The Philadelphia convention of 1787 looms enormous in many accounts of U.S. constitutional history, serving as the set piece in which various and muddled worldviews, theories, interests, and allegiances gelled into a coherent science and structure of politics. The Convention thus becomes time zero in the chronology of U.S. political and constitutional development, a finite and forward-looking first moment defining, for good or ill, the terms according which subsequent debates regarding the nature of U S. government would be conducted.
1. See, for example, U.S. Term Limits, Inc. v. Thornton, 514 U.S. 779, 838 (1995) (Kennedy, J., concurring): “Federalism was our Nation's own discovery. The Framers split the atom of sovereignty. It was the genius of their idea that our citizens would have two political capacities, one state and one federal, each protected by incursion from the other.”
2. See, for example, Greene, Jack P., Peripheries and Center: Constitutional Development in the Extended Polities of the British Empire and the United States, 1607–1788 (Athens: University of Georgia Press, 1986); McLaughlin, Andrew C., A Constitutional History of the United States (New York: D. Appleton-Century Co., 1935); McLaughlin, Andrew C., “The Background of American Federalism,” American Political Science Review 12 (1918): 215–40.
3. Greene, Peripheries and Center, 3.
4. For “composite empire” language, see McLaughlin, “Background of American Federalism,” 216.
5. Greene, Jack P., Negotiated Authorities: Essays in Colonial Political and Constitutional History (Charlottesville: University of Virginia Press, 1994).
6. McLaughlin, “Background of American Federalism,” 216.
7. I am grateful to David Armitage for suggesting the experience-arguments distinction.
8. Hulsebosch, Daniel J., Constituting Empire: New York and the Transformation of Constitutionalism in the Atlantic World, 1664–1830 (Chapel Hill: University of North Carolina Press, 2005), 7; Bilder, Mary Sarah, The Transatlantic Constitution: Colonial Legal Culture and the Empire (Cambridge, Mass.: Harvard University Press 2004), 4, 7.
9. Bailyn, Bernard, The Ideological Origins of the American Revolution (Cambridge, Mass.: Belknap, 1967); Wood, Gordon S., The Creation of the American Republic, 1776–1787 (Chapel Hill: University of North Carolina Press, 1969).
10. Quotes from, respectively, Bailyn, Ideological Origins, xiv (1992 ed.); Wood, Creation, viii (1972 ed.). Bailyn was himself responding to the work of Charles Beard, which had emphasized the role of economic, social, and other material factors in bringing about first the Revolution and then the Constitutional Convention; see Charles A. Beard, An Economic Interpretation of the Constitution of the United States (New York: Macmillan, 1913).
11. On the relationship between language and institutions in intellectual and political history, see Skinner, Quentin, “Meaning and Understanding in the History of Ideas,” in Meaning and Context: Quentin Skinner and His Critics, ed. Tully, James (Princeton, N.J.: Princeton University Press, 1988).
12. Edling, Max M., A Revolution in Favor of Government: Origins of the U.S. Constitution and the Making of the American State (New York: Oxford University Press, 2003), 219; Hendrickson, David C., Peace Pact: The Lost World of the American Founding (Lawrence: University Press of Kansas, 2003), ix.
13. Common Sense [Bland, Richard], The Colonel Dismounted: or the Rector Vindicated. In a Letter addressed to His Reverence: Containing a Dissertation upon the Constitution of the Colony (Williamsburg, Va.: Joseph Royle, 1764), 22–23.
14. Armitage, David, The Ideological Origins of the British Empire (Cambridge: Cambridge University Press, 2000), 5.
15. Cover, Robert M., “The Uses of Jurisdictional Redundancy: Interest, Ideology, and Innovation,” William and Mary Law Review 22 (1981): 639–82. On the concept of imperium in imperio, see Hulsebosch, Daniel J., “Imperia in Imperio: The Multiple Constitutions of Empire in New York, 1750–1777,” Law and History Review 16 (1998): 319–79.
16. Articles of Confederation, art. 2; art. 9 (1777).
17. Ibid., art. 2; Jensen, Merrill, The Articles of Confederation: An Interpretation of the Social-Constitutional History of the American Revolution, 1774–1781 (Madison: University of Wisconsin Press, 1940), 164 (quoting Adams).
18. Editorial Note, The Papers of James Madison, ed. Robert A. Rutland et al. (Chicago: University of Chicago Press, 1975), 9:3–4 (hereafter PJM).
19. Madison to Jefferson, March 18, 1786, PJM, 8:501. Madison's devotion to his studies had always been remarkable: Upon completion of his bachelor's degree at Princeton in two years, Madison was forced to remain in New Jersey an additional year in order to regain his strength while continuing with private studies. Despite taking this care, however, when Madison returned to Montpelier in April 1772, he suffered something like a nervous breakdown. At least one historian posits that the matriculation decision a few years later of another founder, Alexander Hamilton, may have been dictated by Princeton president John Witherspoon's desire to avoid a repeat of Madison's experience, which led Witherspoon to deny Hamilton's request to proceed through the curriculum at his own (rapid) pace, and he consequently sent Hamilton north to King's College in New York; see Chernow, Ron, Alexander Hamilton (New York: Penguin, 2004), 48; see also Ketcham, Ralph, James Madison: A Biography (Charlottesville: University of Virginia Press, 1990), 51–52.
20. Ketcham, James Madison, 184.
22. “Notes on Ancient and Modern Confederacies,” PJM, 9:8, 22.
23. Ibid., 22.
24. Jack Rakove describes Madison's revelation thus: “Madison now understood that any federal system based on the voluntary compliance of the states was likely to fail, for three reasons that could be formulated almost as theoretical postulates. First, because states had different interests, it was unlikely that they would have an equal stake in carrying out every federal policy. Second, in every state there would be politicians—‘courtiers of popularity,’ Madison called them—who would always hope to advance their own interests by criticizing national measures. Third, and most important, even where the states did share common interests, mutual doubts as to whether other states would comply with national decisions would encourage shirking” (Jack N. Rakove, James Madison and the Creation of the American Republic, 2nd ed. [New York: Longman, 2002], 52–53).
