Grace Mallon reviews Fritz, Monitoring American Federalism

Dr. Grace Mallon

Grace Mallon is Kinder Junior Research Fellow at The University of Oxford’s Rothermere American Institute.

Christian G. Fritz, Monitoring American Federalism: The History of State Legislative Resistance (Cambridge: Cambridge University Press, 2023), ISBN 9781009325608, DOI: Hardcover, $39.99.

Reviewed by Grace Mallon

State resistance to federal policy has become a bogeyman of American history, and for good reason. Many of its great theorists and practitioners have been rabid supporters of slavery and segregation, and the vision of sovereign states with no binding constitutional obligation to abide by federal laws formed the intellectual justification for Southern secession. Christian Fritz’s new book reminds us, however, that a role for state governments in raising objections to federal actions, while always controversial to some degree, is nevertheless a long-standing part of the state-federal relationship. Borrowing the language of James Madison’s 1798 Virginia Resolutions, Fritz uses the term ‘interposition’ to denote the practice whereby state governments ‘sound the alarm’ about potentially unconstitutional actions of the federal government. Monitoring American Federalism is a history of the theory and practice of ‘interposition,’ tracing its acceptance and rejection among American political elites from the 1790s to the present. 

            We begin with the ratification debates, where Americans puzzled over the ambiguities of the state-federal relationship laid out in the proposed constitutional text. Seeking to soothe the nerves of New York’s Antifederalist delegates, who feared the trampling of the states by a new national leviathan, James Madison and Alexander Hamilton described in their Federalist essays ‘a monitoring role for state legislatures,’ which would ‘sound the alarm if the general government exceeded its rightful authority’ under the new system. Although they did not use the word, this, Fritz argues, was the origin of the practice of ‘interposition,’ which ‘took on a life of its own’ in the decades to come (p. 11). 

            Once it was clear that the ratifying conventions’ attempts to clarify the intergovernmental power dynamic through constitutional amendments had failed, state legislators and governors sought a new method for keeping the federal government transparent to their scrutiny and responsive to their wishes. Virginia blazed a trail by issuing a ‘memorial’ to Congress claiming that the Funding Act of 1790 violated the Engagements Clause of Article VI (p. 58). This in turn triggered ‘a vigorous debate . . . over the legitimacy of state legislators passing resolutions describing the new national government’s financial policies’ – or any of its policies – ‘as unconstitutional’ (p. 40). In Chapter 3, the Supreme Court enters into the narrative with Chisholm v. Georgia (1793), which heralded a further round of legislative interposition as states fought for sovereign immunity in the face of widespread suits for the recovery of Revolutionary War debt. The chapter explores the considerable role state governments played in securing the passage and ratification of the Eleventh Amendment to the Constitution, and their more controversial part in challenging the ratification of Jay’s Treaty, which again led to calls for constitutional amendment from some state officials (p. 66).  

            Fritz goes on to provide a close look at the creation and consequences of the Virginia and Kentucky Resolutions of 1798, in which James Madison described a political mechanism whereby the states could ‘interpose’ to ‘arrest[] the progress of the evil’ that arose when the federal government sought to ‘exercise others powers’ than those granted to it by the Constitution. While Madison’s language was troublingly ambiguous in its own right, it was Thomas Jefferson who ‘seemingly foreshadowed the extra-constitutional remedy of nullification’ in his draft of the Kentucky Resolutions ‘when he stated that unconstitutional laws were null and void.’ Though the author acknowledges that the Resolutions ‘provided the raw materials for future constitutional catastrophe,’ he nevertheless insists that ‘the resolutions are incorrectly viewed as originating the idea that John C. Calhoun would develop into his theory of nullification’ (p. 127). Fritz argues that Madison was, in the Virginia Resolutions, articulating a ‘theoretical right of the collective people who were the sovereign foundation of the Constitution to serve as the ultimate arbiter of the existence of egregious constitutional overreaching by the national government in the final resort’ (p. 93). Madison’s ‘much-misunderstood’ contributions to the Resolutions (p. 104) only became part of the intellectual heritage of nullification through later misreading and misconstruction.  

            The Jefferson and Madison presidencies, as the fifth chapter narrates, witnessed the curious phenomenon of New England’s arch-Federalist governing elites turning to state legislative protest and the obstruction of federal laws – mechanisms they had heretofore loudly denigrated – when they found themselves faced with policies, such as Jefferson’s Embargo and the raising of troops against Great Britain, with which they fervently disagreed (pp. 129-130). The sixth chapter addresses the question – contested by states’ rights advocates – of the Supreme Court’s power to make final judgments on the meaning of the Constitution. While, in cases like Cohens v. Virginia (1821) the Marshall Court insisted on its own authority, the Virginia Court of Appeals, for one, ‘held that the Supreme Court lacked appellate authority over Virginia’s court and that the purported grant of that authority was unconstitutional’ (in the 1814 case of Hunter v. Martin, Devisee of Fairfax, p. 164). 

            Next, Fritz explores the emergence and impact of the theory of nullification before the Civil War. Chapter Seven explores the intellectual history of Calhounite nullification, giving almost equal time to James Madison’s attempts to refute any connection between the constitutional vision he expressed in the Virginia Resolutions and South Carolina’s later arguments. In the course of this refutation, Madison attempted to articulate a theory of the Constitution’s origins and purpose as ‘partly federal and partly national,’ but this nuanced intervention did little to achieve his goal of distancing his own earlier intellectual experiments from those of Calhoun and his followers (pp. 197-8, 226). In Chapter Eight, we arrive in the 1850s, where Fritz reminds us again of the role played by Northern states in the history of state protest against federal policies, laying out in characteristic detail their legislative and judicial attempts to object to, and ultimately to nullify, the 1850 Fugitive Slave Act. Chapter Nine takes us into the Civil War itself, not only commenting on developments within the union, but also painting a fascinating picture of ‘Confederate governors deeply engaged in negotiating the terms of the federalism established by the Confederate Constitution’ (p. 275). State resistance to Reconstruction policies, as well as other perceived expansions of the constitutional role of the federal government, in both the North and the South also features.

