Committee published a compilation of these resolutions. See Resolutions and Ordinances Critical of the USA PATRIOT Act and Other Laws and Policies That Diminish Civil Liberties. Accessed August 29, 2018, https://drive.google.com/file/d/0B_3GXBIfLVB8VTRQM0JJYld5YWs/view.

Reinvigoration 91 15 For example, Montana identified sections  213, 215, 505, and 507 as needing alterations to protect First and Fourth Amendment rights. “Senate Joint Resolution 05–044,” S1572. 16 All resolutions except for Idaho explicitly called for their transmission to their state congressional delegation. Six states sent it to the president and other top federal officials and lawmakers. California took the additional step of sending it to all federal law enforcement agencies. 17 The ACLU not only advocated for resolutions through their state-level offices but provided guidance on how to advocate for such resolutions. See “How-To Guide for Passing Civil Liberties Resolutions,” ACLU. Accessed August 29, 2018, www. aclu.org/other/how-guide-passing-civil-liberties-resolutions. 18 Doe v. Ashcroft, 334 F. Supp.2d 471 (S.D.N.Y. 2004); Doe v. Gonzales, 386 F. Supp.2d 66 (D. Conn. 2005). 19 334 F. Supp.2d. 471, 475. 20 “Senate Joint Resolution 05–044,” S1572. 21 Doe v. Gonzales, 500 F. Supp.2d 379 (2007). 22 “Senate Joint Resolution 05–044,” S1573. 23 Ibid., at S1572. 24 Jack M. Balkin, “From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream,” The Atlantic, June 4, 2012. Accessed August 30, 2018, www. theatlantic.com/national/archive/2012/06/from-off-the-wall-to-on-the-wall-howthe-mandate-challenge-went-mainstream/258040/. 25 Seventeen states are still not labeled as compliant by the Department of Homeland Security. These states have either been given or been issued an extension. The list is accessed August 30, 2018, www/dhs.gov/real-id. 26 Senate Concurring Resolution No.7; the ACLU compiled the anti-REAL ID resolutions and are accessed August 30, 2018, www.realnightmare.org/news/105/. Resolutions cited below will simply cite the title of the resolution but are accessible on this webpage unless another location is provided. 27 “Missouri House Concurrent Resolution No. 20.” Accessed August 30, 2018, www. house.mo.gov/bills071/biltxt/senate/1878S.04C.htm; other states to use similar anti-commandeering language include Tennessee, Montana, Arkansas, and South Dakota. 28 501 U.S. 452 (1991), 459. 29 New York v. United States, 505 U.S. 144 (1992), 158. 30 Printz v. United States, 521 U.S. 898 (1997). 31 Saenz v. Roe, 526 U.S. 489 (1999). 32 See, for example, Colorado House Joint Resolution 07–1047. See also the resolutions of Hawaii, Idaho, and Illinois. 33 House Bill 685. 34 House Joint Resolution 07–1047; House Joint Resolution 27. 35 House Bill No. 287. 36 The ACLU of New Jersey successfully contested the state’s “TRU-ID” law, which was the state’s effort to comply with the REAL ID Act. Stacy Proebstle, “ACLU Lawsuit Halts New State ID Program,” NJ101.5, May 7, 2012. Accessed August 30, 2018, http://nj1015.com/aclu-lawsuit-halts-new-state-id-program/. 37 “Republican Party Platform of 1996,” in The American Presidency Project, ed. Gerhard Peters and John T. Woolley. Accessed August 30, 2018, www.presidency. ucsb.edu/ws/index.php?pid=25848. 38 “Republican Party Platform of 2000,” in The American Presidency Project, ed. Gerhard Peters and John T. Woolley. Accessed August 30, 2018, www.presidency. ucsb.edu/ws/?pid=25849. 39 “Republican Party Platform of 2008,” in The American Presidency Project, ed. Gerhard Peters and John T. Woolley. Accessed August 30, 2018, www.presidency. ucsb.edu/ws/index.php?pid=78545.

92  Reinvigoration 40 This may be most obvious in the 2012 platform where it not only limited the proper interpretation of the Constitution to that which was “originally intended by the Framers” but also “condemned the current Administration’s continued assault on state governments.” The plank then listed policies where states had actively attempted to block federal legislation like healthcare and immigration. “Republican Party Platform of 2012,” The American Presidency Project. Accessed August 30, 2018, www.presidency.ucsb.edu/ws/index.php?pid=101961. 41 United States v. Darby, 312 U.S. 100 (1941). 42 See, for example, Robert A. Burt, The Constitution in Conflict (Cambridge: Harvard University Press, 1992); Mark Tushnet, Taking the Constitution Away from the Courts (Princeton: Princeton University Press, 1999); Larry Kramer, The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2005). 43 Ernest A. Young, “Marijuana, Nullification, and the Checks and Balances Model of Federalism,” in Nullification and Secession in Modern Constitutional Thought, ed. Sanford Levinson (Lawrence: University Press of Kansas, 2016), 139. 44 Thomas E. Woods Jr., Nullification: How to Resist Federal Tyranny in the 21st Century (Washington, DC: Regnery Publishing, 2010), 8, 12. 45 “Model Legislation,” Tenth Amendment Center. Accessed August 31, 2018, https// tenthamendmentcenter.com/legislation/obamacare/. 46 Ibid. 47 H.B. 391: Nullification of the Patient Protection and Affordable Care Act. Accessed August 31, 2018, https://le.utah.gov/~2013/bills/hbillint/hb0391.htm. The Legislative Review Note is appended to the bill. 48 Riva B. Siegel, “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA,” California Law Review 94 (2006): 1323–419, 1352–62. 49 The Tenth Amendment Center hosts a blog that contains articles that contain many such references. See, for example, “Recapturing the True Spirit of ’76,” Tenth Amendment Center. Accessed August  31, 2018, https://blog.tenthamendmentcenter.com/2018/08/recapturing-the-true-spirit-of-76/. 50 North Dakota’s nullification bill declared that the Affordable Care Act was “not authorized by the United States Constitution and violate its true meaning and intent as given by the founders and ratifiers and are declared to be invalid in this state, may not be recognized by this state, are specifically rejected by this state, and are considered to be null in this state.” Senate Bill No. 2309, Accessed August  31, 2018, www.legis.nd.gov/assembly/62-2011/documents/11-0742-02000.pdf. 51 Groups on the left like the ACLU and Bill of Rights Defense Committee (now Defending Rights and Dissent) and the Tenth Amendment Center and the John Birch Society on the far right have such resources available on their websites. 52 “Nullifying Federal Mandates Brochure,” Tenth Amendment Center. Accessed August  31, 2018, http://tenthamendment-wpengine.netdna-ssl.com/wp-content/ uploads/brochures/10th-Amendment-Brochure.pdf.

6 Conclusion On Development and Constitutionalism

Subnational constitutional interpretation has always been a facet of the American constitutional experience. Whether interpreting principles of English constitutionalism in the mid-eighteenth century or interpreting the extent of federal authority in the first two decades of the twenty-first century, national constitutional dissent has emerged from below. The persistence of the practice is a notable feature of American politics but this may not be as surprising when its primary purpose is considered. Madison articulated this purpose most clearly when he wrote, in Federalist 46, that ambitious encroachments of the Federal Government, on the authority of the State governments, would not excite the opposition of a single State or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted.1 Madison believed that the people would rally when the case was made that the policy threatened to unbalance the proper order. In effect, states could maintain order by triggering the people in their sovereign capacity. No other source of authority could be relied upon to maintain the Constitution. Early practice appeared to prove Madison at least partly correct. The Virginia and Kentucky resolutions built off established practice and helped turn the tide against the Alien and Sedition Acts. The Jefferson Administration and Democratic Republican controlled Congress generated policies more consistent with the principles of 1798. When President Jefferson pushed for greater executive authority to enforce and maintain the embargo, commercial states used similar tactics. Resolutions were passed, the public was mobilized, electoral messages were sent, and the policy was abandoned, at least in the short run. These episodes suggest that Madison was correct that states could maintain constitutional equilibrium by placing their institutional authority against the national government while engaging popular sovereignty as the ultimate enforcement mechanism. State-based practices also helped maintain the Constitution in a second sense. Madison believed that veneration was critical to maintaining fidelity to

94  Conclusion the nation and its constitution.2 For this reason, appeals to the people as facilitated by state dissent were to be an infrequent rather than an ordinary feature of politics. Yet, veneration without engagement is unlikely and Madison was well aware that deliberation would be necessary to advance the constitutional project.3 Constitutional dissent could spark this deliberation but it would require framing dissent through shared values and stories. Injecting these arguments into the politics of meaning required the people to engage, debate, process, and, ultimately, choose sides. It is a messy process. Observers often view state-based practices skeptically given their frequent association with sectionalism, illiberalism, and division. This reading of history is understandable as these incidents represent contests over “what the [higher] law means and what law shall be.”4 Two simultaneous and contested interpretations evoke a house divided rather than one properly maintained. Yet, the moments of dissensus discussed herein are contests over shared fundamental commitments. In early America, these contests partly divided the nation but also helped forge a political commitment through conflict over constitutional values. In effect, the political bands that connected the nation strengthened through the agreement to engage in contests over interpretation, politics, and authority on the same constitutional terrain.

