Electronic copy available at: http://ssrn.com/abstract=1693196

Federalism as Constitutional Pluralism: Letter from America* Robert Schtze

I. Introduction: Divided Sovereignty An American Invention.............. 1

II. Constitutional Conflicts before the Civil War.... 3

A. The Theory of Interposition: The Alien and Sedition Crisis...... 4

B. The Theory of Nullification: The Tariff of Abominations...... 8

i. The Sovereign States View: The South Carolina Exposition....... 10

ii. The Nationalist View: The Constitution Not a Contract........ 14

C. Excursus: The Civil War as (Exta)Constitutional Conflict..... 18

III. Constitutional Conflicts after the Civil War.......... 20

A. The Pluralist Tradition Revived: Brown v Board of Education.............. 22

B. Split Opinions: Constitutional Pluralism in the Supreme Court...... 26

IV. Conclusion: Federalism as Constitutional Pluralism..... 30

* Forthcoming in: J. Komarek & M. Avbelj (eds.), Constitutional Pluralism in the European Union and Beyond (Hart, 2011).

Electronic copy available at: http://ssrn.com/abstract=1693196

1

I. Introduction: Divided Sovereignty An American Invention

The aim of the 1787 Constitution had been to divide the sovereign authority into two parts.1

This idea of the divisibility of sovereignty had emerged at the time of the Federal

Convention, and was a distinctly American theory.2 Each State would give up part of its

sovereignty;3 the nation, on the other hand, would remain incomplete.4 While sovereignty

lay ultimately in the people, the Constitution had been delegated to and divided between two

levels of government.5

What would happen where the visions of the State people(s) and the American people

diverged? Who would be the ultimate arbiter in the event of constitutional conflicts?

Who, then, was the sovereign? The We the people formula had left

the identity of the popular sovereign indeterminate. The formula simply acknowledged that

the Americans had rejected the British concept of governmental sovereignty. Sovereignty meant

popular sovereignty. But who were the people: the peoples of the United States, or the people of

the United States? This was a question the Constitution had left unanswered. For while it had

been authorized by the State peoples acting separately, the amendment power signalled a

willingness to renounce their unilateral sovereignty. The locus of sovereignty in the

compound republic was thus left in suspense.

1 A. de Tocqueville, Democracy in America (editor: P. Bradley) (Vintage, New York 1954), 151. 2 E.K. Bauer, Commentaries on the Constitution: 1790-1860 (Columbia University Press, New York 1952), 214. On this point, see also: A C McLaughlin, The Foundations of American Constitutionalism (New York University Press, New York 1932), 78. 3 In The Federalist No 42, Madison ridiculed the theory according to which absolute sovereignty had remained in the States. [T]he articles of Confederation have inconsiderately endeavored to accomplish impossibilities; to reconcile a partial sovereignty in the Union, with complete sovereignty in the States; to subvert a mathematical axiom, by taking away a part, and letting the whole remain. (Cf. A. Hamilton, J. Madison & J. Jay, The Federalist (editor T. Ball) (Cambridge University Press, Cambridge 2003), 206.) 4 On the idea of a partial nation, see: The Federalist No 39 (ibid. 181-7). In the words of the Supreme Court in McCulloch v Maryland 17 US 316 (1819), 410: In America, the powers of sovereignty are divided between the Government of the Union and those of the States. They are each sovereign with respect to the objects committed to it, and neither sovereign with respect to the objects committed to the other. Thus, even Marshall recognized the divided sovereignty of American federalism and acknowledged a sphere in which the states were supreme (A.H. Kelly, W.A. Harbison & H. Belz, The American Constitution: Its Origins and Development (Volume I) (Norton, New York 1991), 185). 5 The import of this is clarified in The Federalist No 51 (supra n.3 at 253-4): In the compound republic of America, the power surrendered by the people, is first divided between two distinct governments, and then the portion allotted to each, subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other; at the same time that each will be controuled by itself.

2

Constitutional conflicts soon emerged.6 How would the United States resolve them? Which

authority would resolve them? We shall try to answer these questions by looking at

constitutional conflicts over federal supremacy in American constitutional history.7 Federal

supremacy was expressly provided for in the 1787 Constitution.8

6 For excellent surveys over the numerous American constitutional controversies, see: C. Warren, Legislative and Judicial Attacks on the Supreme Court of the United States: A History of the Twenty-Fifth Section of the Judiciary Act (Part I and II) (1913) 47 American Law Review 1 and 161; Anonymous, Interposition vs. Judicial Power (1956) 1 Race Relations Law Reporter 465; as well as: F. McDonald, States Rights and the Union: Imperium in Imperio, 1776-1876 (University Press of Kansas, Lawrence 2000); and for an outstanding overview of the literary constitutional conflicts prior to the Civil War, see: E.K. Bauer, supra n.2. 7 My argument concentrates on legislative (or political) protests. However, we must not forget that in the history of constitutional conflicts State courts would equally loudly protested against nationalist tendencies. One of the most famous judicial rebellions is the Martin v Hunters Lessee saga. The case concerned the confiscation of loyalist property by Virginia after independence. The land was sold to Hunter, whose right was challenged by Martin the loyalist owners devisee. The latter claimed restitution on the basis of the Jay Treaty. The Supreme Court had found in favour of Martin in Fairfaxs Devisee v Hunters Lessee, 11 US 603 (1813). However, the Virginia Court of Appeals refused to obey. It justified its judicial disobedience by arguing that the Supreme Court had no monopoly in interpreting the Constitution (cf. Hunter v Martin, 18 Va. 1 (1815)). The Supreme Court critically evaluated this pluralist position in Martin v Hunters Lessee, 14 US 304 (1816). For a detailed analysis of this case, see: C.G. Haines, The Role of the Supreme Court in American Government and Politics: 1789-1835 (University of California Press, Berkeley 1944), 340- 351. For a comparison of this case with the Maastricht Decision of the German Constitutional Court in the European Union, see: S.J. Boom, The European Union after the Maastricht Decision: Will Germany be the Virginia of Europe? (1995) 43 American Journal of Comparative Law 177. 8 Article VI Section 2 states: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the contrary notwithstanding.

However, this supremacy was

confined to the national sphere, that is: those competences that the Constitution delegated

to the federal government. What would happen, when the Union trespassed the constitutional

boundary? A first part of this Chapter investigates the emergence of theories of

interposition and nullification as constitutional remedies in the antebellum period.

Interposition still accords with the doctrine of divided sovereignty. By contrast, (unilateral)

nullification was based on the idea of State sovereignty. This second view was opposed by the

American nation and led to the Civil War. The Civil War was an (extra)constitutional

watershed. The re-construction that followed offered the Union an unprecedented

constitutional reformation. But while it accelerated national consolidation, postbellum

constitutionalism returned to the idea of divided sovereignty. And while the theory of State

sovereignty was discredited, the pluralist tradition re-entered the constitutional scene in the

second half of the twentieth century. The conclusion, consequently, argues that constitutional

pluralism is an inherent characteristic of American federalism.

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II. Constitutional Conflicts before the Civil War

The ingenious pragmatism of The Federalist had sacrificed a metaphysical disputation of

abstract sovereignty to a physical analysis of concrete constitutional structures. But this did not

mean that the potential for constitutional conflicts had not been seen. The fathers of

American constitutionalism were alert to divergent interpretations of the federal constitution:

If there is in each State, a court of final jurisdiction, there may be as many different final

determinations on the same point, as there are courts.9 And this was particularly true for

federal points.10

If it be said that the legislative body are themselves the constitutional judges of their own powers, and

that the construction they put upon them is conclusive upon the other departments, it may be answered,

that this cannot be the natural presumption, where it is not to be collected from any particular

provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to

enable the representatives of the people to substitute their will to that of their constituents. It is far more

rational to suppose, that the courts were designed to be an intermediate body between the people and

the legislature, in order, among other things, to keep the latter within the limits assigned to their

authority.

But accepting that a central authority was required to interpret the federal

Constitution, did this mean that a central court was to judge all constitutional controversies?