25. Madison to Randolph, February 25, 1787, PJM, 9:299.
26. Federalist 18 focused on the ancient confederacies, especially the Amphyctionic and Achaean leagues; Federalist 19 discussed contemporary confederacies, including the Holy Roman Empire, Poland, and the Swiss confederacy; and Federalist 20 considered the contemporary United Netherlands (The Federalist, ed. Jacob E. Cooke [Middletown, Conn.: Wesleyan University Press, 1961]).
27. Madison had arrived in Philadelphia on May 5, in time for the Convention's first scheduled meeting on May 14, but the lack of a quorum postponed the initial session until May 25. Madison reported these events to Jefferson on May 15, noting, “The number as yet assembled is small… . There is a prospect of a pretty full meeting on the whole, though there is less punctuality than was to be wished. Of this the late bad weather has been the principal cause” (Madison to Jefferson, May 15, 1787, PJM, 9:415).
28. Madison to Jefferson, March 19, 1787, PJM, 9:318. As Larry Kramer points out, the phrase “in all cases whatsoever” echoed the language of the hated Declaratory Act of 1766 (Kramer, Larry D., “Madison's Audience,” Harvard Law Review 112 : 628). Kramer notes that “Madison could not have picked language more likely to arouse anxieties about centralized authority.”
29. Scholars have employed a variety of terms to refer to Madison's proposed negative, including “the negative on state laws,” “the federal veto,” and “the federal negative.” In his intellectual biography of Madison, Lance Banning uses the latter two phrases; see Banning, The Sacred Fire of Liberty, 117, 188. This article will use the term “federal negative.”
30. Adair, Douglass, “James Madison's Autobiography,” William and Mary Quarterly, 3rd ser., 2 (1945): 202.
31. Many scholars who have studied Madison's federal negative have emphasized its role as a weapon against majoritarian tyranny, and have therefore viewed it as inextricably linked with Madison's discussion in Federalist 10 of the problem of faction and the consequent need for a large republic; see, for example, Kramer, “Madison's Audience”; Rakove, Original Meanings, 51, 197. These and other scholars have viewed it as evidence of a creeping nationalist, even consolidationist, tendency in Madison's thought; see, for example, Hobson, Charles F., “The Negative on State Laws: James Madison, the Constitution, and the Crisis of Republican Government,” in The Federal Constitution, ed. Onuf, Peter S. (New York: Garland, 1991), 258; McDonald, Forrest, States' Rights and the Union: Imperium in Imperio (Lawrence: University of Kansas Press, 2000), 18; Rakove, Original Meanings, 51. Banning disagrees profoundly with the latter position, saying that one of his own purposes is “to utterly deny—in the face of very old and very influential emphases on the reactionary character of constitutional reform—that there was any hint of such a counterrevolutionary attitude in Madison himself.” Banning also notes that Hobson later retreated somewhat from his stance; see Banning, Sacred Fire of Liberty, 127, 442n22. Although this debate is obviously significant, I will focus on the negative in the context of the transition from imperial to federal modes of authority.
32. Madison to Jefferson, March 19, 1787, PJM, 9:318.
33. “Vices of the Political System of the United States,” April 1787, in PJM, 9:348–57.
34. Several historians have discussed the influence of imperial practice on Madison's thinking about the federal negative. Most notable are Banning, Sacred Fire of Liberty, 118; Bilder, Transatlantic Constitution, 191–92; McLaughlin, Andrew C., The Foundations of American Constitutionalism (New York: New York University Press, 1932), 153; Zuckert, Michael P., “A System without Precedent: Federalism in the American Constitution,” in The Framing and Ratification of the Constitution, ed. Levy, Leonard W. and Mahoney, Dennis J. (New York: Macmillan, 1987), 144–45; Rakove, Jack N., “Making a Hash of Sovereignty, Part I,” Green Bag 2nd ser., 2 (1998): 40–41.
35. Madison to Randolph, April 8, 1787, PJM, 9:370; Madison to Washington, April 16, 1787, PJM, 9:383.
36. Blackstone defined the Privy Council as “the principal council belonging to the king” and describes its composition as follows: “The king's will is the sole constituent of a privy counsellor; and this also regulates their number”; see Blackstone, William, Commentaries on the Laws of England (1765–69; reprint, with an introduction by Stanley N. Katz, Chicago: University of Chicago Press, 1979), 1:222–23; see also Black's Law Dictionary, 6th ed., s.v. “Privy Council”: “In England, the principal council of the sovereign, composed of the cabinet ministers, and other persons chosen by the king or queen as privy councillors.”
37. Schlesinger, Arthur Meier, “Colonial Appeals to the Privy Council,” [parts 1 and 2], Political Science Quarterly 28 (2) (1913):279–97, and 28 (3) (1913): 433–50. My discussion of the hierarchical underpinnings of colonial and early American appellate review is informed by Philip Hamburger's discussion of the “hierarchical assumptions” that undergirded seventeenth- and eighteenth-century understandings of superior and inferior law; see Hamburger, Philip, “Law and Judicial Duty,” George Washington Law Review 72 (2003): 9–12.
38. Smith, Joseph Henry, Appeals to the Privy Council From the American Plantations (New York: Columbia University Press, 1950; reprint, New York: Octagon, 1965).
39. Technically, the forum for such appeals was a specially designated committee of the Privy Council. From 1675 to 1696, that committee was variously nominated the Committee of Trade and Foreign Plantations and subsequently the Committee for Trade and Plantations; the members of both entities were also known as the Lords Committee of Trade and Plantations. Between 1675 and 1696, the committee fluctuated in size from as few as twelve to as many as thirty-three members, occasionally comprising the entire membership of the Privy Council. A 1696 act of William III reorganized the committee and renamed it the Board of Trade and the Committee for Hearing Appeals from the Plantations; see Smith, Appeals to the Privy Council, 71–72, 132–38; see also Goebel, Julius Jr., Antecedents and Beginnings to 1801, Vol. 1, The Oliver Wendell Holmes Devise History of the Supreme Court of the United States, ed. Freund, Paul A. (New York: Macmillan, 1971), 60–65. Smith notes that “all these committees were conciliar derivatives—their decisions gained force only through Orders in Council issued by the Council Board itself”; see Smith, Appeals to the Privy Council, 72. I therefore follow the usage of Smith and others and employ the general phrase “Privy Council” to refer to the body responsible for hearing appeals from the colonies and evaluating colonial acts for conformity to the laws of England.