***** Focus on state-based maintenance helps us understand how politics develops and in what ways. Orren and Skowronek argue that political development as a discipline is concerned with durable shifts in governing authority. The durability of these shifts is often determined by the degree to which the governing authority is altered to accommodate the change. Given the fragmented and discontiguous notion of change within the system, it is likely that overlapping and incongruous orders will exist at the same time and define the political system.5 The case studies herein are largely consistent with the idea of multiple, simultaneous orders in constitutional interpretation, politics, and authority. The anti-Stamp Act resolutions of 1765 argued that Britain lacked the authority to exercise internal taxation of the colonies even while Parliament’s understanding of their power held no such limitation. The Virginia and Kentucky resolutions were part of the response to growth of the central state during the Federalist-dominated years of the new republic. The tensions between consolidation and diffusion were not resolved by Jefferson as his presidency experienced the same response when he established and enforced the embargo. Nullification and personal liberty laws contested not just an interpretive order in which Congress’s authority over the tariff and fugitive slaves was plenary but an emergent order in which the federal judiciary enjoyed the authority to settle constitutional meaning. Even as the central state apparatus strengthened dramatically during the New Deal and beyond, states attempted to limit the judicial authority to nationalize civil rights absent a constitutional amendment. In contemporary politics, the proliferation of state efforts to affect constitutional understandings occurs in an order largely associated with “the

Conclusion 95 ever-increasing supremacy the Supreme Court has assigned to itself.”6 Madison may have envisioned states as a means of restoring equilibrium but the effect of the practice was to advance alternative visions that did not fully displace the order it challenged. Today’s neonullifiers build the state’s authority to nullify federal laws upon judicial doctrine; judicial authority premised on the supremacy clause sustains the authority to contest the obligation to enforce federal law. Clearly state efforts have sought to challenge, refashion, and entrench governing authority. Given the focus on state legislative efforts, the focus is centrally on the state, not just the states. The constitutional rules and boundaries of federalism and constitutional decision-making are either sufficiently vague or nonexistent so as to permit practices based on federalism to persist despite constitutional rules like the supremacy clause or constitutional norms like judicial supremacy.7 Such ambiguity permitted entrepreneurial actors, whether it be Madison, Jefferson, Calhoun, Kilpatrick, or others, to recompose federalism to achieve a constitutional agenda. These efforts at change are not strictly limited to government but have contributed to the bundling of ideas. Madison and Jefferson laid out a libertarian argument for free speech that the courts had yet to embrace but would become the dominant framework by the twentieth century.8 Southern lawmakers helped establish associations between originalism and conservative racial policy in asserting that the Court ought to be understood according to its original meaning—permissive of public school segregation—and public officials must be bound by this understanding. Advocacy of originalism eventually became a staple of conservative constitutional politics as the South became the most reliably conservative section of the country. These changes are less about governing authority itself and more about the political landscape upon which politics plays out.9 So, state efforts to influence constitutional meaning have affected both governing authority and the political landscape. Yet, these efforts often have a lower profile than the efforts of other actors. The courts, executive, and the legislature have received ample attention. Parties, social movements, and even less organized popular mobilization have also received careful scrutiny. States have received less attention although the deficit has recently shrunk.10 To understand the developmental impact, it is useful to examine state influences— and their relative durability—on the dimensions of interpretation, politics, and authority. Such categorical analysis not only sharpens what has been impacted but clarifies the relative legitimacy of these various efforts to alter American constitutionalism.

***** What the Constitution means is vital to its survival. Whether political elites and/or the people themselves accept an interpretation or interpretations will define the degree of fidelity to the documents and its institutions. The Court’s interpretation of Article III, Section 2 that the Constitution abrogated state sovereign immunity so threatened the states under the new constitution, it was

96  Conclusion overturned by constitutional amendment within a year of the decision.11 The Court’s decisions in the Lochner era led to one of the great crises for the Court and the nation until the Court reversed course in 1937.12 The Court’s reading of free speech protections in Citizens United continue to be widely unpopular among the American people and, arguably, imperil the health of democratic practice.13 And, in perhaps the most dramatic example, the Court’s decision in Dred Scott, at best, did little to avert the constitutional crisis of slavery and, at worst, provoked the crisis. Constitutional interpretations can unbalance stability just as they can help recalibrate it. The Constitution did not provide guidance for its own interpretation. If the Constitution contained provisions that instructed how it ought to be interpreted, it would have altered—and likely narrowed the space for—the politics of interpretation. Yet, the absence of formalized rules created not just interpretive politics themselves but the need for legitimation. Madison observed that state governments would garner the natural loyalties of the people such that when they spoke, their concerns would be certain to be taken seriously by the people. Any constitutional “innovation” would be met by “sound[ing] the alarm to the people, and to exert their local influence in effecting a change of federal representatives.”14 States, then, would be players in the politics of legitimated interpretation. States as interpretive players is a relatively durable feature of the US political system. Despite the rise of judicial review, judicial supremacy, and the intermittent assertion of departmentalism, states, through political means, persist in promoting constitutional logics. Notably, such efforts have been reliably reactionary to national innovations rather than promotive of ideas not directly challenged by federal policy. From the Alien and Sedition Acts to contemporary cases like the USA PATRIOT Act, states resolved against what they believed to be new and constitutionally problematic laws. The persistence of state efforts to influence constitutional interpretation suggests that Madison was correct in his understanding of federalism in constitutional struggles. States are deeply invested in the balance of authority and the rights of their citizens. Subsequent developments like the creation of the party system and the rise of social movements have only strengthened the incentives for states to engage. What remains important in pushing interpretations forward is the legitimacy that states can provide. This legitimacy helps to make constitutional arguments in dissent more plausible and, thereby, more possibly correct, which, in turn, can help convince citizens, activists, elected officials, and judges. So long as states can advance ideas, they will play some role in interpretive politics. State efforts to influence constitutional politics are also durable features of American constitutionalism. Both constitutional meaning and authority are largely defined by the political coalitions that support them. Practices and protections, like judicial review and the right to privacy, exist not because the Constitution clearly defines them but because these concepts have enjoyed political consensus among political elites for a protracted period. The language of constitutionalism provides a powerful means to forge stronger or new coalitions.

Conclusion 97 The architects of the anti-Brown resolutions knew that their claims needed to have appeal beyond the South and arguing that the Court was infringing on a traditional sphere of state authority had greater traction than white supremacist claims. Anti-Patriot Act resolutions managed the rare feat of knitting together red and blue states by shifting the terms of the debate away from national security and focusing on privacy rights. Moreover, these efforts effect more than just the terms of the debate but can alter the political landscape itself. The libertarian conception of free speech endorsed in the Virginia and Kentucky resolutions effectively altered the practice of ordinary politics by changing what forms of dissent were permissible by the political opposition. Of course, not all state resolutions affect constitutional politics. The effort by the states hostile to the embargo failed to create a new and sustaining coalition. South Carolina’s efforts to overturn the tariff may have impeded building consensus against protective policies that adversely impacted one part of the country. And, declaring the Affordable Care Act unconstitutional has only found traction among those already highly polarized on the right. Yet, given that Madisonian maintenance requires popular consensus, it makes sense that the effort to alter coalitions and the political landscape coincide with state efforts to affect meaning. The effort to say what the Constitution means and garner a political coalition willing to support it necessarily depends on constitutional authority. This has been the area of greatest innovation and controversy in state-based practices. And the episodes where states made bold new assertions of authority are the ones most commonly associated with the practice. The Virginia and Kentucky resolutions were suggestive that states could assert countervailing interpretations to inject electoral politics into constitutional disputes. Jefferson’s draft of the Kentucky resolution arguably flirted with independent authority for a state but stopped short of detailing the extent of his authority and Kentucky itself did not make such a claim in 1798. Connecticut ordered nonenforcement of the embargo. Calhoun and, later, South Carolina argued that state conventions could nullify federal law because states were the vestiges of the people’s sovereign authority. Southern states believed that states need not follow constitutional change that did not come through a constitutional amendment. Neonullifiers believe that the federal structure empowers states to choose whether to enforce federal law whenever such enforcement depends upon state resources. Each of these represents a (re)conception of state authority to say what the Constitution means. Obviously, there is significant variance in the degree and form of authority claimed, which is reflective of previous iterations of the practice and the corresponding political fallout. Calhoun picked up on the nullification thread in Jefferson’s draft and claimed both the Virginia and Kentucky resolutions as precedent for nullification. Anti-Brown resolutions carefully steered away from Calhounian nullification even while they asserted states were the keepers of constitutional meaning through Article V amendment. Neonullifiers temper the jurisdictional force of state nullification by limiting its authority to the boundaries of the nullifying state and only to the compliance of state officials.

