Taking Liberties With Madison

What follows is a guest blog post, written by my good friend Howard Lubert. Howard and I both received our PhDs from Duke University, though we didn’t actually meet until he interviewed (and subsequently hired) me at James Madison University in 2004. A lover of fine cigars from island nations with whom the U.S. has controversial trade relations and spirituous beverages from Scotland, Howard is Associate Professor of Political Science at JMU and author of several excellent publications on early American political thought.

In a syndicated November 3^rd op-ed, Walter Williams suggests that the American Civil War was primarily a battle over states’ rights, and he charges President Lincoln with unlawfully preventing Southern states from seceding from the Union. To document his claim, Professor Williams makes the following assertion:

At the 1787 Constitutional Convention, James Madison rejected a proposal that would allow the federal government to suppress a seceding state. He said, ‘A Union of the States containing such an ingredient seemed to provide for its own destruction. The use of force against 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.’

I’d like to discuss this passage and Professor Williams’ use of the quote, because it suggests either careless scholarship or outright dishonesty on his part.

If you read James Madison’s notes from the 1787 Federal Convention (which is where Professor Williams retrieved his quote), you’ll find that Madison was not discussing secession at all. Rather, he was discussing a proposed change to the Articles of Confederation, which were at the time our nation’s ruling constitution. That proposal — specifically, resolution 6 in the Virginia Plan — reads as follows:

that the National Legislature ought to be impowered to enjoy the Legislative Rights vested in Congress by the Confederation & moreover to legislate in all cases to which the separate States are incompetent, or in which  the harmony of the United States may be interrupted by the exercise of individual Legislation; to negative all laws passed by the several States, contravening in the opinion of the National Legislature the articles of Union; and to call forth the force of the Union [against] any member of the Union failing to fulfill its duty under the articles thereof.

The proposal reflected the widely-held belief, founded on years of experience under the Articles of Confederation, that state governments had willfully neglected their constitutional obligations and had encroached on powers granted by the Articles to the national government. The results, including a bankrupt treasury and a near-default on international loans, were potentially disastrous for the new nation.

The question, then, was this: how could the states be made to comply with federal law? In 1781, while serving in Congress, Madison wrote to Thomas Jefferson and suggested that the national government use naval blockades as a way to compel states to fulfill their federal obligations. Ultimately, however, he (and others) came to reject this mode of enforcement. As George Mason noted at the Convention (on May 30), “the present confederation was not only deficient in not providing for coercion & punishment [against] delinquent States; but [he] argued very cogently that punishment could not in the nature of things be executed on the States collectively, and therefore that such a Govt. was necessary as could directly operate on individuals, and would punish those only whose guilt required it.” Madison agreed, as did Edmund Randolph, Alexander Hamilton, and others. In fact, Hamilton would soon write two Federalist essays — nos. 15 & 16 — on this topic precisely.

In short, the debate to which Professor Williams refers was not a debate over secession at all, but rather a debate over how states might be made to comply with their constitutional obligations and to respect the powers constitutionally-granted to the central government. What the Constitution’s framers discovered was that the new Constitution had to be based on a new principle; namely, that the general government would have the authority to enforce national law on individual citizens directly.

This change marked a significant departure from the Articles of Confederation and reflected the delegates’ willingness to grant the central government considerably more power, a willingness that is certainly reflected in Madison’s repeated call to give the U.S. Congress an unlimited veto power over state laws.