40. Smith, Appeals to the Privy Council, 464–523. The doctrine of the king's dominions was a holdover from the Middle Ages, when English kings held lands outside the realm, such as Aquitaine or Normandy. By the time English colonization of the New World began in 1607, however, these overseas holdings had dwindled to the Channel Islands, which alone possessed the standing to claim a right of appeal to the Crown; see Goebel, Antecedents and Beginnings, 36.
41. Bilder, Transatlantic Constitution, 1–4. Cf. Adams, Randolph G., Political Ideas of the American Revolution: Britannic-American Contributions to the Problem of Imperial Organization, 1765 to 1775 (New York: Barnes & Noble, 1958; 1919), 117–18 (discussing eighteenth-century conceptions of the repugnancy principle).
42. See, for example, Bilder, Transatlantic Constitution, 6; Hamburger, “Law and Judicial Duty.”
43. In modern jurisprudence, of course, the only way to challenge a law's operation in all situations and with respect to all parties is to mount a facial challenge: that is, a challenge to the statute on its face, as opposed to an as-applied challenge, which takes on the statute only as it is applied to a particular type of party or set of facts. In both cases, however, an aggrieved party must bring the challenge; courts will not take up the issue of their own volition, as such an act would violate the Constitution's case or controversy requirement; see U.S. Constitution, art. 3, sec. 2. Because the application of facial challenges is so broad, courts have erected substantial barriers to their successful prosecution, rendering them relatively rare. Examples are the Supreme Court's holding in National Endowment for the Arts v. Finley, 524 U.S. 569, 580 (1998): “Facial invalidation is, manifestly, strong medicine that has been employed by the Court sparingly and only as a last resort” (internal quotation marks omitted); United States v. Salerno, 481 U.S. 739, 745 (1987): “A facial challenge to a legislative Act is … the most difficult challenge to mount successfully, since the challenger must establish that no set of circumstances exists under which the Act would be valid.” On this distinction generally, see Fallon, Richard H. Jr., “As-Applied and Facial Challenges and Third-Party Standing,” Harvard Law Review 113 (2000): 1321–70.
44. Goebel refers to such practices as “administrative control of colony legislation,” but Smith terms them “legislative review” (Goebel, Antecedents and Beginnings, 60); see also Smith, Appeals to the Privy Council, 523.
45. The ur-text on this subject is McIlwain, Charles H., The High Court of Parliament: An Historical Essay on the Boundaries Between Legislation and Adjudication (New Haven, Conn.: Yale University Press, 1910). More recent interpretations of this issue in the American context include Black, Barbara A., “The Constitution of Empire: The Case for the Colonists,” University of Pennsylvania Law Review 124 (1976): 1157–1211.
46. For a discussion of the link between the development of bicameral legislatures in the colonies and the judicial-legislative distinction, see Howe, Mark DeWolfe and Eaton, Louis F. Jr., “The Supreme Judicial Power in the Colony of Massachusetts Bay,” New England Quarterly 20 (1947): 291–316.
47. At the risk of spoiling the ending of my story, I should here point out that the case or controversy requirement ultimately found its way into the Constitution in order to prevent just such practices as the Privy Council's ex ante legislative review from taking root in the federal courts (U.S. Constitution, art. 3, sec. 2). The alternative to a case or controversy standard is to permit courts to issue advisory opinions—that is, judicial statements as to whether a law is valid without an aggrieved party's having first challenged the law. For more on this distinction and the rationale behind it, see Chemerinsky, Erwin, Federal Jurisdiction, 4th ed. (New York: Aspen, 2003), 44–56.
48. See Smith, Appeals to the Privy Council, 77–78 (discussing the early precedents of the Channel Islands), 79–82 (discussing Virginia and New Hampshire). In both royal and proprietary colonies, the local assembly was subject to an additional level of imperial oversight in the form of the governor's veto; see Bailyn, Bernard, The Origins of American Politics (New York: Knopf, 1968), 67.
49. See Smith, Appeals to the Privy Council, 45–46 (discussing “the recalcitrance of Massachusetts Bay” in repeatedly challenging the royal power to hear appeals from the colony during the first half of the seventeenth century), 51–54 (canvassing Connecticut, Rhode Island, and the Carolinas).
50. Ibid., 85–86 (discussing New Jersey and Maryland).
51. See McFarlane, Anthony, The British in the Americas, 1480–1815 (London: Longman, 1992), 198; see also Goebel, Appeals to the Privy Council, 40, 61–65.
52. Schlesinger, “Colonial Appeals to the Privy Council, II,” 437–38, 446. Schlesinger notes that after 1734 or 1735, the Privy Council records drop the phrase “for Appeals” and refer to the decision-making body simply as “the Committee” (ibid., 439).
53. The breadth of the Privy Council's reach prompted Charles M. Andrews to emphasize the relationship between disallowance and the royal prerogative. Andrews described disallowance as “an executive rather than a legislative act” because it was “performed not by the king but by the Council as his executive agent.” The power of disallowance was thus “an exercise of the royal prerogative, an expression of the king's supreme authority in the enacting of laws by inferior law-making bodies, whose right to make laws at all rested on the king's will.” Andrews concluded, therefore, that disallowance was “not a veto but an act of regulation and control” (Andrews, Charles M., “The Royal Disallowance,” Proceedings of the American Antiquarian Society 24 : 343).
54. Here Goebel and Smith differ in their interpretations. While Goebel suggests that the Privy Council in its judicial capacity declared void ab initio multiple, albeit very few, colonial acts, Smith states that there was only one such case: Winthrop v. Lechmere (P.C. 1728), reprinted in Public Records of the Colony of Connecticut (Hartford, Conn.: Lockwood & Brainard Co., 1873) 7:578, in which a 1699 Connecticut intestacy law was held void as contrary to English law and the colonial charter. The two scholars agree, however, that the mechanism of voiding a colonial statute ab initio was used when the Privy Council was acting both in its legislative and its judicial capacities; see Goebel, Antecedents and Beginnings, 72–73; but also see Smith, Appeals to the Privy Council, 537.