98  Conclusion Such coercive efforts have not made direct and lasting changes to governing arrangements. Yet, each incarnation has impacted the legitimacy of the next and compelled those seeking to empower states to grapple with the practice’s legacy. The claim that states may speak on behalf of the people has been more durable and less controversial. Madison’s innovation built on the tradition forged in the colonial experience. The practice required no independent authority for a state or its legislature but relied on popular authority as the final arbiter. This is far from a parsimonious process but its foundations rest upon long-established and respected democratic practice. Perhaps, for this reason, it has been less controversial even today. For example, Elaine Scarry praised the anti-Patriot Act resolutions as the popular validation of the rule of law. She also finds hope in the people’s ability to resist the “misrule of men”—unconstitutional and immoral action—through public resistance.15 And this is likely one of the contributing factors for the practices’ persistence. By depending on the people for constitutional settlement, Madisonian maintenance reaffirms popular sovereignty and enables the people to affirm how they ought to be constituted. The country would be well served to consider the value of practices that seek to maintain the Constitution through popular authority and invigorate democratic constitutionalism. This is particularly true at a time when the United States Supreme Court has a Republican-appointed majority that may well persist for two or more decades despite Republican presidential candidates having won the popular vote only once since 1992. Such incongruities threaten to place constitutional meaning askew from popular sentiment. In such moments, popular movements espousing constitutional visions will almost certainly seek public affirmation through institutions capable of articulating their beliefs. Such vehicles will not only be useful but essential if the people are to have voice in their constitutionalism. These conditions also raise the possibility of bolder assertions of constitutional authority. This is particularly true of states because the history of state-based practice shows interpretive claims slide to claims of authority with relative ease. Such slippage has occurred in each century of US political history. Even today in the wake of nullification and interposition, a constructive process was refashioned into neonullification in the course of a decade. This poses a major challenge to any merit state maintenance may have given that it moves the practice away from dialogue, national engagement and activism, and popular resolution. At times when American politics are already deeply divided enabling greater division and factionalism seems damaging to national identity. Yet, looking at state maintenance through the lens of contemporary democratic constitutionalism is more promising. Scholars have long complained that the Constitution is undemocratic.16 Discontent with our constituted institutions is at an all-time high and is suggestive that Americans are eager for reform that would reduce the perceived and actual distance from constitutionalism. State-based practices are far from a panacea and pose serious challenges for

Conclusion 99 the politics of interpretation and authority that the country has grappled with in the past and will continue to do so in the future. But, it is worth taking seriously institutions that encourage engagement with the nation’s institutions, its fundamental values, and its future vision for how those commitments ought to be realized.

Notes 1 James Madison, “Federalist 46,” in The Federalist Papers, ed. Clinton Rossiter (New York: Penguin Putnam, 1961), 266. 2 Ibid., 281–5. 3 Madison, “Federalist 37,” The Federalist Papers, 192–9; see also Jeremy D. Bailey, “Should We Venerate That Which We Cannot Love? James Madison on Constitutional Interpretation,” Political Research Quarterly 65, no. 4 (2012): 732–44. 4 Robert M. Cover, “Foreword: Nomos and Narrative,” Harvard Law Review 97, no. 1 (1983): 4–68, 7–8. 5 Karen Orren and Steven Skowronek, The Search for American Political Development (New York: Cambridge University Press, 2004). 6 Sanford Levinson, “Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons,” Law and Contemporary Problems 65, no. 7 (2002): 29. 7 Article VI, US Constitution. Because Article III fails to codify judicial review, let alone judicial supremacy, I treat it more as a norm here. Admittedly, one could argue that supremacy has rule-like features given that the Court has ruled itself this power, thereby creating enforceable precedent. See Cooper v. Aaron, 358 U.S. 1 (1958); City of Boerne v. Flores, 521 U.S. 507 (1997). 8 Mark A. Graber, Transformation of Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991). 9 Victoria Hattam and Joseph Lowndes, “The Ground Beneath Our Feet: Language, Culture, and Political Change,” in Formative Acts: American Politics in the Making (Philadelphia: University of Pennsylvania Press, 2007), 199–222, 203. 10 See Sanford Levinson, Nullification and Secession in Modern Constitutional Thought (Lawrence: University Press of Kansas, 2016). 11 Chisholm v. Georgia, 2 U.S. 419 (1793). 12 See Howard Gillman, The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence (Durham: Duke University Press, 1993); William G. Ross, A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937 (Princeton: Princeton University Press, 1993); Barry Cushman, Rethinking the New Deal Court: The Structure of a Constitutional Revolution (New York: Oxford University Press, 1998). 13 558 U.S. 310 (2010); Steven Kull, “Americans Evaluate Campaign Finance Reform: A Survey of Voters Nationwide,” in Program for Public Consultation (Washington, DC: University of Maryland, May 2018). 14 Madison, “Federalist 44,” The Federalist Papers, 248–56, 254. 15 Elaine Scarry, Rule of Law, Misrule of Men (Cambridge: MIT Press, 2010). 16 Sanford Levinson, Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (New York: Oxford University Press, 2006); Robert Dahl, How Democratic Is Our Constitution? 2nd ed. (New Haven: Yale University Press, 2003).

Bibliography

Albjerg, Victor L. “Internal Improvements Without a Policy.” Indiana Magazine of History 28 (1932): 168–79. Ames, Herman V., ed., State Documents on Federal Relations: The States and the United States. Philadelphia: History Department of the University of Pennsylvania, 1906. Anderson, David. “The Origins of the Press Clause.” UCLA Law Review 30 (1983): 455–541. Bailey, Jeremy D. “Should We Venerate That Which We Cannot Love? James Madison on Constitutional Interpretation.” Political Research Quarterly 65, no. 4 (2012): 732–44. Baldwin, Leland D., and Ward Hunter. Whiskey Rebels: The Story of a Frontier Uprising. Pittsburgh: University of Pittsburgh Press, 1967. Balkin, Jack M. Constitutional Redemption: Political Faith in an Unjust World. Cambridge: Harvard University Press, 2011. ———. “From Off the Wall to On the Wall: How the Mandate Challenge Went Mainstream.” The Atlantic, June 4, 2012. Balkin, Jack M., and Sanford Levinson. “Understanding the Constitutional Revolution.” Virginia Law Review 87, no. 6 (2001): 1045–104. Barber, Sotirios A., and Robert P. George. Constitutional Politics: Essays on Constitution Making, Maintenance, and Change. Princeton: Princeton University Press, 2001. Beard, Charles A. The Supreme Court and the Constitution. New York: Macmillan Company, 1912. Beienburg, Sean. “Neither Nullification nor Nationalism: The Battle for the States’ Rights Middle Ground During Prohibition.” American Political Thought: A Journal of Ideas, Institutions, and Culture 7 (2018): 271–303. Berger, Raoul. Government by Judiciary: The Transformation of the Fourteenth Amendment, 2nd ed. Indianapolis: Liberty Fund, 1997. Bilder, Mary Sarah. The Transatlantic Constitution: Colonial Legal Culture and the Empire. Cambridge: Harvard University Press, 2008. Buel, Richard. America on the Brink: How the Political Struggle Over the War of 1812 Almost Destroyed the Young Republic. New York: Palgrave Macmillan, 2005. Bulman-Pozen, Jessica, and Heather K. Gerken. “Uncooperative Federalism.” Yale Law Journal 118 (2009): 1256–310. Burt, Robert A. The Constitution in Conflict. Cambridge: Harvard University Press, 1992.