            In the final chapter, we learn that, although proslavery and segregationist political actors in the twentieth century sought to appropriate James Madison’s intellectual legacy and to legitimize the concept of interposition for a new era, ultimately any association with nineteenth-century nullificationist theories of the Constitution became an embarrassment to politically ambitious leaders, even those who fiercely opposed the Supreme Court’s ruling in Brown v. Board and the federal policies that followed it (p. 295). A 1960 federal court case seemed to sound the death knell for interposition, with the court ruling ‘that the “amorphous concept” of interposition was “not a constitutional doctrine,” but instead “illegal defiance of constitutional authority”’ (p. 300). In the twenty-first century, however, Fritz concludes that state resistance has risen again, now with the support of the Supreme Court (p. 305). 

            This work provides a thorough, well-researched account of one key aspect of American constitutional thought. Because the constitutional past is, for better or worse, always relevant to the political present of the United States, Monitoring American Federalism also raises questions with considerable contemporary relevance. First, could – and, implicitly, can – state governments offer objections or resistance to the laws, rulings, and actions of the federal government in constitutionally legitimate ways? And second, if there are constitutionally legitimate mechanisms by which states can object and resist, what precisely are the circumstances under which they can rightfully be employed? 

            Fritz’s answer to the first question is a fairly unequivocal yes. He finds a role for the states in ‘sounding the alarm’ in cases of federal overreach to be justified by both Hamilton and Madison in The Federalist, and endorsed by decades of state practice which, though always controversial among the proponents of whatever federal measure the states happened to be objecting to, continued on around the country and across the political spectrum throughout the nineteenth century and into the twentieth, and is in fact experiencing a revival in our own day. Although it did not always succeed in effecting change, there was nothing inherently destructive of the American constitutional order in this practice. 

            Although Fritz grants that state objections to federal policy are constitutionally justifiable, however, his answer to the second question – under what circumstances? – provides a number of crucial caveats. Nullification – when a state government unilaterally refuses to enforce a federal law or undermines the enforcement of that law within its boundaries – is unconstitutional. Moreover, when a state ‘interposes’ by raising questions about the constitutionality of federal laws through a legislative resolution, it should do so for the specific purpose of ‘sounding the alarm’ to the other states and to Congress. Fritz’s vision of a democratic ‘interposition’ involves, not individual states deciding which policies they will and will not tolerate, but a process through which state governments, acting as representatives of the people, bring concerns about federal behaviour to the attention of the people at large and their representatives in Congress. Fritzian ‘interposition’ as a constitutional balancing mechanism is therefore, theoretically at least, more respectful of the doctrine of popular sovereignty than a judicialized approach to constitutional controversies (pp. 6-8).    

            My first criticism of the work relates to Fritz’s choice of terminology. On page 5, he defines ‘interposition’ as ‘a formal state protest against actions of the national government designed to focus public attention and generate interstate political pressure in an effort to reverse the national government’s alleged constitutional overreach.’ ‘Formal state protest against actions of the national government’ is certainly a recognizable category of state action that has existed since the dawn of government under the Constitution. The problem is that, for at least the first ten years under the national government, neither the authors of The Federalist, who Fritz claims originated the mechanism of ‘interposition,’ nor the state legislators who used that mechanism, actually called it by that name. Moreover, when James Madison did use the word ‘interpose’ to describe state resistance in the Virginia Resolutions of 1798, he was describing – as Fritz argues (p. 93) – a different mechanism, with a different constitutional justification, from the ‘sounding the alarm’ resolutions the states had been sending up to Congress throughout the 1790s. Fritz’s choice of word introduces some confusion into what is generally a very precisely written work of history. 

            My second criticism has to do with James Madison’s role in the study. For Fritz, the intellectual history of ‘interposition’ centres on Madison, who, as Publius, described a future in which the states, faced with ‘ambitious encroachments of the Federal Government,’ would ‘espouse the common cause,’ open ‘a correspondence,’ and together prepare ‘plans of resistance’ (Federalist XLVI, quoted p. 28). Throughout the 1790s, the states followed Madison’s instructions, co-ordinating campaigns of resolutions against objectionable federal actions. At the end of the decade, Madison introduced concerning complexities into the theory of state resistance through the Virginia Resolutions, but he did not, per Fritz, ever support anti-majoritarian state resistance to the execution of federal laws, and remained on the right side of history until his death in 1836, as evidenced by his own repeated assertions that his theory of ‘interposition’ was entirely intellectually distinct from Calhoun’s nullificationist schemes. 

            I have two queries about this narrative. First, I must question whether the state officials who remonstrated against federal laws in the 1790s were simply following Publius’s lead. Leaving aside intellectual history briefly, it might be useful to consider state remonstrance against federal laws as a practice that can be linked back to earlier forms of legislative protest during the colonial and Confederation eras. Second, Fritz’s implicit reasoning throughout the work that what James Madison supported was good/constitutional, and what he opposed was bad/unconstitutional, may not satisfy those readers who are not ‘all originalists now.’ Madison’s avowals that his constitutional theories were unconnected from those of Calhoun have failed to convince many scholars up to this point that his thought was not in some sense linked to the rise of nullification. Despite its other useful contributions, I doubt Fritz’s work will change this. Furthermore, Madison’s authority should not be the central factor upon which the constitutionality of state legislative objections to federal laws rests. Fritz’s meticulous investigation into their historical role in American constitutional practice offers a far more stable basis for their continued use.