55. Goebel, Antecedents and Beginnings, 72.
56. Goebel distinguishes thus between declarations of nullity ab initio and disallowance: “A declaration of nullity was something close to catastrophic, for everything that might have been done under [the act] was rendered nugatory” (ibid., 69).
57. Goebel does note, however, that some colonial acts included a suspending clause explicitly stating that the act was not final, and therefore that no rights and duties could be created pursuant to it, until it was affirmatively validated by the Privy Council. The Crown pressed for such clauses as a means of emphasizing the incompleteness of colonial legislative authority. Goebel states, however, that many—perhaps the majority—of colonial acts went into effect with no ruling one way or the other by metropolitan authorities. Thus, he concludes that “whatever the theory, the Crown was practically not an indispensable party” (ibid., 68).
58. In other words, rights could vest pursuant to an act even if that act was subsequently disallowed, but no rights could vest pursuant to an act that was vetoed and thus never took effect (ibid., 68–72).
59. Russell, Elmer Beecher, The Review of American Colonial Legislation by the King in Council (New York: Columbia University Press, 1915), 221. Forrest McDonald gives a similar number, reporting that the Board of Trade disallowed 469 of the 8,563 mainland colonial acts that it reviewed, or 5.47 percent (McDonald, States' Rights and the Union, 2).
60. See Smith, Appeals to the Privy Council, 138; accord Bilder, Transatlantic Constitution, 74.
61. The relevant language appeared in the Grant of the Province of Maine from Charles II to the Duke of York and reserved to the Crown “ye receiving hearing and determining of the appeal and appeales of all or any person or persons, of in or belonging to ye territoryes or islands aforesaid in or touching any judgment or sentence to be there made or given” (Grant of the Province of Maine (1664), in Thorpe, Francis Newton, The Federal and State Constitutions, Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming the United States of America, Compiled and Edited Under the Act of Congress of June 30, 1906 [Washington, D.C.: GPO, 1909], 3:1638–39); see also Smith, Appeals to the Privy Council, 53.
62. See Goebel, Antecedents and Beginnings, 40–41. Opponents of this expanded royal power, among the most vocal of which were Connecticut and Massachusetts, countered by arguing that the Crown possessed appellate jurisdiction only to the extent that such jurisdiction was expressly reserved by charter. Absent a specific reservation of appellate power to the Crown as was found, for example, in the charter of the proprietary colony of Pennsylvania (“Saving and reserving to Us, Our heires and Successors, the receiving, heareing, and determining of the appeale and appeales of all or any Person or Persons, of, in, or belonging to the Territories aforesaid, or touching any Judgement to bee there made or given”), opponents of royal appellate power argued that Privy Council had no business reviewing the decisions of colonial courts (Charter for the Province of Pennsylvania (1691), in Thorpe, Federal and State Constitutions, 5:3038). Massachusetts judges apparently felt little compunction to assist parties in bringing appeals—those who sought appeal from the decisions of the colony's highest court were often frustrated by the court's refusal to provide a written record or to order execution of its final judgment; see Nelson, William E., Americanization of the Common Law: The Impact of Legal Change on Massachusetts Society, 1760–1830 (Athens: University of Georgia Press, 1994), 16. Crown officials strenuously resisted such interpretations, fueling a dispute that lasted well into the eighteenth century.
63. See Bailyn, Origins of American Politics, 67.
65. 7 and 8 Wm. III, c. 22 .
66. See Smith, Appeals to the Privy Council, 525. Rhode Island was an exception: the terms of its charter did not require acts of the colonial assembly to be reviewed by the Privy Council before taking effect; see Bilder, Transatlantic Constitution, 55–56.
67. Massachusetts Bay Charter (1629), in Thorpe, Federal and State Constitutions, 3:1857 (emphasis added). The subsequent Massachusetts charter of 1691 provided that colonial acts would take effect if the Crown did not take contrary action within a set time period; see Goebel, Antecedents and Beginnings, 66.
68. 10 Hen. VII, c. 4 (1485); repealed 21 & 22 Geo. III, c. 47 (1781).
69. See Bilder, Transatlantic Constitution, 54–55; Goebel, Antecedents and Beginnings, 61–65.
70. Madison to Washington, April 16, 1787, PJM, 9:383–84.
71. Madison to Washington, April 16, 1787, PJM, 9:383.
72. See, for example, Smith, Appeals to the Privy Council; see also Black, “Constitution of Empire”; McIlwain, High Court of Parliament.
73. See Zuckert, “System without Precedent,” 144.
74. Banning, Sacred Fire of Liberty, 126–27.
75. Madison to Washington, April 16, 1787, PJM, 9:384.
76. For example, the Holy Roman Empire, a loose confederation in Madison's own time, exercised authority over imperial legislation, treaties, and declarations of war; see “Notes on Ancient and Modern Confederacies,” PJM, 9:19. Several decades previously, John Locke had listed such powers among the “federative powers” of the commonwealth, which he defined as relating to “the management of the security and interest of the public without” (Locke, John, Second Treatise of Government [1690; reprint, with an introduction by C. B. Macpherson, Indianapolis, Ind.: Hackett, 1980], 77).
77. Madison to Washington, April 16, 1787, PJM, 9:384.
78. See Hirschman, Albert O., The Passions and the Interests: Political Arguments for Capitalism Before Its Triumph, rev. ed. (Princeton, N.J.: Princeton University Press, 1997), 47.
79. See Madison to Jefferson, March 19, 1787, PJM, 9:318 (“oppressing” and “thwarting and molesting”); Madison to Washington, April 16, 1787, PJM 9:384 (“invad[ing]” and “violat[ing]”). Here I differ markedly from Banning, who argues that “Madison's reference to a ‘dispassionate umpire’ over contending interests applies specifically and solely to a federal referee over contentions within individual states,” and that therefore “he does not envision a federal legislature capable of dispassionately supervising national conflicts of interest” (Banning, Sacred Fire of Liberty, 445n52). In both the March 19 letter to Jefferson and the April 16 letter to Washington, however, Madison seems clearly to contemplate that the federal negative would apply to inter- as well as intrastate conflicts.