102  Bibliography Calabresi, Steven G., and Michael W. Perl. “Originalism and Brown v. Board of Education.” Michigan State Law Review (2014): 429–573. Cogliano, Francis D., and Kristen E. Phimister, eds., Revolutionary America, 1763– 1815: A Sourcebook. New York: Routledge, 2011. Collins, Charles Wallace. Whither Solid South? New Orleans: Pelican Press, 1947. Cooke, Jacob E. “The Whiskey Insurrection: A Re-Evaluation.” Pennsylvania History 30 (1963): 329–36. Cover, Robert M. “Foreword: Nomos and Narrative.” Harvard Law Review 97, no. 1 (1983): 4–68. Crowe, Justin. Building the Judiciary: Law, Courts, and the Politics of Institutional Development. Princeton: Princeton University Press, 2012. Cunningham, Noble E. Jr. The Jeffersonian Republicans: The Formation of Party Organization, 1789–1801. Chapel Hill: The University of North Carolina Press, 1957. Currie, David. The Constitution in Congress: The Federalist Period, 1789–1801. Chicago: University of Chicago Press, 1997. Curtis, Michael Kent. Free Speech, “The People’s Darling Privilege”: Struggles for Freedom of Expression in American History. Durham: Duke University Press, 2000. Cushman, Barry. Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York: Oxford University Press, 1998. Dahl, Robert. “Decision-Making in a Democracy: The Supreme Court as National Policy-Maker.” Journal of Public Law 6, no. 2 (1957): 279. ———. How Democratic Is Our Constitution? 2nd ed. New Haven: Yale University Press, 2003. Dinan, John. The American State Constitutional Tradition. Lawrence: University Press of Kansas, 2006. Elazar, Daniel. The American Partnership: Intergovernmental Cooperation in the United States. Chicago: University of Chicago Press, 1962. Elkins, Stanley, and Eric McKitrick. The Age of Federalism. New York: Oxford University Press, 1993. Ellis, Richard. The Jeffersonian Crisis. New York: W. W. Norton, 1971. Engel, Stephen M. American Politicians Confront the Court: Opposition Politics and Changing Responses to Judicial Power. New York: Cambridge University Press, 2011. Epp, Charles. The Rights Revolution. Chicago: University of Chicago Press, 1998. Feldman, Glenn. The Great Melding: War, the Dixiecrat Rebellion, and the Southern Model for America’s New Conservatism. Tuscaloosa: The University of Alabama Press, 2015. Ferguson, E. James. The Power of the Purse. Chapel Hill: University of North Carolina Press, 1961. Finn, John E. “The Civic Constitution: Some Preliminaries.” In Constitutional Politics: Essays on Constitution Making, Maintenance, and Change, edited by Sotirios A. Barber and Robert P. George. Princeton: Princeton University Press, 2001. Fischer, David H. “The Myth of the Essex Junto.” The William & Mary Quarterly 21, no. 2 (1964): 191–235. Fisher, Louis. Constitutional Dialogues: Interpretation as Political Process. Princeton: Princeton University Press, 1988. Frederickson, Kari A. Dixiecrat Revolt and the End of the Solid South. Chapel Hill: University of North Carolina Press, 2001.

Bibliography  103 Freehling, William W., ed., The Nullification Era: A Documentary Record. New York: Harper & Row, 1967. Freyer, Tony A. Little Rock on Trial: Cooper v. Aaron and School Desegregation. Lawrence: University Press of Kansas, 2007. Fritz, Christian. American Sovereigns: The People and America’s Constitutional Tradition Before the Civil War. New York: Cambridge University Press, 2008. Garlick, Alexander Russell. Interest Groups, Lobbying and Polarization in the United States. Publicly Available Penn Dissertations, 2016. Gienapp, Jonathan. “How to Maintain a Constitution: The Virginia and Kentucky Resolutions and James Madison’s Struggle with the Problem of Constitutional Maintenance.” In Nullification and Secession in Modern Constitutional Thought, edited by Sanford Levinson, 53–90. Lawrence: University Press of Kansas, 2016. Gilje, Paul A. Free Trade and Sailors’ Rights in the War of 1812. New York: Cambridge University Press, 2013. Gillette, William. Retreat from Reconstruction: 1869–1879. Baton Rouge: LSU Press, 1979. Gillman, Howard. The Constitution Besieged: The Rise and Demise of Lochner Era Police Powers Jurisprudence. Durham: Duke University Press, 1993. ———. “How Political Parties Can Use the Courts to Advance Their Agendas: Federal Courts in the United States, 1871–1891.” American Political Science Review 96, no. 3 (2002): 511–24. ———. “Party Politics and Constitutional Change: The Political Origins of Liberal Judicial Activism.” In The Supreme Court & American Political Development, edited by Ronald Kahn and Ken I. Kersch, 138–68. Lawrence: University Press of Kansas, 2006. Graber, Mark A. Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism. Berkeley: University of California Press, 1991. ———. “The Nonmajoritarian Difficulty: Legislative Deference to the Judiciary.” Studies in American Political Development 7 (1993): 35–73. ———. “The Passive Aggressive Virtues: Cohens v. Virginia and the Problematic Establishment of Judicial Power.” Constitutional Commentary 12 (1995): 67–92. ———. “Federalist or Friends of Adams: The Marshall Court and Party Politics.” Studies in American Political Development 12, no. 2 (1998): 229–66. ———. “The Problematic Establishment of Judicial Review.” In The Supreme Court in American Politics, edited by Howard Gillman and Cornell Clayton. Lawrence: University Press of Kansas, 1999. ———. “Establishing Judicial Review: Marbury and the Judiciary Act of 1789.” Tulsa Law Review 38, no. 4 (2003): 609–50. ———. Dred Scott and the Problem of Constitutional Evil. New York: Cambridge University Press, 2006. ———. A New Introduction to American Constitutionalism. New York: Oxford University Press, 2013. Greene, Jack P. Understanding the American Revolution, Issues and Actors. Charlottesville: University of Virginia Press, 1995. Greene, Jamal. “The Anticanon.” Harvard Law Review 125 (2011): 379–475. Greene, Jamal, Nathan Persily, and Stephen Ansolabehere. “Profiling Originalism.” Columbia Law Review 111, no. 2 (2011): 356–418. Hamer, Philip. “Great Britain, the United States, and the Negro Seamen Acts, 1822– 1848.” The Journal of Southern History 1 (1935): 3–28.

104  Bibliography Hattam, Victoria, and Joseph Lowndes. “The Ground Beneath Our Feet: Language, Culture, and Political Change.” In Formative Acts: American Politics in the Making, edited by Stephen Skowronek and Matthew Glassman, 199–222. Philadelphia: University of Pennsylvania Press, 2007. Hays, Bradley D. “The Curious Case of School Prayer: Political Entrepreneurship and the Resilience of Legal Institutions.” Politics and Religion 5 (2012): 394–418. ———. “Nullification and the Political, Legal, and Quasi-Legal Constitutions.” Publius: The Journal of Federalism 43 (2013): 205–26. Hening, William Waller. The Statutes at Large: Being a Collection of All the Laws of Virginia From the First Session of the Legislature, in the Year 1619, Vol. 13. Philadelphia: William Brown, Printer, 1823. Horwitz, Morton J. The Transformation of American Law, 1870–1960: The Crisis of Legal Orthodoxy. New York: Oxford University Press, 1992. Hughes, Charles Evans. Addresses and Papers of Charles Evans Hughes, Governor of New York, 1906–1908. New York: G.P. Putnam’s Sons, 1908. Jones, Douglas Lamar. “ ‘The Caprice of Juries’: The Enforcement of the Jeffersonian Embargo in Massachusetts.” The American Journal of Legal History 24, no. 4 (1980): 307–70. Keck, Thomas M. The Most Activist Supreme Court in History: The Road to Modern Judicial Conservatism. Chicago: University of Chicago Press, 2004. Kersch, Ken I. “The Talking Cure: How Constitutional Argument Drives Constitutional Development.” Boston University Law Review 94 (2014): 1083–108. Kilpatrick, James J. Interposition: Editorials and Editorial Page Presentations, The Richmond News Leaders 1955–1956. Richmond: Richmond News Leader, 1956. Klarman, Michael J. From Jim Crow to Civil Rights: The Supreme Court and the Struggle for Racial Equality. New York: Oxford University Press, 2004. Knollenberg, Bernard. Growth of the American Revolution, 1766–1775. New York: The Free Press, 1975. Koch, Adrienne. Jefferson and Madison: The Great Collaboration. New York: Alfred A. Knopf, 1950. Koch, Adrienne, and Harry Ammon. “The Virginia and Kentucky Resolutions: An Episode in Jefferson’s and Madison’s Defense of Civil Liberties.” William and Mary Quarterly 5 (1948): 145–76. Kramer, Larry. The People Themselves: Popular Constitutionalism and Judicial Review. New York: Oxford University Press, 2005. Kull, Steven. “Americans Evaluate Campaign Finance Reform: A Survey of Voters Nationwide.” In Program for Public Consultation. Washington, DC: University of Maryland, May 2018. Lemmon, Sarah McCulloh. “The Ideology of the ‘Dixiecrat’ Movement.” Social Forces 30 (1951): 162–71. Levinson, Sanford. “Bush v. Gore and the French Revolution: A Tentative List of Some Early Lessons.” Law and Contemporary Problems 65, no. 7 (2002): 29. ———. Our Undemocratic Constitution: Where the Constitution Goes Wrong and How We the People Can Correct It. New York: Oxford University Press, 2006. ———. Framed: America’s 51 Constitutions and the Crisis of Governance. New York: Oxford University Press, 2012. ———. Nullification and Secession in Modern Constitutional Thought. Lawrence: University Press of Kansas, 2016. Levy, Leonard. “The Legacy Reexamined.” Stanford Law Review 37 (1985): 767–68.