What would happen where the federal government had overreached its powers, say: under the

Necessary and Proper Clause? This was the Hamiltonian answer to this question:

Who is to judge of the necessity and propriety of the laws to be passed for executing the powers of the

Union? I answer, first, that this question arises as well and as fully upon the simple grant of those

powers as upon the declaratory clause; and I answer, in the second place, that the national government, like

every other, must judge, in the first instance, of the proper exercise of its powers, and its constituents in the last. If the

federal government should overpass the just bounds of its authority and make a tyrannical use of its powers ,the people,

whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the

Constitution as the exigency may suggest and prudence justify. ()

11

The view was shared by another voice within The Federalist:

9 The Federalist No 22 (Hamilton) (supra n.3 at 104). 10 Ibid. In this case, if the particular tribunals are invested with a right of ultimate jurisdiction, besides the contradictions to be expected from differences of opinion, there will be much to fear from the bias of local views and prejudices, and from the interference of local regulations. 11 The Federalist No 33 (Hamilton) and The Federalist No 78 (Hamilton) (ibid., 150 and 379).

4

It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which

is ultimately to decide, is to be established under the general government. But this does not change the

principle of the case. The decision is to be impartially made, according to the rules of the Constitution;

and all the usual and most effectual precautions are taken to secure this impartiality.12

But what if this impartiality would fail? Conceding that [i]n the first instance, the success of

the [legislative] usurpation will depend on the executive and judicial departments, which are to

expound and give effect to the legislative acts; still, in the last resort a remedy must be

obtained from the people, who can by the election of more faithful representatives, annul the

acts of the usurpers. National elections would be the constitutional remedy of the people.

What, on the other hand, was the role of the State governments? The State legislatures will be

ever ready to mark the innovation, to sound the alarm to the people, and to exert their local

influence in effecting a change of federal representatives.

13

In 1798, the federal government enacted the Alien and Sedition Acts. The Acts allowed the

Union, through its president, to adopt emergency measures. These could result in extreme

limitations of personal liberties.

Would these constitutional remedies be sufficient to resolve conflicts over the federal

boundary? It did not take too long before constitutional words became constitutional deeds.

The founders views would be tested in 1798, when the Union faced a major constitutional

crisis over two federal laws that were claimed to abridge fundamental human rights.

A. The Theory of Interposition: The Alien and Sedition Crisis

14 Two States regarded the federal laws as violations of the Bill

of Rights.15

12 The Federalist No 39 (Madison) (ibid., 186). 13 The Federalist No 44 (Madison) (ibid., 221). 14 Extracts of the Alien and Sedition Acts can be found in: H.S. Commager (ed.), Documents of American History Volume 1 (Appleton-Century-Crofts, New York 1949), 175-8. 15 The Bill of Rights had become part of the Constitution through the first ten amendments. On the origin and status of the Bill of Rights, see: A. R. Amar, The Bill of Rights as a Constitution (1990-1) 100 Yale Law Review 1131; and, by the same author, The Bill of Rights: Creation and Reconstruction (Yale University Press, New Haven 2000).

Their constitutional discontent expressed itself through resolutions of their

5

respective legislatures. The Virginia and Kentucky Resolutions reignited the final arbiter

question. The Virginia protest secretly drafted by James Madison elaborated the theory of

interposition and (re)stated the view of the Constitution as compact between the States:

That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal

government, as resulting from the compact, to which the states are parties; as limited by the plain sense and

intention of the instrument constituting the compact; as no further valid that they are authorized by the

grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of

other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty

bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities,

rights and liberties appertaining to them.

That the General Assembly doth also express its deep regret, that a spirit has in sundry instances, been

manifested by the federal government, to enlarge its powers by forced constructions of the

constitutional charter which defines them; and that implications have appeared of a design to expound

certain general phrases (which having been copied from the very limited grant of power, in the former

articles of confederation were the less liable to be misconstrued) so as to destroy the meaning and effect,

of the particular enumeration which necessarily explains and limits the general phrases; and so as to

consolidate the states by degrees, into one sovereignty[.]16

The Virginia legislature considered the Alien and Sedition Acts alarming infractions of the

Constitution. The Acts would violate the federal boundary as well as fundamental human

rights. The Virginia Parliament thus appealed to the like dispositions of the other states, in

confidence that they will concur with this commonwealth in declaring, as it does hereby

declare, that the acts aforesaid, are unconstitutional.

17

This constitutional protest was joined by the Kentucky legislature. But the tone of the

Kentucky Resolutions was stronger. They bore the imprint of Thomas Jefferson then Vice

President of the United States.

18

16 Virginia Resolutions (24 December 1798), in: H.S. Commager (ed.), Documents of American History (supra n.14), 182. 17 Ibid., 183 (emphasis added). 18 Jefferson had originally drafted an even stronger worded version, see: T. Jefferson, The Writings of Thomas Jefferson (editor: P.L. Ford) Volume VII (Putnams Sons, New York 1896), 289-309.

A first Resolution confidently asserted [t]hat the several

states composing the United States of America, are not united on the principle of unlimited

submission to their general government; but that by compact under the style and title of a

6

Constitution for the United States. [T]he government created by this compact was not made

the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its

discretion, and not the Constitution, the measure of its powers; but that as in all other cases of compact

among powers having no common Judge, each party has an equal right to judge for itself, as well of

infractions as of the mode and measure of redress.19 A second Resolution even invoked the novel

constitutional remedy of nullification. As the States were sovereign and independent, as the

authors of the Constitution, they had the unquestionable right to judge of the infraction; and,

[t]hat a nullification of those sovereignties, of all unauthorized acts done under color of that instrument is the

rightful remedy. And while ordinarily disposed to surrender its opinion to a majority of its

sister states, in the case of the Alien and Sedition Acts it would consider a silent

acquiescence as highly criminal. Kentucky would therefore not cease to oppose in a

constitutional manner every attempt by the federal government to violate the constitutional

compact.20

None of these Resolutions gained wide support. While all the States (but one) accepted the

compact theory,

21 the sister States were critical.22

The Constitution of the United States was formed by the sanction of the states, given by each in its

sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that

it rests on this legitimate and solid foundation. The states then being the parties to the constitutional compact, and

in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last

resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide

in the last resort, such questions as may be of sufficient magnitude to require their interposition.

The use of the nullification concept in the

1799 Kentucky Resolution even inspired internal criticism in the form of a rejoinder from

Virginia. The Report of 1800 written by Madison and adopted by the legislature of his

State expressly rejected the concept of nullification as a unilateral right of each State. Because

the constitution was a compact between the States, only the latter in the collective plural

could be its final interpreters:

19 Kentucky Resolutions (16 November 1798), in: H.S. Commager (ed.), Documents of American History (supra n.14), 178-9. 20 Kentucky Resolutions (22 February 1799), in: ibid., 183 at 184 21 A.H. Kelly et al, The American Constitution: Its Origins and Development (supra n.4), 140. Only Vermont argued that the Union had been formed by the people of the United States. 22 For an overview of the replies by the sister States, see the appendix to F. M. Anderson, Contemporary Opinion of the Virginia and Kentucky Resolutions (Part II) (1899) 5 American Historical Review 225 at 244 et seq.

7

It does not follow, however, that because the states as sovereign parties to their constitutional compact,

must ultimately decide whether it has been violated, that such a decision ought to be interposed, either

in a hasty manner, or on doubtful and inferior occasions. Even in the case of ordinary conventions

between different nations, where, by the strict rule of interpretation, a breach of a part may be deemed a

breach of the whole; every part being deemed a condition of every other part and of the whole, it is

always laid down that the breach must be both willful and material to justify an application of the rule.

But in the case of an intimate and constitutional union, like that of the United States, it is evident that the interposition of

the parties, in their sovereign capacity, can be called for by occasions only, deeply and essentially affecting the vital principles

of their political system.23

The view that the Supreme Court was to be the sole and final judge of constitutional conflicts

neglected that dangerous powers not delegated, may not only be usurped and executed by the

other departments, but that the Judicial Department also may exercise or sanction dangerous powers beyond

the grant of the Constitution.