80. Grayson to Short, April 16, 1787, in Letters of Members of the Continental Congress, 8:581.
81. See Editorial Note, PJM, 10:12–13.
82. “The Virginia Plan,” PJM, 10:16 (emphasis added). Interestingly, the scope of the negative as set forth in the Virginia Plan was narrower than Madison's earlier formulations had contemplated. Although the plan's language referred to laws “contravening in the opinion of the National Legislature the articles of Union,” Madison's proposal in his earlier letter to Jefferson had given the central government broader power to negative “in all cases whatsoever” (Madison to Jefferson, March 19, 1787, PJM, 9:318). Madison did not endorse this alteration, as will be discussed further below.
83. Farrand, Max, The Records of the Federal Convention of 1787 (New Haven, Conn.: Yale University Press, 1966), 1:xvi, 54 (brackets showing Madison's revisions of ca. 1821 omitted). Farrand's authoritative four-volume Records of the Federal Convention includes the notes taken by several delegates to the Convention but consistently treats Madison's as the most accurate and comprehensive.
84. “Virginia Plan,” PJM, 10:16.
85. The Philadelphia convention was not the first instance in which a council of revision was considered. The New York constitution of 1777 featured such a council, and the Virginia legislature had contemplated adopting a similar measure in 1782–83; see “Virginia Plan,” PJM, 10:17n3; see also Street, Alfred B., The Council of Revision of the State of New York (Albany, N.Y.: William Gould, 1859); Wood, Creation of the American Republic, 435–36, 455.
86. Rakove, James Madison and the Creation of the American Republic, 73. Madison's uneasy attitude toward legislative power manifested itself most strongly in his Federalist essays; see Federalist 48 (Cooke), 334: “Where the legislative power is exercised by an assembly, which is inspired by a supposed influence over the people with an intrepid confidence for its own strength … it is against the enterprising ambition of this department, that the people ought to indulge all their jealousy and exhaust all their precautions.”
87. Richard Henry Lee had made a similar point in a May 1787 letter to George Mason: “Do you not think, sir, that it ought to be declared, by the new system, that any state act of legislation that shall contravene, or oppose, the authorized acts of Congress, or interfere with the expressed rights of that body, shall be ipso facto void, and of no force whatsoever” (Lee to Mason, May 15, 1787, in The Letters of Richard Henry Lee, ed. James Curtis Ballagh [New York: Da Capo, 1970], 2:422). Lee's belief that unconstitutional state laws were void ab initio seems to have led him to a different conclusion from Madison's, however. Both Lee and Mason ultimately opposed the Constitution on the ground that it granted too much power to the central government. From this result, it is possible to interpolate that Lee thought that unconstitutional state laws were by definition void and therefore that no decree of invalidity was necessary from Congress.
88. This distinction between structural and substantive approaches to authority is conceptually similar to Daniel Hulsebosch's distinction between “jurisdictional” and “jurisprudential” visions of law. According to the former, as articulated by Sir Edward Coke, “the common law was inseparable from the institutions that applied, practiced, and taught the common law.” A jurisprudential notion of law, in contrast, “refers to a rationally organized body of rules and principles defined primarily in reference to each other, not to the remedies and personnel enforcing them” (Hulsebosch, Daniel J., “The Ancient Constitution and the Expanding Empire: Sir Edward Coke's British Jurisprudence,” Law and History Review 21 : 445–46).
89. Farrand, Records, 1:164.
90. See Hobson, “Negative on State Laws,” 266; Matthews, Marty D., Forgotten Founder: The Life and Times of Charles Pinckney (Columbia: University of South Carolina Press, 2004), 40, 45.
91. Charles Hobson speculates that the limited negative outlined in the Virginia Plan was the work of Randolph and George Mason; see Hobson, “Negative on State Laws,” 266.
92. Madison Chronology, PJM, 10:xxv; Farrand, Records, 1:168, Madison's Notes, June 8, 1787.
93. Farrand, Records, 1:164.
94. Michael Zuckert makes the connection to encroachments explicit, noting that Madison “conceived the Congress of the general government playing the role in the American system that the king played in the British empire through his veto power over the laws of the individual legislatures of the empire. That royal veto could be and in fact was used to prevent encroachments of the sort Madison feared” (Zuckert, “System without Precedent,” 145).
95. Farrand, Records, 1:165, Madison's Notes, June 8, 1787.
96. Acrimony over the scope of the royal prerogative dated back to the English Civil War and the Glorious Revolution, see Bailyn, Ideological Origins, 55–93; Morgan, Edmund S., Inventing the People: The Rise of Popular Sovereignty in England and America (New York: Norton, 1988); Pocock, J. G. A., The Ancient Constitution and the Feudal Law: A Study of English Historical Thought in the Seventeenth Century (New York: Norton, 1967), 233–36.
97. Farrand, Records, 1:165–66, Madison's Notes, June 8, 1787.
98. Ibid., 1:172, Rufus King's Notes, June 8, 1787.
99. Ibid., 1:391, Madison's Notes, August 23, 1787. Madison to Jefferson, October 24, 1787, PJM, 10:211.
100. Farrand, Records, 1:164, Madison's Notes, June 8, 1787.
101. Ibid., 2:28, Madison's Notes, July 17, 1787.
102. Michael Zuckert makes a similar point, noting that according to Madison's view, “for the sake of the separateness and independent operation of the different governments, the governments must occasionally operate on each other” (Zuckert, “System without Precedent,” 144).
103. Farrand, Records, 1:168, Madison's Notes, June 8, 1787.
104. Ibid., 1:165, Madison's Notes, June 8, 1787.
105. Ibid., 1:168: The seven states whose delegations voted against the motion were Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina, and Georgia. Voting in favor were Virginia, Pennsylvania, and Massachusetts. The Delaware delegation was split.
106. See Warren, Charles, The Making of the Constitution (1937; reprint, New York: Barnes & Noble, 1967), 317.
107. The editors of the Papers of James Madison refer to June 13 as the “high point” of Madison's influence at the Convention (Editorial Note, PJM, 10:3).