Bibliography 105 Lowndes, Joseph E. From a New Deal to the New Right: Race and the Southern Origins of Modern Conservatives. New Haven: Yale University Press, 2008. McConnell, Michael W. “Originalism and the Desegregation Decisions.” Virginia Law Review 81 (1995): 947‑1140. ———. “The Originalist Case for Brown v. Board of Education.” Harvard Journal of Law and Public Policy 19 (1995): 457. McDonald, Forrest. The Presidency of Thomas Jefferson. Lawrence: The University Press of Kansas, 1976. McLaughlin, Andrew C. “Social Compact and Constitutional Construction.” The American Historical Review 5, no. 3 (1900): 467–90. McLeod, Allegra M. “Police Violence, Constitutional Complicity, and Another Vantage.” The Supreme Court Review (2016): 157–95. McMahon, Kevin J. Reconsidering Roosevelt on Race: How the Presidency Paved the Way to Brown. Chicago: University of Chicago Press, 2003. Meacham, John. Thomas Jefferson: The Art of Power. New York: Random House, 2012. Meese, Edwin. “The Supreme Court of the United States: Bulwark of a Limited Constitution.” South Texas Law Review 27 (1986): 455–66. Miller, John C. The Federalist Era: 1789–1801. New York: Harper & Brothers Publishers, 1960. Moore, Wayne D. Constitutional Rights and Powers of the People. Princeton: Princeton University Press, 1996. Morgan, Edmund S. “Colonial Ideas of Parliamentary Power, 1764–1766.” William & Mary Quarterly 5 (1948): 311–41. Morris, Thomas D. Free Men All: The Personal Liberty Laws of the North, 1780–1861. Baltimore: The Johns Hopkins University Press, 1974. Murphy, Walter. “Who Shall Interpret? The Quest for the Ultimate Constitutional Interpreter.” The Review of Politics 48, no. 3 (1986): 401–23. ———. Constitutional Democracy: Creating and Maintaining a Just Political Order. Baltimore: Johns Hopkins University Press, 2007. Newman, Paul Douglas. Fries’s Rebellion: The Enduring Struggle for the American Revolution. Philadelphia: University of Pennsylvania Press, 2004. Nugent, John D. Safeguarding Federalism: How States Project Their Interests in National Policymaking. Norman: University of Oklahoma Press, 2009. O’Neill, Johnathan. Originalism in American Law and Politics: A Constitutional History. Baltimore: Johns Hopkins University Press, 2009. Onuf, Peter S. Jefferson’s Empire: The Language of American Nationhood. Charlottesville: University of Virginia Press, 2000. Orren, Karen, and Stephen Skowronek. The Search for American Political Development. New York: Cambridge University Press, 2004. Powell, H. Jefferson. “The Principles of ’98: An Essay in Historical Retrieval.” University of Virginia Law Review 80 (1994): 689–743. Rakove, Jack N., ed., James Madison: Writings. New York: The Library Press of America, 1999. Reardon, Sean F., and Ann Owens. “60 Years After Brown: Trends and Consequences of School Segregation.” Annual Review of Sociology 40, no. 1 (2014): 199–218. Redish, Martin H. The Constitution as Political Structure. New York: Oxford University Press, 1995. Richards, Leonard L. The Slave Power: The Free North and Southern Domination, 1780–1860. Baton Rouge: LSU Press, 2000.

106  Bibliography Ross, William G. A Muted Fury: Populists, Progressives, and Labor Unions Confront the Courts, 1890–1937. Princeton: Princeton University Press, 1993. Scarry, Elaine. Rule of Law, Misrule of Men. Cambridge: MIT Press, 2010. Sears, Louis Martin. Jefferson and the Embargo. New York: Octagon Books, 1966. Segal, Jeffrey, and Harold Spaeth. The Supreme Court and the Attitudinal Model Revisited. New York: Cambridge University Press, 2002. Siegel, Reva B. “Constitutional Culture, Social Movement Conflict and Constitutional Change: The Case of the de facto ERA.” California Law Review 94 (2006): 1323‑1420. Skowronek, Stephen. The Politics Presidents Make: Leadership from John Adams to Bill Clinton. Cambridge: The Belknap University Press of Harvard University Press, 1997. Slaughter, Thomas P. The Whiskey Rebellion: Frontier Epilogue to the American Revolution. New York: Oxford University Press, 1986. Smith, James Morton. Freedom’s Fetters: The Alien and Sedition Laws and American Civil Liberties. Ithaca: Cornell University Press, 1956. Storing, Herbert J. The Complete Anti-Federalist, Volume 1: What the Anti-Federalists Were For. Chicago: University of Chicago Press, 1981. Taylor, John. An Enquiry into the Principles and Tendency of Certain Public Measures. Philadelphia: Thomas Dobson, 1794. ———. Construction Construed, and Constitutions Vindicated. Richmond: Shepherd & Pollard, 1820. Teaford, Jon C. The Rise of the States: Evolution of American State Government. Baltimore: Johns Hopkins University Press, 2002. Teles, Steven M. The Rise of the Conservative Legal Movement: The Battle for Control of the Law. Princeton: Princeton University Press, 2008. Treanor, William Michael. “Judicial Review Before Marbury.” Stanford Law Review 58 (2010): 455–562. Tushnet, Mark. Taking the Constitution Away from the Courts. Princeton: Princeton University Press, 1999. Unger, Harlow Giles. Lion of Liberty: Patrick Henry and the Call to a New Nation. Cambridge: Da Capo Press, 2010. Walker, David B. The Rebirth of Federalism: Slouching Toward Washington, 2nd ed. New York: Chatham House Publishers, 2000. Wechsler, Herbert. “The Political Safeguards of Federalism: The Role of States in the Composition and Selection of the National Government.” Columbia Law Review 54 (1954): 543–60. Whittington, Keith E. Constitutional Constructions: Divided Powers and Constitutional Meaning. Cambridge: Harvard University Press, 1999. ———. “The Road Not Taken: Dred Scott, Judicial Authority, and Political Questions.” The Journal of Politics 63, no. 2 (2001): 365–91. ———. “ ‘Interpose Your Friendly Hand’: Political Supports for the Exercise of Judicial Review by the United States Supreme Court.” American Political Science Review 99, no. 4 (2005): 583–96. ———. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton: Princeton University Press, 2007. Wills, Garry. A Necessary Evil: A History of American Distrust of Government. New York: Simon and Schuster, 1999.

Bibliography 107 Wood, Gordon S. Empire of Liberty: A History of the Early Republic, 1789–1815. New York: Oxford University Press, 2009. Woods, Thomas E. Jr. Nullification: How to Resist Federal Tyranny in the 21st Century. Washington, DC: Regnery Publishing, 2010. Young, Ernest A. “Marijuana, Nullification, and the Checks and Balances Model of Federalism.” In Nullification and Secession in Modern Constitutional Thought, edited by Sanford Levinson. Lawrence: University Press of Kansas, 2016. Zackin, Emily. Looking for Rights in All the Wrong Places: Why State Constitutions Contain American’s Positive Rights. Princeton: Princeton University Press, 2013.