24

But what remedy was there to fight off a federal usurpation? The Report characterized the

Resolutions as expressions of opinion with no legal effect. They were to excite[]

reflection. The constitutional protest of the States was an appeal to the people in the sister

states to limit the federal government.

25 Madisons constitutional contractualism thus did

not acknowledge unilateral rights to the States.26 States rights were collective rights: only the

States in the collective plural were masters of the Constitution.27

23 J. Madison, The Report of 1800, in: The Papers of James Madison (editor: D.B. Mattern et al.) Volume 17 (University Press of Virginia, Chicago 1991), 303 at 309-10 (emphasis added). 24 However true therefore it may be, that the Judicial Department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. (Ibid., 311.) 25 Ibid., 348 26 H.J. Powell, The Principles of 98: An Essay in Historical Retrieval (1994) 80 Virginia Law Review 689 at 718. This contrasted with Jeffersons vision on the nature of the federal union. The latter saw the Constitution as a bilateral compact of each State with its co-States. On the constitutional differences Jefferson and Madison, see: A. Koch & H. Ammon, The Virginia and Kentucky Resolutions: An Episode in Jeffersons and Madisons Defense of Civil Liberties (1948) 5 William and Mary Quarterly 145. 27 For the same point in the context of the European legal order, see: R. Schtze, On Federal Ground: The European Union as an (Inter)national Phenomenon (2009) 46 Common Market Law Review, 1069 at 1082.

By contrast, interposition

was a constitutional remedy that belonged to the State governments. The State governments

8

could place themselves between their people and the national government.28 They would

signal a (potential) breach of the federal contract by means of to borrow a constitutional

concept from European constitutionalism29 a yellow card mechanism.30 Yet, ultimately only

the people could decide to amend the Constitution or decide to change the federal

government. The former had successfully happened in 1795.31 The latter would ultimately

resolve the present constitutional crisis. The alarm sounded by Virginia and Kentucky was

heard. The changed public opinion led to the Revolution of 1800. The election of Thomas

Jefferson to the presidency was a confirmation of the principles of 98.32

While the idea of the Constitution as a compact between the States had settled by 1800, a

theory of State sovereignty only emerged a few decades later in the wake of another

constitutional controversy: the Tariff of Abominations. The agricultural South protested

B. The Theory of Nullification: The Tariff of Abominations

28 What Madison and his contemporaries meant by interposition derived from an astronomical context. It described the movement of something between two other things in a relationship that would temporarily interrupt this relationship. For the historical connotations of this notions, see: C.G. Fritz, American Sovereigns: The People and Americas Constitutional Tradition before the Civil War (Cambridge University Press, Cambridge 2008), 193 (referring to Johnsons Dictionary). 29 On the role of national Parliaments and the yellow card mechanism in controlling the European legislature, see: R. Schtze, Subsidiarity after Lisbon: Reinforcing the Safeguards of Federalism? (2009) 68 Cambridge Law Journal 525. 30 In The Federalist No 46 (supra n.3 at 231-2), we read: But 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. One spirit would animate and conduct the whole. The same combinations, in short, would result from an apprehension of the federal, as was produced by the dread of a foreign, yoke; and unless the projected innovations should be voluntarily renounced, the same appeal to a trial of force would be made in the one case as was made in the other. But what degree of madness could ever drive the federal government to such an extremity. And the Report of 1800 also appealed to the vigilance of State governments to sound the alarm to the public (J. Madison, The Report of 1800 (supra n.23 at 350). 31 In 1795, the Eleventh Amendment overturned the Supreme Courts interpretation of Article III Section 2 in Chisholm v State of Georgia, 2 US 419 (1793). 32 On this point, see: H. J. Powell (supra n.26), 694 fn.16 and C.G. Fritz (supra n.28), 210: Consistent with the theory of interposition, in 1800 American voters went to the polls and chose between candidates who took opposing positions on those acts. Jefferson made violations of the true principles of the constitution a central campaign issue for the Republican party. His election to the presidency and that of his followers to Congress reflected public opinion about the constitutionality of the Acts.

9

against a federal tariff that was claimed to favour the industrial North. South Carolina

exposed its anger. The South Carolina Exposition and Protest (1828) was a brainchild of

John Calhoun then Vice president of the United Sates.33 It challenged the competence of the

federation to adopt the federal tariff and claimed the discriminatory tariff was

unconstitutional.34

There is no difficulty in understanding how powers, appertaining to sovereignty, may be divided; and the

exercise of one portion delegated to one set of agents, and another portion to another. But how

sovereignty itself the supreme power can be divided how the people of the several States can

be partly sovereign, and partly not sovereign partly supreme, and partly not supreme, it is impossible

to conceive. Sovereignty is an entire thing to divide, is to destroy it.

The Exposition hereby returned to the quintessential federal question: who

was the ultimate arbiter of the Unions competences? What constitutional safeguards would

protect the States against a federal usurpation? The Expositions answer was the theory of

nullification. While Calhoun tried to portray nullification as a logical extension of the

(Madisonian) theory of interposition, the former was a radical step beyond the latter. The

theory of nullification derived from the (European) theory of undivided state sovereignty.

The constitutional philosophy behind the Exposition was this:

35

33 For a reprint of the Exposition and Protest, see: J.C. Calhoun, Union and Liberty (editor: R.M. Lence) (Liberty Fund, Indianapolis 1992), 311. 34 The Southern States claimed that the manufacturing States would bear no share of the burden of the tariff: We cultivate certain great staples for the supply of the general market of the world: They manufacture almost exclusively for the home market. Their object in the Tariff is to keep down foreign competition, in order to obtain a monopoly of the domestic market. The effect on us is, to compel us to purchase at higher price, both what we can obtain from them and from others, without receiving a correspondent increase in the price of what we sell. (Ibid. 320-1) The point was elaborated later on: The question, then, is not, whether those States should or should not manufacturefor necessity, and the policy of other nations had decided that questionbut whether they should, with or without a bounty. It was our interest that they should without. It would compel them to contend with the rest of the world in our market, in free and open competition; the effects of which would have been, a reduction of prices to the lowest point; thereby enabling us to exchange the products of our labor most advantageouslygiving little, and receiving much; while, on the other hand, in order to meet European competition, they would have been compelled to work at the lowest wages and profits. To avoid this, it was their interest to manufacture with a bounty; by which our situation was completely reversed. They were relieved by our depression. Thus, through our political connection, by a perversion of the powers of the Constitution, which was intended to protect the States of the Union in the enjoyment of their natural advantages, they have stripped us of the blessings bestowed by nature, and converted them to their own advantage. Restore our advantages, by giving us free trade with the world, and we would become, what they now are by our means, the most flourishing people on the globe. But these are withheld from us under the fear that, with their restoration, they would become, what we are by their loss, among the most depressed. (Ibid. 328-9) 35 J.C. Calhoun, A Discourse on the Constitution and Government of the United States in: J.C. Calhoun (ibid.), 79 at 105.

10

The insistence on absolute sovereignty marked a significant turning point in nineteenth

century constitutionalism.36

The Exposition started from first principles, in particular the concept of sovereignty and the

orthodox distinction between Government and Sovereignty. In the American Union,

neither the federal nor the State governments were sovereign. Sovereignty lay in the people. But

which people the American people or the State peoples? The Expositions answer was that

sovereignty resides in the people of the States respectively.

Dialectically, as a result of Calhouns insistence on state

sovereignty (i), defenders of federal authority would henceforth claim that the Union was

organic and thus permanent (ii).

i. The Sovereign States View: The South Carolina Exposition

In its protest against this Tariff of Abominations, South Carolina had proposed the theory

of nullification. This idea, voiced in the Kentucky Resolution, would receive its first theoretical

justification in the South Carolina Exposition.