108. See Warren, Making of the Constitution, 317.
109. Farrand, Records, 2:28, Madison's Notes, July 17, 1787. The votes broke down slightly differently from those cast on June 8. Voting in favor of the negative were Massachusetts, Virginia, and North Carolina; voting against were Connecticut, New Jersey, Pennsylvania, Delaware, Maryland, South Carolina, and Georgia. The New York delegation had collapsed shortly before, when Robert Yates and John Lansing had walked out, leaving only Hamilton.
110. Madison's Notes, August 23, 1787, PJM, 2:390–91.
111. Farrand, Records, 3:39, Carrington to Jefferson, June 9, 1787; Farrand, Records, 1:337, Madison's Notes, June 20, 1787.
112. Farrand, Records, 3:180, Luther Martin, “Genuine Information.”
113. Ibid., 3:177. The italics are all Martin's own.
114. Farrand, Records, 2:14, Journal of the Convention, July 16, 1787.
115. Kramer, “Madison's Audience,” 628.
116. Farrand, Records, 1:165, Madison's Notes, June 8, 1787.
117. Ibid., 1:171, King's Notes, June 8, 1787.
118. Ibid., 1:171–72.
119. Ibid., 1:167–68, Madison's Notes, June 8, 1787.
120. Ibid., 1:168, Madison's Notes, June 8, 1787.
121. Declaration of Independence (1776).
122. Farrand Records, 3:203, Luther Martin, “Genuine Information.”
123. Although the Constitution borrowed the executive veto from the English constitution, it must be noted that the last instance of a royal veto was Anne's negative of the Scottish Militia Bill in 1707.
124. Madison's August 28 comments in the Convention made clear that he had not dropped the subject of the federal negative. During debate on a provision prohibiting the states from issuing bills of credit in order to ensure the nation's financial stability, Madison added this coda to his statement supporting the ban: “He conceived however that a negative on the State laws could alone secure the effect. Evasions might and would be devised by the ingenuity of the Legislatures” (Farrand, Records, 2:440, Madison's Notes, August 28, 1787). The records are silent as to his fellow delegates' reactions to this reference to the defeated negative.
125. A few days before the Convention adjourned on September 17, Madison did break his silence concerning the proceedings in a letter to Jefferson. After sketching the outlines of the proposed constitution, he concluded, “I hazard an opinion nevertheless that the plan should it be adopted will neither effectually answer its national object nor prevent the local mischiefs which every where excite disgusts agst the state governments” (Madison to Jefferson, September 6, 1787, PJM, 10:163–64).
126. One vector that brought this news was William Grayson's April 16 letter to Jefferson's secretary William Short; see above text accompanying note 76.
127. Madison to Jefferson, September 6, 1787, PJM, 10:163.
128. Jefferson to Madison, June 20, 1787, PJM, 10:64.
130. Editorial Note, PJM, 10:205. At least one observer of the Convention, however, held out hope until the final days that the delegates would see the wisdom of the negative. On August 22, James McClurg, who had recently left the Virginia delegation, wrote to Madison, “I still have some hope that I shall hear from you of the reinstatement of the Negative—as it is certainly the only means by which the several Legislatures can be restrained from disturbing the order & harmony of the whole; & the Governmt. render'd properly national, & one” (McClurg to Madison, August 22, 1787, PJM, 10:154).
131. Madison to Jefferson, October 24, 1787, PJM, 10:210.
132. Ibid., 10:209–10.
133. Cf. Kramer, “Madison's Audience,” 649–53 (positing the delegates' “insensibility to the theory and agenda” of Madison's negative, especially the vital role that it played in his vision of the extended republic).
134. Jefferson to Madison, December 20, 1787, PJM, 10:338. Jefferson was evidently similarly unmoved by the arguments that another of his correspondents, James Monroe, offered in favor of the negative. The negative, Monroe wrote, “will if [Congress] is well organiz'd, be the best way of introducing uniformity in their proceedings that can be devis'd” (Farrand, Records, 3:65, Monroe to Jefferson, July 27, 1787).
135. Warren, Making of the Constitution, 166.
136. Madison to Trist, December 1831, in Hunt, Gaillard, ed., The Writings of James Madison (New York: G. P. Putnam's Sons, 1910), 9:473.
137. See Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 74–75; Rakove, Original Meanings, 173; Rakove, Jack N., “The Origins of Judicial Review: A Plea for New Contexts,” Stanford Law Review 49 (1997): 1046–47; Sager, Lawrence Gene, “The Supreme Court, 1980 Term—Foreword: Constitutional Limitations on Congress' Authority to Regulate the Jurisdiction of the Federal Courts,” Harvard Law Review 95 (1981): 46–47.
138. Farrand, Records, 2:245.
139. [Dickinson, John], Fragments on the Confederation of the American States (Philadelphia: Dobson, 1787), 18, 20. The essay was reprinted in the Pennsylvania Gazette on June 6, 1787. For the attribution to Dickinson, see the headnotes to Early American Imprints, Series I (Evans), doc. no. 20367.
140. [Dickinson], Fragments on the Confederation, 17.
141. As the modern doctrine of federal preemption demonstrates, Madison was right to fear that a complicated common-law (and, indeed, statutory) thicket would result from a judicial approach to policing the line between federal and state power; see, for example, Drahozal, Christopher R., The Supremacy Clause: A Reference Guide to the United States Constitution (Westport, Conn.: Praeger, 2004), 89–127; Starr, Kenneth et al. , The Law of Preemption: A Report of the Appellate Judges Conference, American Bar Association (Chicago: American Bar Association, 1991); Zimmerman, Joseph F., Federal Preemption: The Silent Revolution (Ames: Iowa State University Press, 1991).
142. See Rakove, Original Meanings, 173. Madison and Wilson also argued that by its own terms, the New Jersey Plan did not adequately provide a means by which the new charter would be established as the supreme law of the land. This was because the plan required not ratification in convention but ratification by the Confederation Congress alone (ibid).