Index

Note: Note information is denoted with n and note number following the page number. Ableman v. Booth 7, 53 ACLU (American Civil Liberties Union) 81–82, 84, 85, 91n17 Adams, John Quincy 38, 44, 46 Affordable Care Act 87, 89, 92n50 Alabama 47, 49, 50, 66, 73 Alien and Sedition Acts 19–20, 22–24, 30n84, 93 American Civil Liberties Union (ACLU) 81–82, 84, 85, 91n17 anti-commandeering doctrine 83, 85, 87, 88 Anti-Federalists 15, 17 Arkansas 72 Articles of Confederation 15 Article V amendment process 67–68, 70 authority: colonial 4, 6, 11–14, 28n19; Congressional 11, 15–16, 18, 36, 39–41, 43, 44, 53, 56n10, 65, 85–86; Constitutional 1–2 (see also Constitution, US); executive or presidential 37, 63–64, 65, 80, 86–87, 93; federalism allowances for 6, 25, 43, 86–87; judicial 11, 18, 19, 21–22, 25, 26, 33, 34–35, 53, 54–55, 57n59, 63, 66–67, 70–73, 82, 94–95, 98; origins of state constitutional maintenance based on 11–27; rejection of constitutional 7, 61–77, 95; statebased 5, 6–7, 14, 17–27, 33–59, 61–77, 80–81, 84–90, 93, 97–99; veto 7, 20, 27n1, 47–48 Balkin, Jack 2, 3, 83 Beard, Charles 5 Beckett v. The School Board of the City of Norfolk 76n44

Beienburg, Sean 62 Berger, Raoul 70–71 Berrien, John 45 Bilder, Mary Sarah 4, 11 Bill of Rights Defense Committee 81 Brown v. Board of Education 7, 66, 68–69, 71, 73 Burgess, John 24 Bush, George W. 86–87 Bush v. Gore 80 Calhoun, John 34, 42, 47–48, 61, 65, 97 California 81, 91n16 Chisholm v. Georgia 18 Citizens United 96 Civil Rights Act (1866) 62 Civil Rights Commission 64 Classic, United States v. 63 Clay, Henry 51 Collins, Charles Wallace 64 colonial influences 4, 6, 11–14, 28n19 Colorado 81, 85 Commerce Clause 36, 40–41 Congress: authority of 11, 15–16, 18, 36, 39–41, 43, 44, 53, 56n10, 65, 85–86; Constitutional interpretation swayed by 3; Patriot Act revision by 82; statebased authority challenges to 7, 53, 65, 85–86; veto by, of state laws 20 Connecticut 6, 37, 38, 39–41 Constitution, US: amendment of 41, 62, 67–68, 70, 96 (see also specific amendments); First Amendment to 22–23, 24, 27, 81–82 (see also freedom entries); Fourth Amendment to 82; Tenth Amendment to 7, 23, 82, 85, 86–87, 89, 91–92n40; Thirteenth

Index  109 Amendment to 55, 61, 62; Fourteenth Amendment to 63, 64, 66, 69, 70–71, 73, 85; Fifteenth Amendment to 63; Eighteenth Amendment to 62; Commerce Clause of 36, 40–41; creation and adoption of 15; federalism based on 1; interpretation of (see interpretation, constitutional); as law of nation 1–2; Necessary and Proper Clause of 43; political context for changes to 2–3, 95–99; Privileges and Immunities Clause of 85; ratification of 4, 6, 66, 69; rejection of authority of 7, 61–77, 95; slavery referenced in 50–51; state maintenance of (see state constitutional maintenance); Supremacy Clause of 43, 95 constitutions, state 4–5 Construction Construed, and Constitutions Vindicated (Taylor) 43 constructive process 85–86, 89 Cooke, Jacob E. 18 Cooley, Thomas 24 Cooper, Thomas 47 Cooper v. Aaron 67, 72 cordon sanitaire 43–46 courts see judicial system; Supreme Court cultural influences 2, 3, 4, 5–6 Curtis, Benjamin 52 Curtis, Michael Kent 24 Davis, John 36 debt repayment 15–18, 28n26 decentralization arguments 55 Delaware 16, 37 Democratic Republicans: election of 1800 victories of 24, 27; on embargoes 35–36, 38, 40, 93; failures of state constitutional maintenance with 33, 35–36, 38, 40, 42–43; on judicial authority 21, 33; national vs. old guard 42–43; see also specific individuals Democrats 63–65, 69 Denmark Vesey Affair 43 development, political 93–99; see also political context Dickinson, John 13–14 Dinan, John 4 discursive regime 5 Dred Scott v. Sandford 7, 53, 96 due process 51, 55, 81

education, desegregation of 7, 66, 68–70, 72, 75n34, 76n41, 95 Eighteenth Amendment 62 Eisenhower, Dwight 72 elections: of 1800 22, 24, 27, 40; elective principle 50; embargoes and free trade as issues in 38, 40; popular sovereignty and 22, 74–75n17; statebased authority in platforms for 59n120; state resolution influences in 22, 26, 27; white primary 63 embargo crisis 6, 34–41, 42, 93, 94 executive branch see President failures of state constitutional maintenance: Democratic Republicans role in 33, 35–36, 38, 40, 42–43; embargo crisis and 6, 34–41, 42, 93, 94; Federalists role in 33–41, 94; formal institutionalization lack leading to 33–34; internal improvements debate and 46–47; interposition and 39–40, 41, 54; Jeffersonian tactics and 33, 35–40, 42, 46; Madison tenets in 33, 38, 39, 40, 41–42, 46; nullification of laws and 7, 34–35, 42–46, 48–50; obstructionism in 6, 34; overview of 6–7, 33–34; political context affecting 6–7, 33–50, 93, 94; slavery stance and 7, 34, 40, 42, 43–46, 50–55, 94; social compact theory 45, 46, 55; state-based authority assertion and 6–7, 33–59, 93; state resolutions and 33, 37–55, 93, 94; state sovereignty and 42, 44–46, 48–50; tariff opposition and 7, 42, 46, 47, 48–50, 94; veto stance in 7, 47–48 Fair Employment Practice Committee (FEPC) 63–64 Faubus, Orville 72 Federal Corrupt Practices Act (1910) 63 federalism: changes to 40; constitutional foundations of 1; enervated 74; minority power in 62; popular sovereignty constraints under 22, 26; state authority under 25, 43, 86–87; state constitutional maintenance under 3–4, 5, 6, 27, 79, 95; state sovereignty under 17–18; supremacy of federal government in 43 Federalist Papers: Federalist 44 17; Federalist 46 1, 21, 93; Federalist 78 1 Federalists: on embargoes and free trade 35–41; failures of state constitutional maintenance under 33–41, 94; Federalist Papers of 1, 17, 21, 93;

110 Index on judicial authority 21–22, 34–35; Madisonian state constitutional maintenance developed in response to 80; on popular sovereignty 22, 40; see also specific individuals Feingold, Russ 82 FEPC (Fair Employment Practice Committee) 63–64 Field, Stephen 24 Fifteenth Amendment 63 Fillmore, Millard 52 First Amendment 22–23, 24, 27, 81–82; see also freedom entries Florida 68, 70 Fourteenth Amendment 63, 64, 66, 69, 70–71, 73, 85 Fourth Amendment 82 Frankfurter, Felix 73, 77n70 Franklin, Ben 13 freedom of the press 19, 22–23, 24, 31n91 freedom of speech 19, 22–23, 24, 31n91, 95, 96, 97 free trade 35–41 Fries Rebellion 22 fugitive slave laws 7, 50–55, 94 Georgia 18, 28n26, 46, 47, 49, 70 Gerry, Elbridge 15 Gibbons v. Ogden 57n53 Gienapp, Jonathan 19–20 Gilje, Paul 35 Government by Judiciary (Berger) 70–71 Graber, Mark 54 Great Society 74 Greene, Jack P. 13 Greene, Jamal 71 Gregory v. Ashcroft 85 habeas corpus rights 7, 52–53, 62 Hamilton, Alexander 2, 15, 16, 17, 22 Hartford Convention 41 Henry, Patrick 12–13 Hill, Wills 14 Hughes, Charles Evans 2 Idaho 91n16 ideology 2, 64–65, 89 Illinois 85 interest groups: Constitutional interpretation swayed by 3; reinvigoration of state constitutional maintenance with 7–8, 80–84, 85–86, 88–89, 91n17