37 But if that was the first

principle behind the Constitution, what constitutional remedy was there to enforce it? If we

look to the history and practical operation of the system, we shall find, on the side of the

States, no means resorted to in order to protect their reserved rights against the

encroachments of the General Government; while the latter has, from the beginning, adopted

the most efficient [sic] to prevent the States from encroaching on those delegated to them.

Alluding to The Federalists position on this point, it was held to be a strange misconception

to believe that the Supreme Court would be on the side of the States.38 It was equally mistaken

to rely on the amendment power.39

36 A.H. Kelly et al (supra n.4) at 208: Calhouns argument for nullification marked a significant turning point in nineteenth century constitutionalism. Up to this time, the debate over federalism had tended to focus on the division and allocation of powers between the federal government and the states. People could argue about the locus of specific powers without having to challenge the Union. Calhouns insentience on a unitary conception of sovereignty, however, had had the effect of forcing a more precise definition of the federal-state relationship. 37 J.C. Calhoun, Exposition and Protest (supra n.33), 344.

The only right position was this:

38 Ibid. But, by a strange misconception of the nature of our systemand, in fact, of the nature of governmentit has been regarded as the ultimate power, not only of protecting the General Government against

11

If it be conceded, as it must be by every one who is the least conversant with our institutions, that the

sovereign powers delegated are divided between the General and State Governments, and that the latter

hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of

deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in

such cases, is an essential attribute of sovereigntyof which the States cannot be divested without losing their sovereignty

itselfand being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the

parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all;

and to reserve such exclusive right to the General Government (it matters not by what department to be

exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to

divest the States, in reality, of all their rights.

It is impossible to understand the force of terms, and to deny so plain a conclusion. The opposite

opinion can be embraced only on hasty and imperfect views of the relation existing between the States

and the General Government. But the existence of the right of judging of their powers, so clearly

established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the

General Government, on contested points of authority; and this very control is the remedy which the Constitution has

provided to prevent the encroachments of the General Government on the reserved rights of the States; and by which the

distribution of power, between the General and State Governments, may be preserved forever

inviolable, on the basis established by the Constitution. It is thus effectual protection is afforded to the

minority, against the oppression of the majority.40

the encroachments of the governments of the States, but also of the encroachments of the former on the latterand as being, in fact, the only means provided by the Constitution of confining all the powers of the system to their proper constitutional spheres; and, consequently, of determining the limits assigned to each. Such a construction of its powers would, in fact, raise one of the departments of the General Government above the parties who created the constitutional compact, and virtually invest it with the authority to alter, at its pleasure, the relative powers of the General and State Governments, on the distribution of which, as established by the Constitution, our whole system restsand which, by an express provision of the instrument, can only be altered by three-fourths of the States, as has already been shown. (Ibid., 345.)

39 The disease is, that a majority of the States, through the General Government, by construction, usurp powers not delegated, and by their exercise, increase their wealth and authority at the expense of the minority. How absurd, then, to expect the injured States to attempt a remedy by proposing an amendment to be ratified by three-fourths of the States, when, by supposition, there is a majority opposed to them? Nor would it be less absurd to expect the General Government to propose amendments, unless compelled to that course by the acts of a State. The Government can have no inducement. It has a more summary modethe assumption of power by construction. The consequence is clearneither would resort to the amending powerthe one, because it would be uselessand the other, because it could effect its purpose without itand thus the highest power known to the Constitutionon the salutary influence of which, on the operations of our political institutions, so much was calculated, would become, in practice, obsolete, as stated; and in lieu of it, the will of the majority, under the agency of construction, would be substituted, with unlimited and supreme power. (Ibid., 356.) 40 Ibid., 348-9 (emphasis added).

12

Since each State was sovereign it would have the power to veto or control, within limits the

actions of the federal government on contested points of authority. This constitutional right

to nullify national laws followed from the nature of the Union as a federal government. How

was the remedy to be used? It would be confined to a violation so deliberate, palpable, and

dangerous, as to justify the interposition of the State to protect its rights.41 Who can use it:

the State government (legislature) or the State people? Since the former may not perfectly

represent the people, Calhouns federal philosophy prefers the latter option. The people of

each State may express their wish to nullify a federal law through a State Convention.42 The

(State) people here speak with the same authority and in the same sovereign capacity as

when ratifying the original 1787 Constitution.43

Constitutional theory led to constitutional practice. Four years after the Exposition, South

Carolina proceeded to adopt [a]n ordinance to nullify certain acts of the Congress of the

United States, purporting to be laws laying duties and imposts on the importation of foreign

commodities.

44

41 Ibid., 351. Calhoun would insist on this limitation in A Discourse on the Constitution and Government of the United States Discourse (supra n.35), 197-8: To avoid this, prudence and propriety require that they should abstain from interposing their authority, to arrest an act of their common government, unless the case, in their opinion, involve a clear and palpable infraction of the instrument. They are bound to go further and to forbear from interposing, even when it is clear and palpable, unless it be, at the same time, highly dangerous in its character, and apparently admitting of no other remedy; and for the plain reason, that prudence and propriety require, that a right so high and delicate should be called into exercise, only in cases of great magnitude and extreme urgency. 42 On the concept of convention in American constitutionalism, see: G.S. Wood, The Creation of the American Republic, 1776-1787 (University of North Carolina Press, Chapel Hill 1998), Chapter 8. 43 How could nullification be reconciled with Article V of the US Constitution? According to Calhoun, the general government could insist on its construction of a federal power, but it would have to change the Constitution (supra n.33 at 356-60). For that, it would have to marshal the support of three-fourths of the States. Only were three-fourths of the States backed the federal construction, would the State nullification be overturned. Put the other way: nullification was to be final if supported by one quarter of the States. This inversion of the amendment power was admitted to have the effect of placing the majority under the control of the minority, but this was justified as a necessary constitutional check on the tyranny of the numerical majority. (This point would become central in Calhouns later constitutional writings as the doctrine of concurrent majority.) However, the doctrine of State sovereignty set substantive limits even to the amendment power. Thus, a Sate would not be bound by an Article V amendment if it transcends the limits of the amending power be inconsistent wit the character of the constitution and the ends for which it was established or with the nature of the system. In such a case, the State is not bound to acquiesce. It may choose whether it will, or whether it will not secede from the Union. One or the other course it must take. To refuse acquiescence, would be tantamount to secession; and place it as entirely in the relation of a foreign State to the other States, as would a positive act of secession. (Ibid., 212.) 44 The text of the Ordinance can be found in: H.S. Commager (ed.), Documents of American History (supra n.14), 261.

In line with Calhouns theory, a State Convention had found that the federal

13

Union had exceeded its just powers under the constitution. The Convention ordained thus

the following:

We, therefore, the people of the State of South Carolina, in Convention assembled, do declare and

ordain [t]hat the several acts and parts of acts of the Congress of the United States, purporting to be

laws for the imposing of duties and imposts on the importation of foreign commodities, and now

having actual operation and effect within the United States, and, more especially [the tariff acts of

1828 and 1832] are unauthorized by the Constitution of the United States, and violate the true

meaning and intent thereof, and are null, void, and no law, nor binding upon this State, its officers or

citizens

And it be further ordained, [t]hat it shall not be lawful for any of the constitutional authorities, whether of

this State or of the United States, to enforce the payment of the duties imposed by the said acts within

the limits of the State; but it shall be the duty of the Legislature to adopt such measures and pass such

acts as may be necessary to give full effect to this Ordinance, and to prevent the enforcement and arrest

the operation of the said acts and parts of acts of the Congress of the United States within the limits of

this

State[.]45

The people of South Carolina insisted that this was their constitutional right. And, in order to

show their determination, the people of South Carolina declared that it would not submit to

the application of federal force. Were the federal government to employ military force against

the State, such action would be deemed as inconsistent with the longer continuance of South

Carolina in the Union. In such a situation, the people of South Carolina would hold

themselves absolved from all further obligation to maintain or preserve their political

connection with the people of the other States, and will forthwith proceed to organize a

separate government, and do all other acts and things which sovereign and independent States

may of right do.