143. Madison to Jefferson, October 24, 1787, PJM, 10:211–12.
144. Paragraph 6 of the Virginia Plan had included a grant of power to Congress “to call forth the force of the Union agst. any member of the Union failing to fulfill its duty under the articles thereof.” By May 31, however, Madison had reconsidered the coercion provision and concluded that it was not the best way to proceed. “A Union of the States containing such an ingredient seemed to provide for its own destruction,” he told the Convention. “The use of force agst. a State, would look more like a declaration of war, than an infliction of punishment, and would probably be considered by the party attacked as a dissolution of all previous compacts by which it might be bound.” Apparently agreeing with Madison, the convention then voted to postpone the coercion measure (Farrand, Records, 1:54, Madison's Notes, May 31, 1787).
Martin Diamond notes that by incorporating a coercion provision, the New Jersey Plan arguably went farther toward consolidation than the Virginia Plan, a point that the Virginia Plan's advocates did not fail to trumpet when they critiqued the New Jersey Plan. The Virginia Plan's supporters “exulted that the pure federalists now admitted, in the New Jersey Plan, how broad the governing powers must be to achieve the blessings of union, and that legislative, executive, and judicial organs of government were needed for their application,” Diamond observes. Madison and others thus “pointed out that the attempt to achieve these things by purely federal means led to Patterson's [sic] ludicrous reliance upon military coercion, upon civil war as the means to secure the blessings of union” (Diamond, Martin, “What the Framers Meant by Federalism,” in A Nation of States: Essays on the American Federal System, ed. Goldwin, Robert A. [Chicago: Rand McNally, 1963], 38).
145. Farrand, Records, 2:28–29, Madison's Notes, July 17, 1787. Larry Kramer suggests that this proposal by Martin, an avowed foe of centralized power, was a gambit to move the debate away from what Martin likely viewed as the worst-case scenario of a congressional veto power and to adopt instead a weaker method of national oversight over state law. “From this point on, then,” Kramer argues, “the delegates assumed the existence of judicial review over state laws in their deliberation” (Kramer, People Themselves, 75).
146. Farrand, Records, 2:389, Madison's Notes, August 23, 1787. In its final form, the supremacy clause reads as follows: “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” (U.S. Constitution, art. 6). Madison's final reference to the negative during the Convention is almost touching. As the delegates discussed giving the national government the power to police state export duties, Madison's notes record that he said, “The jurisdiction of the supreme Court must be the source of redress…. His own opinion was, that this was insufficient,—. A negative on the State laws alone could meet all the shapes which these [duties] could assume. But this had been overruled” (Farrand, Records, 2:589, Madison's Notes, September 12, 1787).
147. Sager, “Supreme Court,” 49 (noting that on August 27—the Monday following the Thursday on which the delegates unanimously adopted amendments to the supremacy clause that made the Constitution, as well as acts of Congress and treaties, the “supreme law of the several States”—“the Convention spent an intense day addressing the judiciary article”).
148. Ibid.; accord Farrand, Records, 2:430–31, Madison's Notes, August 27, 1787.
150. Farrand, Records, 3:103, Pierce Butler to Weedon Butler, October 8, 1787; see also Kramer, People Themselves, 280n1 (listing statements by delegates acknowledging judicial review as the most viable alternative to the federal negative).
151. See Farrand, Records, 2:430–31, Madison's Notes, August 27, 1787.
152. Compare Farrand, Records, 2:172 (version of July 24–26), with 2:600 (final version of September 12).
153. Farrand, Records, 2:431, Madison's Notes, August 27, 1787.
154. Goebel, Antecedents and Beginnings, 241.
155. For a comprehensive discussion of what became known as “the Genet affair,” see Elkins, Stanley and McKitrick, Eric, The Age of Federalism: The Early American Republic, 1788–1800 (New York: Oxford University Press, 1993), 341–54.
156. See John P. Kaminski, review of Notes of Debates in the Federal Convention of 1787 by James Madison, ed. Adrienne Koch, Common-place 2 (July 2002); available at http://www.common-place.org/vol-02/no-04/reviews/kaminski.shtml.
157. Madison to Trist, December 1831, in Hunt, Writings of James Madison, 9:473–74.
158. Anti-Federalists and, later, Republicans made a similar point during and after the ratification debates, arguing that the federal negative would have been preferable to the more robust centralization embodied in the supremacy clause and promoted by the Supreme Court under the leadership of Chief Justice John Marshall. Writing in 1828, John Taylor of Caroline lauded the rejection of the Virginia Plan but noted that “the negative power over state laws with which it was invested, was much less objectionable than that now constructively contended for on behalf of the federal government” (Taylor, John, New Views of the Constitution of the United States [Washington, D.C.: Way and Gideon, 1823], 18). In an 1833 letter in which he defended the negative, Madison cited Taylor's comments as “not unworthy of notice” and reiterated his own oft-repeated argument for “the necessity of some adequate mode of preventing the States, in their individual characters, from defeating the constitutional authority of the States in their united character, and from collisions among themselves” (Madison to Rives, October 21, 1833, in Letters and Other Writings of James Madison, Fourth President of the United States [Philadelphia: J. B. Lippincott, 1865], 4:313).
159. Madison, James, “Preface to Debates in the Convention: A Sketch Never Finished nor Applied,” in Notes of Debates in the Federal Convention of 1787, ed. Koch, Adrienne (Athens: Ohio University Press, 1984), 16. Madison drafted the preface between 1830 and 1836 as part of preparing his notes for publication after his death (ibid., 1).
160. Madison did contemplate a degree of judicial review according to which courts would be bound by the laws of the United States, but he seems quite clearly to have envisioned this as subordinate to the federal negative. “Let this national supremacy be extended also to the Judiciary department,” he wrote to Randolph. “If the judges in the last resort depend on the States & are bound by their oaths to them and not to the Union, the intention of the law and the interests of the nation may be defeated by the obsequiousness of the Tribunals to the policy or prejudices of the States” (Madison to Randolph, April 8, 1787, PJM, 9:370). As his comments regarding the limitations of ex post review show, however, he clearly considered judicial review to be at best a supplement to the federal negative.