internal improvements 46–47 interposition: failures of state constitutional maintenance and 39–40, 41, 54; popular sovereignty support through 26; rejection of constitutional authority and 7, 67, 69, 71–74 interpretation, constitutional: colonial 4, 11–14; cultural influences on 2, 3, 4, 5–6; federalism allowing innovation in 6; ideology underlying 2, 89; interpretive pluralism 11, 18, 19; judicial 2–3, 7–8, 20, 21–22, 25, 26, 62, 66–67, 70–73, 85–86, 94–96, 98; originalist 66–67, 69–72, 75n34, 88, 95; political context influencing 2–3, 95–99; rejection of constitutional authority focus on 62, 66–67, 69–72; state 5, 7, 18–27, 34–35, 43, 48–50, 79, 95–99 (see also state constitutional maintenance) Iredell, James 23 Jackson, Andrew 45 Jefferson, Thomas: on Alien and Sedition Acts 19, 20, 24; committees of correspondence of 33; on debt repayment 16; embargo crisis under 35–40, 42, 93, 94; failures of state constitutional maintenance under 33, 35–40, 42, 46, 94; on freedom of speech and press 95; on internal improvements 46; on judicial authority 22; origins of state constitutional maintenance influenced by 16, 19, 20, 22, 24–25; on state constitutional maintenance 1, 6, 16, 19, 20, 22, 24–25, 33, 65, 95 Jim Crow laws 63–74; see also segregation Johnson, William 44 judicial system: authority of and review by 11, 18, 19, 21–22, 25, 26, 33, 34–35, 53, 54–55, 57n59, 63, 66–67, 70–73, 82, 94–95, 98; constitutional interpretation by 2–3, 7–8, 20, 21–22, 25, 26, 62, 66–67, 70–73, 85–86, 94–96, 98; due process in 51, 55, 81; juries asserting state authority in 38; Patriot Act authority and supervision of 81–82; reinvigoration of supremacy of 7–8, 72–73, 95; rejection of constitutional authority of 62, 63, 66–67, 70–73; slavery-related decisions in 7, 51–52, 53, 54–55, 96;

Index  111 state resolutions challenging authority of 18, 19, 21–22, 25, 53, 62–63, 66–67, 70; see also Supreme Court Judiciary Act (1789) 30n76 Judiciary Act (1801) 30n75 Kentucky: Kentucky Resolution (1798) 1, 6, 18–27, 33, 53–54, 93, 94, 97; on nullification 49, 50; on slavery 61, 62; on tariffs 49 Kersch, Ken 2, 5 Kilpatrick, James J. 67, 69 King, Martin Luther, Jr. 73 language: anti-commandeering 83, 85, 87, 88; discursive regime 5; state constitutional maintenance and use of 5–6; state resolutions echoing and altering prior 53–54, 59n112 laws: Affordable Care Act 87, 89, 92n50; Civil Rights Act (1866) 62; colonial 4, 11 (see also resolutions: colonial); Congressional authority to enact or repeal 11, 15–16, 18, 36, 39–41, 43, 44, 53, 56n10, 65, 85–86; Constitution as national 1–2 (see also Constitution, US); debt assumption 16–18; executive authority to enact 80; Federal Corrupt Practices Act (1910) 63; fugitive slave 7, 50–55, 94; Jim Crow 63–74 (see also segregation); Judiciary Act (1789) 30n76; Judiciary Act (1801) 30n75; legislative precedent of 19; national supremacy of 22; nonintercourse 36; nullification of (see nullification of laws); obstruction of 6, 34, 72, 77n70; Patriot Act 7, 81–84, 89, 91nn16–17; personal liberty 50–54, 94; REAL ID Act 84–85, 87, 89; state lawsuits challenging 1, 79; veto of 7, 20, 27n1, 47–48 Levinson, Sanford 4 libertarianism 19, 23, 80, 88, 95, 97 liberty: personal liberty laws 50–54, 94; security imbalance with 80, 81–84, 89; see also freedom entries Lincoln, Abraham 61 Lincoln, Levi 38 literacy tests 63 Little Rock Nine 72 localism 25, 69 Lochner era 96 Louisiana 67–68

Louisiana Purchase 42 Lowndes, Joseph 69 Madison, James/Madisonian tenets: on Alien and Sedition Acts 19–20; on debt repayment 16; on embargo 40; failures of state constitutional maintenance under 33, 38, 39, 40, 41–42, 46; on freedom of speech and press 23, 31n91, 95; on internal improvements 46; origins of state constitutional maintenance influenced by 16, 17, 19–26, 31n91; on popular sovereignty 19, 20–26, 48, 93; reinvigoration of state maintenance based on 79, 80, 83; Report of 1800 23, 24, 26, 33, 38, 39, 48; on republicanism 17, 20; on social compact theory 25; on state constitutional maintenance 1, 3, 4, 6, 7, 19–26, 31n91, 33, 41–42, 54, 65, 79, 80, 83, 93–94, 97–98 Marbury v. Madison 2, 18, 72–73 Marshall, John 2, 43, 50, 72–73 Martin, Luther 17 Maryland 28n26 Massachusetts: on Alien and Sedition Acts 30n84; on embargo constitutionality 36–39; on freedom of speech and press 23; on judicial authority 21; origins of state constitutional maintenance in 13, 14, 21, 23, 28n19, 30n84; on slavery 52, 53 Massive Resistance 68, 72, 73 McCulloch v. Maryland 42–43 McLeod, Allegra 71 Milliken v. Bradley 69 minority rights 47–48, 50, 62, 65 Mississippi 50, 68 Monroe, James 46 Montana 83, 85 Morris, Gouverneur 22 national bank 42–43 National Review 69 Necessary and Proper Clause 43 neonullification 79, 87–90, 92n50, 95 neutrality principle 35–36, 37 New Deal 62–63 New England: debt repayment stance of 28n26; embargo stance in 6, 35, 37–39, 41; see also specific states New Hampshire 38, 85

112 Index New Jersey 28n26 New York 25, 28n26, 50, 53 New York v. United States 85 Nixon, Richard 69 North Carolina: on debt repayment 16, 17–18, 28n26, 29n42; on nullification 50; on tariffs 49, 50 North Dakota 92n50 nullification of laws: failures of state constitutional maintenance and 7, 34–35, 42–46, 48–50; neonullification rise 79, 87–90, 92n50, 95; political context for 97; positive defiance vs. 54; reinvigoration of 79, 87–90, 92n50; rejection of constitutional authority and 62, 67, 73–74; statebased authority for 7, 20, 34–35, 42–46, 48–50, 54, 61, 62, 67, 73–74, 87–90, 97 Obama, Barack 87 obstructionism 6, 34, 72, 77n70 O’Connor, Sandra Day 85 Ohio 52, 53 O’Neill, Johnathan 69–70 originalism 66–67, 69–72, 75n34, 88, 95 origins of state constitutional maintenance: anti-government thought in 19; authority of parties in 11–27; colonial 6, 11–14, 28n19; Constitution creation and adoption in 15; debt repayment and 15–18, 28n26; freedom of speech and press in 19, 22–23, 24, 31n91; interpretive pluralism in 11, 18, 19; Jeffersonian influences on 16, 19, 20, 22, 24–25; judicial authority and review in 11, 18, 19, 21–22, 25, 26; legislative precedent in 19; libertarianism reflected in 19, 23; Madisonian tenets in 16, 17, 19–26, 31n91; overview of 6; popular sovereignty in 13, 19, 20–27; social compact theory in 19, 23–24, 25; statebased authority in 14, 17–27; state resolutions in 16–27 Orren, Karen 14, 94 Patriot Act 7, 81–84, 89, 91nn16–17 Pennsylvania: origins of state constitutional maintenance in 12, 13, 16, 18; slavery stance in 50, 51–52 personal liberty laws 50–54, 94 political context: coalition politics in 5, 7, 12, 48, 66, 69, 71–72, 80,

96–97; Constitutional changes influenced by 2–3, 95–99; failures of state constitutional maintenance in 6–7, 33–50, 93, 94; federalist (see federalism); minorities in 47–48, 50, 62, 65; political development in 93–99; political entrepreneurship in 6, 12, 27, 66, 95; reinvigoration of state constitutional maintenance in 79–92; rejection of constitutional authority in 7, 61–77, 95; state resolutions importance in 24, 26–27; see also Congress; elections; ideology; interest groups; President; social movements poll taxes 63, 64 popular sovereignty: constitutional tenets on 4, 5; elections and 22, 74–75n17; failures of state constitutional maintenance and 40, 48; origins of state constitutional maintenance on 13, 19, 20–27; political development and 93, 97–98 President: authority of 37, 63–64, 65, 80, 86–87, 93; Constitutional interpretation swayed by 3; vetoes by 27n1 Prigg v. Pennsylvania 52 Printz v. United States 85 privacy rights 81–83, 89, 96–97 Privileges and Immunities Clause 85 professionalization of state government 74, 80 Prohibition 62 Quincy, Josiah 37 REAL ID Act 84–85, 87, 89 Redish, Martin 3–4 reinvigoration of state constitutional maintenance: anti-commandeering doctrine in 83, 85, 87, 88; executive authority concerns in 80, 86–87; institutional legitimacy importance to 83–84, 86; interest group role in 7–8, 80–84, 85–86, 88–89, 91n17; liberty-security imbalance underlying 80, 81–84, 89; Madisonian tenets revival in 79, 80, 83; nullification stance in 79, 87–90, 92n50; overview of 7–8, 79–80; Patriot Act opposition underlying 7, 81–84, 89, 91nn16–17; political context for 79–92; professionalization of state government and 80; REAL ID Act