46

45 Ibid., 261-2. 46 Ibid., 262.

This was a threat to use the ultimate remedy: secession.

14

ii. The Nationalist View: The Constitution Not a Contract

The national reaction to this constitutional challenge was swift. Two weeks after the South

Carolina Ordinance, President Jackson issued the Proclamation regarding Nullification.47

The ordinance is founded, not on the indefeasible right of resisting acts which are plainly

unconstitutional and too oppressive to be endured, but on the strange position that any one State may

not only declare an act of Congress void, but prohibit its execution; that they may do this consistently

with the Constitution; that the true construction of that instrument permits a State to retain its place in

the Union and yet be bound by no other of its laws than those it may choose to consider as

constitutional. It is true, they add, that to justify this abrogation of a law it must be palpably contrary to

the Constitution; but it is evident that to give the right of resisting laws of that description, coupled with

the uncontrolled right to decide what laws deserve that character, it to give the power of resisting all

laws[.]

The latter was categorical:

48

The Constitution of the United States, then, forms a government, not a league, and whether it be formed by

compact between the States or in any other manner, its character is the same. It is a government in which all the

people are represented, which operates directly on the people individually, not upon the States; they

retained all the power they did not grant. But each State having expressly parted with so many powers as to

constitute, jointly with the other States, a single nation, cannot, from that period, possess any right to secede, because such

secession does not break a league, but destroys the unity of a nation; and any injury to that unity is not only a breach which

would result from the contravention of a compact, but it is an offense against the whole Union. To say that any State

may at pleasure secede from the Union is to say that the United States are not a nation, because it would

be a solecism to contend that any part of a nation might dissolve its connection with the other parts, to

their injury or ruin, without committing any offense.

This position was incompatible with the nature of the Union. What was the Presidents view

on the nature of the Union?

49

47 The text of Jacksons Proclamation to the People of South Carolina (10 December 1832) can be found in: H.S. Commager (ed.), Documents of American History (supra n.14), 262 et seq. 48 Ibid., 263. 49 Ibid., 266 (emphasis added).

15

The Proclamation underlined that the States severally have not retained their entire

sovereignty as they surrendered many of their essential parts of sovereignty.50 The States

had founded an (incomplete) nation and could not unilaterally secede. Despite its nationalist

tone, the Jacksonian response was still based on the idea of divided sovereignty and tolerant to

the idea of the Constitution as a compact between the States.51 This would gradually change. For in

trying to counter the sovereign State view, nationalist commentary gradually abandoned

the contract theory of the union.52 The famous illustration of this strategic shift was Websters

The Constitution not a Compact between Sovereign States.53

How did Webster reply to the South Carolina doctrine? Webster criticised the idea of a

constitutional compact. When applied to compacts between sovereign States, the term

constitutional affixes to the word compact no definite idea. And if one admits our instrument

of government to be a constitution, then, for that reason, it is not a compact between

sovereigns: a constitution of government and a compact between sovereign powers being

essentially unlike in their very natures, and incapable of being the same.

54

50 Ibid., 267. 51 K.E. Whittington, The Political Constitution of Federalism in Antebellum America: The Nullification Debate as an Illustration of Informal Mechanisms of Constitutional Change (1996) 26 Publius 1 at 14-17. 52 D. Tipton, Nullification and Interposition in American Political Thought (University of New Mexico, Albuquerque 1969), 31. 53 D. Webster, The Constitution not a Compact between Sovereign States (Woodfall & Kinder, London 1862). This famous speech, given in 1833, was a reply to John Calhouns speech Introducing Resolutions Declaratory of the Nature and Power of the Federal Government of 22 January 1833. Calhoun had argued that the United States had been formed on the basis of a constitutional compact to which the people of each State acceded as a separate sovereign community. The federal government was not made the final judge of the powers delegated to it, since that would make its discretion, and not the Constitution, the measure of its powers. [A]s in all other cases of compact, among sovereign parties, without any common judge, each [state] has an equal right to judge for itself, as well of the infraction as of the mode and measure of redress[.] (Ibid. 1-2.) 54 Ibid., 6-7.

What is a

constitution? Certainly not a league, compact, or confederacy, but fundamental law. A

constitution is the fundamental law of the State; and this is expressly declared the supreme

law. The Constitution is not a contract, but the result of a contract: The people have

agreed to make a constitution; but when made, that constitution becomes what its name

imports. It is no longer a mere agreement. Thus, although the people of the several States

were originally parties to a compact, [t]hey approved it, and agreed to adopt it, as a

16

constitution, and henceforth it must stand as a constitution until it shall be altogether

destroyed.55

Could the States secede from the Union? Secession was no constitutional remedy, but

revolution.

56 [T]here can be no such thing as secession without revolution. While admitting

that the people in every State lived under two governments, each having its separate sphere,

the State peoples did not have a unilateral right to secede: The State constitutions are

established by the people of the States. Th[e] [federal] constitution is established by the people

of all the States. How, then, can a State secede? How can a State undo what the whole people

have done? How can she absolve her citizens from their obedience to the laws of the United

States? The Union is not a temporary partnership of States.57From this also followed the

illegitimacy of the theory of nullification. In the case of nullification a single State interposes

his veto. The result would be that no act of Congress can bind all the States, the

constitutionality of which is not admitted by all; or, in other words, that no single State is

bound, against its own dissent[.]58

55 Ibid., 26-30. 56 Ibid., 12. And a little later (ibid., 18): Sir, as soon as this ordinance [of nullification] shall be carried into effect, a revolution will have commenced in South Carolina. She will have thrown off the authority to which her citizens have heretofore been subject. She will have declared her own opinions and her own will to be above the laws and above the power of those intrusted [sic] with their administration. If she makes good these declarations, she is revolutionized. 57 Ibid., 44-5. 58 Ibid., 20.

The theory of nullification thus violated the supremacy

clause. Yet, Webster admitted that federal laws were only supreme within its sphere. The

central question still was:

Who is to construe finally the Constitution of the United States? We all agree that the Constitution is the supreme

law; but who shall interpret that law? In our system of the division of powers between different

governments, controversies will necessarily sometimes arise, respecting the extent of the powers of each.

Who shall decide these controversies? Does it rest with the general government, in all or any of its

departments, to exercise the office of final interpreter? Or may each of the States, as well as the general

government, claim this right of ultimate decision? The practical result of the whole debate turns on this

point. The gentleman contends that each State may judge for itself of any alleged violation of the

Constitution, and may finally decide for itself, and may execute its own decisions by its own power. All

the recent proceedings in South Carolina are founded on this claim of right. ()

17

In my opinion, Sir, even if the Constitution of the United States had made no express provision for such

cases, it would yet be difficult to maintain, that, in a Constitution existing over four-and-twenty States,

with equal authority over all, one could claim a right of construing it for the whole. This would seem a

manifest impropriety; indeed, an absurdity. () Congress must judge of the extent of its own powers so often as it

is called on to exercise them, or it cannot act at all; and it must also act independent of State control, or it cannot act at all.

The right of State interposition strikes at the very foundation of the legislative power of Congress. It possesses no effective

legislative power, if such right of State interposition exists; because it can pass no law subject to abrogation. It cannot

make laws for the Union, if any part of the Union may pronounce its enactments void and of no

effect.59

For the nationalist Webster, the competence to rule on competence belongs to the federal

government, and to the courts of the United States. Congress may judge of the true extent

and just interpretation of the specific powers granted to it[.]And what was true for the

legislature was still more express and emphatic for the judiciary.