161. Following the ratification of the Constitution, the phrase “legislative review” referred on at least one occasion to the process by which a legislature reviewed the decision of a court in a particular case, in contrast to the earlier sense of a legislature reviewing a piece of legislation before it came into effect. This post-1787 legislative review bore little resemblance to the Privy Council's practices or to the federal negative, since it concerned a prior judicial decision rather than a potential act of legislation. The seminal case involving this variant of legislative review was Calder v. Bull (1798), in which the Supreme Court permitted the Connecticut legislature to set aside the verdict of a Connecticut probate court. As the Supreme Court noted in a 1995 decision, Calder involved “ad hoc legislative review of individual trial court judgments”—a far cry from the programmatic review of pending legislation that Madison's federal negative had contemplated; see Plaut v. Spendthrift Farm, Inc., 514 U.S. 211, 260 (1995) (citing Calder v. Bull, 3 U.S. 386 (1798)).
162. U.S. Constitution, art. 6, para. 2.
163. As Richard B. Bernstein notes, “by bringing the Constitution into the sphere of judicially enforceable law, the Supremacy Clause ensure[d] that controversies over the meaning of the Constitution [would] resolve themselves, sooner or later, into judicial questions coming before the federal judiciary and eventually the Supreme Court” (Bernstein, Richard B., Are We to Be a Nation? The Making of the Constitution [Cambridge, Mass.: Harvard University Press, 1987], 174).
164. U.S. Constitution, art. 6, para. 2.
165. Judiciary Act of 1789, chap. 20, 1 Stat. 73; Fletcher v. Peck, 10 U.S. 87 (1810); Martin v. Hunter's Lessee, 14 U.S. 304 (1816).
The Judiciary Act of 1789 established the statutory basis for implementing the supremacy clause by providing, in relevant part,
that a final judgment or decree in any suit, in the highest court … of a State … where is drawn in question the validity of a treaty or statute of, or an authority exercised under the United States, and the decision is against their validity; or where is drawn in question the validity of a statute of, or an authority exercised under any State, on the ground of their being repugnant to the constitution, treaties or laws of the United States, and the decision is in favour of such their validity, or where is drawn into question the construction of any clause of the constitution, or of a treaty, or statute of, or commission held under the United States, and the decision is against the title, right, privilege or exemption specially set up or claimed by either party, under such clause of the said Constitution, treaty, statute or commission, may be re-examined and reversed or affirmed in the Supreme Court of the United States upon a writ of error.(Judiciary Act of 1789, sec. 25, chap. 20, 1 Stat. 73)
Fletcher v. Peck was one of the first cases in which the Supreme Court held a state law unconstitutional. The Court under Chief Justice John Marshall held invalid a 1796 act of the Georgia legislature revoking earlier land grants in the Yazoo River region. The Court based its decision on the impairment to contractual obligations—in the form of subsequent sales of the land to bona fide purchasers—that the Georgia law would have worked (Fletcher, 10 U.S. at 135).
Martin v. Hunter's Lessee established the Supreme Court's appellate review over state court decisions in civil cases. Like Fletcher, the Martin case involved real estate: in this case, competing land claims between the nephew of Lord Fairfax, whose lands the Virginia legislature had confiscated during the Revolution, and Hunter, the subsequent recipient of those lands. Writing for the Court, Justice Story held that the Supreme Court alone had power to decide questions concerning federal law and, more relevant for this case, federal treaties, even if those questions arose in state court (Martin, 14 U.S. at 333–35).
Prior to the Supreme Court's holdings in Fletcher and Martin, the principle of judicial review of state legislation by lower federal courts was established in Champion & Dickason v. Casey, a 1792 case in which the federal circuit court for Rhode Island (comprising the aptly named U.S. district judge Henry Marchant as well as Chief Justice John Jay and Associate Justice William Cushing) invalidated on contracts clause grounds a Rhode Island law that extended the period for merchant Casey to settle his debts with London merchants Champion and Dickason (see Bilder, Transatlantic Constitution, 193).
166. On the debates in the 1790s and 1800s concerning the organization of the federal judiciary, see LaCroix, Alison L., “The New Wheel in the Federal Machine: From Sovereignty to Jurisdiction in the Early Republic,” Supreme Court Review (2008): 345–94.
167. The Speeches of His Excellency Governor Hutchinson, to the General Assembly of the Massachusetts-Bay … With the Answers of His Majesty's Council and the House of Representatives … (Boston: Edes and Gill, 1773), 11.
168. “Considerations on the Nature and Extent of the Legislative Authority of the British Parliament,” in The Works of James Wilson, ed. Robert Green McCloskey (Cambridge: Harvard University Press, 1967), 2:745. The advertisement that announced the publication of this work noted that Wilson had originally written this pamphlet in 1768, during the nonimportation controversy that followed the passage of the Townshend Acts, but it was not published until 1774.
169. The connection between the negative and Congress's affirmative lawmaking power is evident throughout the records of the Convention. For example, the July 17 vote that defeated the negative followed immediately on a vote approving a motion to give Congress the power “to legislate in all cases for the general interests of the Union, and also in those to which the States are separately incompetent or in which the harmony of the U. States may be interrupted by the exercise of individual Legislation” (Farrand, Records, 2:26, Madison's Notes, July 17, 1787).
170. Bailyn, Ideological Origins, 358.
171. Ibid., 358: Bailyn associates this desire to merge levels of authority with the Federalist proponents of the Constitution. But it is worth noting that in the debates of the 1790s and 1800s concerning the scope of federal jurisdiction, Federalists (the label by then standing for the political party) tended to advocate federal courts with broad, and in some cases exclusive, powers of jurisdiction—that is, for more, not less, separation between the procedural levels of government; see LaCroix, “New Wheel in the Federal Machine.”
172. Bailyn, Ideological Origins, 358
173. By “judicially driven federalism,” I mean something different from the “judicially enforced federalism” that Larry Kramer has discussed. Kramer uses the phrase in the context of what has been called the “new federalism” of the Rehnquist Court, referring to the problem of restraining Congress and maintaining limits on federal power (Kramer, Larry D., “But When Exactly Was Judicially-Enforced Federalism ‘Born’ in the First Place?” Harvard Journal of Law & Public Policy 22 : 123–38, 127).
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