Index  113 response in 84–85, 87, 89; state-based authority assertion in 80–81, 84–90; state sovereignty claims in 82, 84–85, 87–88; Tenth Amendment claims in 82, 85, 86–87, 89, 91–92n40 rejection of constitutional authority: amendment process and 62, 67–68, 70; ideology as basis for 64–65; interposition resolutions on 7, 67, 69, 71–74; interpretation focus in 62, 66–67, 69–72; judicial authority and interpretation challenges in 62, 63, 66–67, 70–73; minority rights and 62, 65; New Deal opposition and 62–63; nullification and 62, 67, 73–74; obstructionism and 72, 77n70; originalist argument for 66–67, 69–72, 75n34, 95; overview of 7, 61–62; political context for 7, 61–77, 95; segregation-related 7, 62–74, 75n34, 76n41, 95; social compact theory referenced in 67; state-based authority foundations of 7, 61–77; state sovereignty claims underlying 63–65 Report of 1800 23, 24, 26, 33, 38, 39, 48 republicanism 17, 20, 21 Republicans: originalist arguments of 71–72; reinvigoration of state constitutional maintenance in response to 80; state-based authority supported by 59n120; Supreme Court appointments by 98; Tenth Amendment in platform of 86, 91–92n40; see also Democratic Republicans resolutions: colonial 11–14; state (see state resolutions) Rhode Island 13, 21, 37, 38, 39 Richmond News Leader 67 Roosevelt, Franklin D. 62–64 Scarry, Elaine 97 secession 49, 54–55, 61 segregation 7, 62–74, 75n34, 76n41, 95 separation of powers 80 Siegel, Reva 2, 88 Skowronek, Stephen 14, 80, 94 slavery: embargo support with 40; fugitive slave laws 7, 50–55, 94; judicial interpretations on 7, 51–52, 53, 54–55, 96; state-based authority to address 7, 34, 42, 43–46, 50–55; Thirteenth Amendment on 55, 61, 62 Smith v. Allwright 63

social compact theory: failures of state constitutional maintenance and 45, 46, 55; in origins of state constitutional maintenance 19, 23–24, 25; rejection of constitutional authority referencing 67 social movements: Constitutional interpretation swayed by 2, 3; popular activism and 26; state efforts to mobilize 79, 83–84, 88 South Carolina: on Article V amendment process 67; on debt repayment 15, 28n26; failures of state constitutional maintenance in 7, 34, 42, 43–46, 48–50, 54–55; on internal improvements 46; nullification by 7, 34, 48–50; rejection of constitutional authority by 67, 71; on secession 49, 54–55; state authority assertion by 7, 34, 42, 43–46, 48–50, 54–55; on tariffs 7, 42, 46, 48–50 South Carolina Exposition (Calhoun) 48 South Carolina v. United States 71 South Dakota 84, 85 Southern Governors Committee 65 sovereignty: popular 4, 5, 13, 19, 20–27, 40, 48, 74–75n17, 93, 97–98; state 17–18, 42, 44–46, 48–50, 63–64, 82, 84–85, 87–88, 95 Spayd, John 38 Stamp Act (1765) 6, 11–14, 94 state constitutional maintenance: constitutional interpretation in 5, 7, 18–27, 34–35, 43, 48–50, 79, 95–99; failures of 6–7, 33–59, 93, 94; federalism and 3–4, 5, 6, 27, 79, 95; Madisonian foundations of 1, 3, 4, 6, 7, 19–26, 31n91, 33, 41–42, 54, 65, 79, 80, 83, 93–94, 97–98; origins of 6, 11–32; overview of 3–10; political development and 93–99 (see also political context); reinvigoration of 7–8, 79–92; rejection of constitutional authority and 7, 61–77, 95; statebased authority assertion in 5, 6–7, 14, 17–27, 33–59, 61–77, 80–81, 84–90, 93, 97–99; state government professionalization and 74, 80; state resolutions in (see state resolutions); see also specific states state government professionalization 74, 80 state resolutions: embargo opposition in 37–41, 42; failures of state constitutional maintenance and 33,

114 Index 37–55, 93, 94; internal improvements opposition in 46–47; interposition 7, 26, 39–40, 41, 54, 67, 69, 71–74; Kentucky Resolution (1798) as 1, 6, 18–27, 33, 53–54, 93, 94, 97; nullification claims in 88; origins of state constitutional maintenance with 16–27; Patriot Act opposition 81–84, 89, 91nn16–17; REAL ID Act opposition 84–85, 87, 89; rejection of constitutional authority in 7, 61–77, 95; segregation-related 66–74, 76n41, 95; slavery-related 42, 43–46, 50–55; state constitutional maintenance through, generally 1, 6; state sovereignty-based 87–88; tariff stance in 42, 46, 47, 48–50, 94; taxation opposition 16–18, 94; Virginia Resolution (1798) as 6, 18–27, 33, 39, 53–54, 93, 94, 97 state sovereignty: failures of state constitutional maintenance and 42, 44–46, 48–50; origins of state constitutional maintenance on 17–18; political development and 95; reinvigoration of state constitutional maintenance and 82, 84–85, 87–88; rejection of constitutional authority and 63–65 States Rights Democratic Party 64–65, 69 Stewart, Potter 69 Stone, Michael 16 Supremacy Clause 43, 95 Supreme Court: authority of and review by 18, 19, 53, 63, 66, 70–72, 94–95, 98; constitutional interpretation by 2, 3, 7–8, 66, 70–72, 85–86, 94–96, 98; reinvigoration of supremacy of 7–8, 72–73, 95; sedition convictions by 24; slavery-related decisions in 7, 51–52, 53, 54–55, 96; state-based authority challenges to 7, 80; state resolutions challenging authority of 18, 19, 53, 63, 66, 70; on white primary 63 Sweatt v. Painter 66 Talmadge, Herman 66 taxation: colonial response to imposition of 6, 11–14, 28n19; debt repayment and 15–18, 28n26; excise taxes 18; national government authority for 15–16, 17; poll taxes 63, 64; state resolutions opposing 16–18, 94; tariffs as 7, 42, 46, 47, 48–50, 94 Taylor, John 20, 43–44, 45, 57n59

Teaford, Jon C. 80 Telfar, Edward 18 Tennessee 68, 76n41 Tenth Amendment 7, 23, 82, 85, 86–87, 89, 91–92n40 Tenth Amendment Center 87, 88 Texas 66 Thirteenth Amendment 55, 61, 62 Thurmond, Strom 64–65, 66 Townshed Acts 13 transportation system 46, 66 Treason Resolution 14 Truman, Harry S. 64 Trumbull, Jonathan 39 United States v. Classic 63 United States v. The William 36–37 USA PATRIOT Act 7, 81–84, 89, 91nn16–17 USS Chesapeake 35 Utah 87–88 Vermont 38, 81, 83 veto: congressional, of state laws 20; presidential 27n1; state authority to use 7, 47–48 Virginia: on Article V amendment process 68; on debt repayment 16–18, 28n26; on internal improvements 46; on nullification 50; origins of state constitutional maintenance in 6, 11–13, 14, 16–27; on tariffs 49; Virginia Resolution (1798) 6, 18–27, 33, 39, 53–54, 93, 94, 97; Virginia Resolves (1765) 11–13 war powers 56n10 Washington, George 11, 26, 40 Wheaton Resolutions 37 Whiskey Rebellion 22 Whitehead, Robert 68 white primary 63 Whither Solid South? (Collins) 64 Whittington, Keith 73 William, The, United States v. 36–37 Wills, Gary 20 Wilson, James 22, 46 Wilson, John 44 Wirt, William 44–45 Wisconsin 53–54, 59n112 Wood, Gordon 40 Woods, Thomas E., Jr. 87 Wright, Fielding 64, 65 Zackin, Emily 5