60 This followed from a

settled axiom in politics that every government must have a judicial power co-extensive with

its legislative power.61 In decisions relating to the federal boundary between the States and the

Union, the tribunal that was thus ultimately to decide was the Supreme Court. If the general

legislature should, at any time, overleap their limits, the judicial department is a constitutional

check.62 Nullification was thus as distinctly revolutionary as secession. And, it was even less

respectable than secession, since it did not avoid the contradiction of wishing to belong to

the Union while rejecting its authority.63

59 Ibid., 45-9 (emphasis added). 60 Ibid., 45 and 50. 61 Ibid., 50 and 52. This had also been the view of A. Hamilton in The Federalist No 80 (supra n.3 at 387): If there are such things as political axioms, the propriety of the judicial power of a government being co-extensive with its legislative, may be ranked among the number. In the European Union legal order, this is wrongly contested by Professor J. Weiler. For a critical analysis of this mistaken view, see: R. Schtze, From Dual to Cooperative Federalism: The Changing Structure of European Law (Oxford University Press, Oxford 2009), 155. 62 D. Webster, The Constitution not a Compact (supra n.53), 55. 63 Ibid., 62.

18

C. Excursus: The Civil War as (Extra)Constitutional Conflict

Despite its constitutional victory in 1833,64 the federal government had lost a philosophical

battle in the South. The doctrine of State sovereignty emerged strengthened from the tariff

crisis.65 It would, in the following decades, gain respectability in constitutional politics. With

the slavery question hardening into a divisive constitutional conflict, it was a matter of time

until the manufacturing North and the agricultural South would fatally clash. In 1852, South

Carolina declared that the continuing encroachments upon the reserved powers of the States

would justify its withdrawal from the American Union. (It only declined to exercise her right

in deference to the opinions and wishes of the other slaveholding States.66) Considering

these encroachments to have become unbearable, it took the final step in 1860 and adopted

the Ordinance to dissolve the union between the State of South Carolina and the other States

united with her under the compact entitled The Constitution of the United States of

America.67 Ten States would follow its lead. For the North this was a rebellion. The

contrasting constitutional visions between the North and the South on the question of

sovereignty led to the Civil War.68

64 In 1833, Congress adopted the Force Bill authorizing the President to enforce the tariff, but also the Compromise Tariff that became law on the same day as the Force Bill. The latter induced South Carolina to repeal its nullification ordinance by the same convention that had passed it. 65 The nullification crisis, in the opinion of an American commentator, created the concepts and some of the political conditions that eventually led to the Civil War ( R. E. Ellis, The Union at Risk: Jacksonian Democracy, States Rights and the Nullification Crisis (Oxford University Press, Oxford 1987), 198). 66 Cf. Declaration of the Immediate Causes which induce and justify the Secession of South Carolina from the Federal Union, in: H.S. Commager (ed.), Documents of American History (supra n.14), 372 at 373. 67 For the text of the Ordinance, see: H.S. Commager (ed.), Documents of American History (supra n.14), 372. It read: We, the people of the State of South Carolina, in convention assembled, do declare and ordain, and it is hereby declared and ordained, that the ordinance adopted by us in Convention on the 23d day of May, in the year of our Lord 1788, whereby the Constitution of the United States of America was ratified, and also all Acts and parts of Acts of the General Assembly of this State ratifying amendments of the said Constitution, are hereby repealed; and that the union now subsisting between South Carolina and other States under the name of the United States of America is hereby dissolved.

68 On the various theories of the civil war, see: A.H. Kelly et all, The American Constitution: Its Origin and Development (supra n.4), 298-301. According to President Buchanan Lincolns predecessor secession should not have been countered by force. The question fairly stated is, Has the Constitution delegated the Congress the power to coerce a State into submission which is attempting to withdraw or has actually withdrawn from the Confederacy? If answered in the affirmative, it must be on the principle that the power has been conferred upon Congress to declare and to make war against a State. After much serious reflection I have arrived at the

19

What was the constitutional philosophy of the North during the Civil War? We find a

powerful nationalist interpretation of the American Union in President Lincolns address on

4 July 1861.69 For the President, it was unthinkable that any state of the Union may, consistently

with the national Constitution, and therefore lawfully, and peacefully, withdraw from the Union,

without the consent of the Union, or of any other state.70 A unilateral right to secede had not

only unjust practical consequences.71

Having never been States, either in substance, or in name, outside of the Union, whence this magical

omnipotence of "State rights, asserting a claim of power to lawfully destroy the Union itself? Much is

said about the "sovereignty of the States; but the word, even, is not in the national Constitution; nor, as

is believed, in any of the State constitutions The Union is older than any of the States; and, in fact, it

created them as States. Originally, some dependent colonies made the Union; and, in turn, the Union

threw off their old dependence, for them, and made them States, such as they are. Not one of them ever

had a State constitution, independent of the Union.

From a (national) theoretical perspective it was wrong:

This sophism derives much perhaps the whole of its currency, from the assumption, that there is

some omnipotent, and sacred supremacy, pertaining to a State to each State of our Federal Union. Our

States have neither more, nor less power, than that reserved to them, in the Union, by the Constitution

no one of them ever having been a State out of the Union. The original ones passed into the Union

even before they cast off their British colonial dependence [In the Declaration of Independence] the

"United Colonies were declared to be "Free and Independent States; but, even then, the object plainly

was not to declare their independence of one another, or of the Union; but directly the contrary, as their

mutual pledge, and their mutual action, before, at the time, and afterwards, abundantly show

72

conclusion that no such power has been delegated to Congress or to any other department of the Federal Government The fact is that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war[.] (Cf. J. Buchanan, States and Withdrawal from the Union (Fourth Annual Message, 3 December 1869), as quoted in: H.S. Commager (ed.), Documents of American History (supra n.14), 366 at 368-9.) 69 A. Lincoln, Message to Congress in Special Session (4 July 1861), in: The Collected Works of Abraham Lincoln Volume IV (editor: R. P. Basler) (Rutgers University Press, New Brunswick 1953), 421 et seq.. 70 Ibid., 433 71 The nation purchased, with money, the countries out of which several of these States were formed. Is it just that they shall go off without leave, and without refunding? The nation paid very large sums, (in the aggregate, I believe, nearly a hundred millions) to relieve Florida of the aboriginal tribes. Is it just that she shall now be off without consent, or without making any return? The nation is now in debt for money applied to the benefit of these so-called seceding States, in common with the rest. Is it just, either that creditors shall go unpaid, or the remaining States pay the whole? A part of the present national debt was contracted to pay the old debts of Texas. Is it just that she shall leave, and pay no part of this herself? Again, if one State may secede, so may another; and when all shall have seceded, none is left to pay the debts. Is this quite just to creditors? Did we notify them of this sage view of ours, when we borrowed their money? (Ibid., 435-6.) 72 Ibid. 433-35.

20

Lincolns North won the Civil War. This extra-constitutional fact henceforth discredited the

theory of State sovereignty.73 The constitutional reconstruction that followed was the

greatest federal reform in the history of the American Union.74 The Civil War Amendments

caused an unprecedented shift towards the nationalist end of the federal spectrum.

Emblematic for this consolidation of the Union was the Fourteenth Amendment.75

While the Civil War was a constitutional break, it caused no total revision of the American

Constitution. There were continuities as well as discontinuities with the constitutional status quo

ante. Most importantly: constitutional theory returned to the idea of divided sovereignty.

It not

only inverted the relationship between State and federal citizenship. It subjected the States

for the first time to the homogenizing forces of national fundamental rights. The United

States had moved towards a more United State(s). Yet, the American doctrine of divided

sovereignty had survived the Civil War, and with it the constitutional debate on the nature of

the Union. The meaning of the We the people formula would continue to attract a plurality

of constitutional visions in the postbellum era. They will be discussed in the next section.

III. Constitutional Conflicts after the Civil War

76

73 Secession failed the test of arms. The Civil War did in fact repudiate the principle of secession as a constitutional resort of sovereign states. (Cf. D. Tripton, Nullification and Interposition in American Political Thought (supra n.52), 50.) 74 B. Ackerman goes as far as to claim that reconstruction was a re-founding. However, it may be too strong a claim to insist that the First Reconstruction Act is functionally equivalent to Article Seven of the 1787 Constitution (B. Ackerman, We the People: Transformations (Harvard University Press, Cambridge, Mass. 2000), 198-9). 75 The first section of the Fourteenth Amendment states: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws. For an analysis of the (various) constitutional positions on the Fourteenth Amendment, see: A.R. Amar, The Bill of Rights and the Fourteenth Amendment (1991-2) 101 Yale Law Journal 1193.

The

76 W. H. Bennett, American Theories of Federalism (University of Alabama Press, Tuscaloosa 1967), 179. See also: C. G. Haines, The Role of the Supreme Court (supra n.7), 107: Not even the civil war fought largely on the issue of state

21

Union had split the atom of sovereignty and was, therefore, neither Staatenbund nor

Bundesstaat.77 Constitutional conflicts gradually ebbed down: Interest in the nature of

sovereignty and in pinpointing its location in the union waned as the country got father and

father away from the War.78

versus national sovereignty could destroy the belief in the divisibility of sovereignty in a federal system such as that established by the Constitution. 77 German federal thought was never widely adopted in the United States. However, we can see the dichotomy between Bundesstaat and Staatenbund enter into the constitutional discourse through two outstanding individuals: Alexander Stephens and Woodrow Wilson. Stephens the Southern theorist of nineteenth century constitutional law continued to insist that the American Union was part of the genus of Staatenbund: Our system, taken altogether, we have seen, is a peculiar one. The world never saw its like before. It has no prototype in any of all the previous Confederations, or Federal Republics, of which we have any account. It is neither a Staaten-bund exactly, nor a Bundesstaat, according to the classification of Federal Republics by the German Publicists. It differs from their Staaten-bund in this, that the powers to be exercised by the Federal Head are divided into three departments, the Legislative, Judicial, and Executive, with a perfectly organized machinery for the execution of these powers within its limited sphere, and for the specific objects named, upon citizens of the several States without the intermediate act or sanction of the several States. In the Staaten-bund, or States Confederation, according to their classification, the Federal Government can enact no laws which will operate upon the citizens of the several States composing it, until the States severally give them their sanction. Such was our Federal Union under the first Articles. But our present system, as we have seen, went a step further, and introduced a new principle in Confederations. While, therefore, our system differs specifically in this particular from their Staaten-bund, or States Confederation, yet it agrees entirely with it in its essential Generic difference from their Bundesstaat, in this, that the States collectively constitute an international unit as regards third parties, but do not cease to be international units as regards each other. It differs further Generically from their Bundesstaat, or Federative State, or what may properly be called an incorporate Union, in this, that no Sovereign Power whatever, under our system, is surrendered or alienated by the several States; it is only delegated. The difference between our system and their Staaten-bund, is, however, only specific, as we see. It is not Generic. They are both essentially the same. Ours is a newly developed species of Government of their Genus Staaten-bund. This specific difference is what struck De Tocqueville as a wholly novel theory, which may be considered as a great discovery in modern political science, and for which there was as yet no specific name. Cf. A. Stephens, A Constitutional View of the Late War between the States Volume II (National Publishing Company, Philadelphia 1870), 18-9.

By contrast, Wilson argued that the American Union was a Federal State (cf. W. Wilson, An Old Master And Other Political Essays (Kessinger, Whitefish 2006)). The Union was a sovereign state that had competence-competence (ibid. 93-4): In the federal state self-determination with respect to their law as a whole has been lost by the member states. They cannot extend, they cannot even determine, their own powers conclusively without appeal to the federal authorities. They are unquestionably subject to a political superior. They are fused, subordinated, dominated. While the States have dominion, the Union has sovereignty: For with the federal state lie the highest powers of originative [sic] legal determination, the ultimate authority to warrant change and sanction jurisdiction. On the German concept of competence-competence, see: R. Schtze, From Dual to Cooperative Federalism (supra n.61), 34-6. 78 W.H. Bennett, American Theories of Federalism (supra n.75), 195. While this was true for the internal sphere, sovereignty as a concept would still be employed in the twentieth century in the context of the international powers of the United States (cf. United States v. Curtiss-Wright Export Corp., 299 U.S. 304 (1936) at 315-8: [T]he investment of the federal government with the powers of external sovereignty did not depend upon the affirmative grants of the Constitution. [They are] vested in the federal government as necessary concomitants of nationality). For a discussion of the exceptional nature of (American) foreign affairs federalism, see: R. Schtze (supra n.61), 108-22.

22

But this constitutional peace was not to last. The balance between national and

international elements within the American Constitution would be significantly challenged in

the twentieth century. The new nationalism expressed itself in two interrelated ways.

First, the New Deal radically shifted the federal boundary in favour of the nation as the

Union would be allowed to legislate in areas that were previously viewed as exclusive police

powers of the States.79 Federal laws increasingly posed an external limit to State powers.

Secondly, through the doctrine of incorporation of federal rights,80

The unitary potential of nationally defined individual rights, and their potential conflict

with States rights, can be seen in Brown v Board of Education.

the States would

encounter ever more internal limits to their powers: national individual rights. These two

developments eventually broke the constitutional peace between the States and the Union.

New constitutional conflicts emerged and with them the old language of interposition and

State sovereignty.

A. Pluralist Traditions Revived: Brown v Board of Education

81 Brown was a parent from Topeka

in Kansas. His daughter was forced to attend a segregated school, because of a Kansas law that

permitted school districts to establish separate elementary schools for black and white pupils.

Together with twelve other parents, Brown brought proceedings against the Board of

Education of his city on the basis of the Fourteenth Amendment. This was innovative. The

Supreme Court had previously held that racial segregation was constitutional if it conformed

to the separate but equal formula;82

79 For an analysis, see: R. Schtze (supra n.61), 80 et seq. 80 On the meaning and development of the incorporation doctrine, see: A.R. Amar, The Bill of Rights and the Fourteenth Amendment (supra n.75). 81 Brown v Board of Education of Topeka, 347 U.S. 483 (1954).

and seventeen States had racial segregation legislation,

when the question came once more to the Supreme Court. To the surprise of the Southern

States, the Court concluded that in the field of public education the doctrine of separate but

82 Plessy v Ferguson, 163 U.S. 537 (1896).

23

equal has no place. Separate educational facilities were inherently unequal and constituted,

as such, a violation of the Fourteenth Amendment.83

The State attack on the Supreme Court was swift and aggressive, with the judgment being

vehemently decried in the South. The Supreme Court ha[d] run into a storm of protest, as

severe as it has ever encountered.

84 Feelings ran so high that after decades of relative

constitutional peace, five Southern States revived the ideas of interposition and nullification.85

In February 1956, the Virginia legislature thus adopted a Resolution entitled Interposing the

sovereignty of Virginia against encroachment upon the reserved powers of this State, and

appealing to sister states to resolve a question of contested power.86

83 Brown v Board of Education of Topeka (supra n.81), 495. The Segregation cases led to the most extensive presentation of historical materials ever made to the Court (A. M. Bickel, Original Understanding and the Segregation Decision (1955-6) 69 Harvard Law Review 1 at 6). Famously, Chief Justice Warren held the historical evidence inconclusive (cf. Brown, 489). 84 C. Fairman, The Supreme Court 1955 Term (1956-7) 70 Harvard Law Review 83. 85 Various State resolutions (extracts) can be found in A.S. Miller & R. F. Howell, Interposition, Nullification and the Delicate Division of Power in a Federal System (1956) 5 Journal of Public Law 2. 86 The text can be found in: Anonymous, Interposition vs. Judicial Power (1956) 1 Race Relations Law Reporter 445 et seq.

It read as follows:

That the General Assembly of Virginia expresses its rm resolution to maintain and to defend the

Constitution of the United States, and the Constitution of this State, against every attempt, whether

foreign or domestic to undermine the dual structure of this Union, and to destroy those fundamental

principles embodied in our basic law, by which the delegated powers of the Federal Government, and the

reserved powers of the respective States have long been protected and assured.That this Assembly

explicitly declares that the powers of the Federal Government result solely from the compact to which the

Sates are parties, and that the powers of the Federal Government, in all its branches and agencies, are

limited by the terms of the instrument creating the compact, and by the plain sense and intention of its

provisions. ()

That by its decision of May 17, 1954, the school cases, the Supreme Court of the United States placed

upon the Constitution an interpretation, having the effect of an amendment thereto, which interpretation

Virginia emphatically disapproved. That the State of Virginia did not agree, in ratifying the Fourteenth

Amendment, nor did other States ratifying the Fourteenth Amendment agree, that the power to operate

racially separate schools was to be prohibited to them thereby; and as evidence of such understanding of

the terms of the amendment, and its plain sense and intention, the General Assembly of Virginia notes

that the very Congress which proposed the Fourteenth Amendment for ratification established separate

schools in the District of Columbia

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[The] declaration upon the part of the Supreme Court of the United States constitutes a deliberate,

palpable, and dangerous attempt by the court itself to usurp the amendatory power that lies solely with no

fewer than three-fourths of the States. That the General Assembly of Virginia, mindful of the resolution it

adopted on December 21, 1798, and cognizant of similar resolutions adopted on like occasions in other

States, both North and South, again asserts this fundamental principle: That whenever the Federal Government

attempts a deliberate, palpable and dangerous exercise of powers not granted it, the States who are parties to the compact have

the right, and are in duty bound, to interpose for arresting the progress of the evil, and for reserving the authorities, rights and

liberties appertaining to them That failure on the part of this State thus to assert her clearly reserved powers

would be construed as tacit consent to the surrender thereof and that such submissive acquiescence to

palpable, deliberate and dangerous encroachments upon one power would in the end lead to the surrender

of all powers, and inevitably to the obliteration of the sovereignty of the States contrary to the sacred

compact by which this Union of States was created.87

The Virginia Resolution reinstated the idea of the Constitution as a compact concluded by

sovereign States. The powers of the Federal Government were delegated and enumerated

powers; thus, the Supreme Court an agent of the Federal government could not be the

exclusive and ultimate arbiter of constitutional conflicts. It followed from the contractual

nature of the Constitution, that the States had the right to interpose. The 1956 Virginia

Resolution here borrowed from the antebellum tradition and its famous 1798 predecessor. To

underline the constitutional continuity with the Principles of 98, it even adopted a Report

on the Doctrine of Interposition: Its History and Application.

88

In following humbly the example of Mr. Madison in 1799, the Report offered a detailed

commentary of the constitutional philosophy underlying the legislative protest.

89

87 Ibid., Resolutions 1-2, 5-6, 8 and 10 (emphasis added). 88 Senate of Virginia, The Doctrine of Interposition: Its History and Application A Report on Senate Joint Resolution 3 (Commonwealth of Virginia, Division of Purchase and Printing, Richmond 1957). 89 This is how the Report itself summed up its elementary assumptions: The right of a State to interpose its sovereign powers against encroachment by the Federal Government rests upon certain assumptions in history and law. These are: First, that when the colonies dissolved the political bands that had connected them with Great Britain, they became precisely what they declared themselves to be: Free and Independent States. Second, that in uniting under the Articles of Confederation, and later under the Constitution of 1787, the States acted as separate, individual States. Third, that the people of the States, in agreeing to the constitutional compact have delegated only certain enumerated powers to the general government, and have reserved all other powers to their States or to themselves. Fourth, that when the general government usurps powers not delegated, the States have an inalienable right to interpose their sovereign powers so as t arrest the progress of the evil. Fifth, that the question of such encroachment cannot properly be decided by an agent of the general government itself, but can only be decided by the States themselves as parties to the compact. (Ibid, 5.)

The Union

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was created by the people of the separate States, acing separately as States.90 [T]he Sates

formed the constitutional compact as an agreement among themselves as individual sovereign

political entities[.]On the basis of this constitutional compact, powers were delegated to the

Federal Government. Conceding that the Supreme Court had authority to interpret the

Constitution, what was important was that boundary line and there must be some boundary

line capable of being fixed and defined by an agency other than the court itself where mere

interpretation ceases and substantive amendment begins.91 If it be left to the court, alone

and uncontrolled, to establish this line, then there is no line[.]It followed that the States, who

under Article V alone have the power to amend the Constitution, also must have the power to

contest effectively an attempted amendment by judicial construction. Where did this line

between interpretation and amendment lie? According to Virginia, the Court could not

strike at the most intimate social and political institutions of the States and ignore the

original understanding or settled constitutional practice.92

What constitutional remedy did the States enjoy, when the federal government had acted ultra

vires? [E]very State has a clear constitutional right as a party to the compact to allege an

infraction of the compact. To allege is not to prove; to allege is not to nullify; to allege is not

to threaten armed resistance. It is simply to charge an infraction. The 1956 Virginia

Resolution thus would not recommend positive defiance, but assert[ed] the right and duty

of interposition against federal usurpation for one purpose only for arresting the progress of

evil. The effort is to bring enforcement of the courts challenged mandates to a pause, to an

intermediate position where matters may be held for a time in statu quo until opportunity may

be had for careful consideration of Virginias appeal. Our appeal is explicitly directed to our

sister States: it is generally directed to public opinion.

93 In essence: the constitutional remedy

was interposition and not (unilateral) nullification.94

90 Ibid., 6. 91 Ibid., 10-1. 92 Ibid., 14 and 17.

93 Ibid., 20. One expression of (Southern) public opinion was the Southern Manifesto (1956), in which Southern members of Congress denounced the federal abuse of power. The Manifesto read: We regard the decision of the Supreme Court in the school cases as clear abuse of judicial power. It climaxes a trend in which the Federal judiciary under-taking to legislate, in derogation of the authority of Congress, and to encroach upon the reserved rights of the states and the people. Even though we constitute a minority in the present Congress, we have full faith that a majority of the American people believe in the dual system of government which has enabled us to achieve our greatness and will in time demand that the reserved rights of the states and of the

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This was, undoubtedly, the constitutional theory of 1798. But had not the constitutional

context changed after the Civil War? We have inquired whether the melancholy events of

1861-65, and the subsequent changes made to the Constitution, have in any wise affected the

fundamental principles asserted to be still embodied in our basic law. Virginia did not think

so. Its resolutions expounded in 1956 as they did in 1798, the true nature of the Federal

Government and the relationship of the States to it.95 Yet, Virginias 1956 Resolution was

soon to encounter the national reaction. After continued defiance in the Southern States, the

constitutional conflict over Brown was resolved by the threat of arms. President Eisenhower

sent federal troops to enforce the judicial order. Southern protest would thereafter be

channelled into proposals to amend the Constitution.96 The most daring proposal in this

respect was the suggestion to create a new Court of the Union, which would have

jurisdiction on federal questions and empowered to overrule the Supreme Court.97 The

proposal unsurprisingly failed.98

Constitutional pluralism has not been confined to incommensurable positions between the

States and the Union. Different constitutional visions may even be found within the federal

B. Split Opinions: Constitutional Pluralism in the Supreme Court

people be made secure against judicial usurpation. (Extracts of the Southern Manifesto can be found in F.D. Drake & L.R. Nelson (eds.), States Rights and American Federalism (Greenwood Press, Westport 1999), 203-5.) 94 By contrasts, Georgias Interposition Resolution of 9 March 1956 declared [t]hat said decisions and orders of the Supreme Court of the United States relating to separation of the races in the public institutions of a State as announced and promulgated by said court in May 17, 1954, and May 31, 1955, are null, void and of no force or effect. (Extracts of the Georgia Resolution can be found in: H. O. Reid, The Supreme Court Decision and Interposition (1956) 25 Journal of Negro Education 109 at 114.) 95 Senate of Virginia, The Doctrine of Interposition (supra n.88), 6. 96 P. L. Hanes, The Proposed Constitutional Amendments: A New Definition of Federalism (1963) 12 Journal of Public Law 448. 97 Section 1 of the proposed amendment read: Upon demand of the legislatures of five states, no two of which shall share a common boundary, made within two years after the rendition of any judgment of the Supreme Court relating to the rights reserved to the states or to the people by this Constitution, such judgment shall be reviewed by a Court composed o