Who Judges the Constitution?
I am pleased to participate in this Law and Liberty forum and to comment on Colleen Sheehan’s “Sounding the Alarm to the People.” In my view Sheehan’s characterization of Madison is right on the mark. In particular I agree with her: 1) that Madison recognized the federal government might sometimes exercise power dangerously, in ways far beyond what the Constitution prescribes, 2) that in such times state legislatures can play an essential role in “sounding the alarm” and organizing opposition; 3) that in Madison’s view the people of the United States were the ultimate sovereign authority — not the federal government (or the federal judiciary!) on one side, nor the individual states on the other; 4) that Madison’s Virginia Resolutions, in contrast to Jefferson’s Kentucky Resolutions, do not claim any right of an individual state to nullify federal law; and 5) that Madison’s purpose in the Virginia Resolutions was (as Sheehan puts it) “to utilize the states as vehicles to excite public reflection and mobilize public opinion” – a national public opinion, articulated through the medium of legislative bodies in several states. I also agree with Sheehan that these are important matters that have not lost their relevance despite the passage of more than two centuries, though my own judgment of their contemporary application differs somewhat from hers.
Because I do not disagree with Sheehan’s characterization of either Madison or Jefferson in her essay, I would instead like to broaden the discussion. In particular I will: A) outline two competing positions on the respective roles of the federal judiciary and the individual states in rendering constitutional judgment — positions that, Sheehan and I agree, Madison rejected; B) raise the wider problem that for Madison, both federal government and states could violate the Constitution and pose threats to liberty, and consequently either level of government might sometimes be necessary instruments to counteract abuses by the other; and C) pursue the theme (which Sheehan touches on only briefly) of the contemporary implications of Madison’s argument. I should emphasize that, in making 21st century extensions of Madison’s thought, none of us — including those of us immersed in Madison’s writings — can claim the mantle of Madisonian authority. It is a matter instead of how, as thoughtful citizens, we ourselves view the present through our Madison-tinted spectacles.
WHO JUDGES THE CONSTITUTION?
Sheehan notes correctly that in his campaign against the Alien and Sedition Acts Madison denied “that the judiciary is the sole or ultimate expositor of the Constitution” even if the judicial branch does function as the “tribunal of last resort.” Madison’s understanding of the judiciary’s role in constitutional adjudication was a complicated one typically missed by those who prefer simple “either-or” propositions (and who therefore accuse Madison of contradicting himself on this point.)
This question was practically of great importance in 1798 because at the time the Federalist-dominated judiciary was at least as partisan as the Federalist majority in Congress. There was no chance the federal courts would rule the Sedition Act unconstitutional, despite its evident incompatibility with the First Amendment and the threat it posed to the integrity of elections.
The “either-or” thinking goes as follows: someone must have final authority to interpret the Constitution’s meaning. Either that power must be lodged in the federal government (and especially in the U.S. Supreme Court); or it resides in the states. But the Constitution provides no mechanism except formal constitutional amendment by which states in the plural can decide constitutional questions. Thus the only alternative to the U.S. Supreme Court rendering final constitutional judgment, is for each individual state to act as final judge of the U.S. Constitution — and, if necessary, to enforce that judgment against the federal government, and against other states who judge differently. Thorough-going nationalists like Alexander Hamilton, and advocates of what may be termed judicial sovereignty, embrace the first alternative; nullifiers like John C. Calhoun embrace the second. But the same “either-or” logic generates both positions.
Madison escaped the “either-or” trap by distinguishing between institutional decision making on constitutional questions, and constitutional deliberation and judgment. The first is the role of the judiciary; the second is the right and responsibility of office-holders and ordinary citizens at all levels of government in a polity grounded on the principle of popular sovereignty. In Federalist No. 39 Madison remarked that, though the Constitution divides power between federal government and states, the “tribunal” that decides boundary disputes between the two had to be located in the federal government. (Whether he intended the judiciary alone to perform this function, or envisioned other federal branches participating in the process, is a separate question I won’t go into here.) For if it were left to each state to draw the boundary, there could be as many “final” constitutional rulings as there were states, leading to “an appeal to the sword and a dissolution of the compact” – a point Madison also emphasized in his response to nullification in 1830. Despite the oft-repeated charge that Madison reversed his constitutional principles between 1787 and 1798, he never suggested in 1798 that each individual state could impose whatever constitutional limits it liked upon federal authority.
But none of this prevents state legislatures from announcing publicly that they consider a particular federal act to be unconstitutional, passing resolutions to that effect and communicating them to other states, and working to overturn the act through regular constitutional processes like elections and constitutional amendments, – or, in the extreme, by resorting to the extra-constitutional right of revolution. A sovereign people may respect the judiciary’s institutional function without relinquishing the people’s more fundamental right of constitutional deliberation and judgment. For this reason Sheehan’s emphasis on Madison’s effort to mobilize national public opinion against the Alien and Sedition Acts is exactly right.
THREATS FROM BOTH DIRECTIONS
Before and during the 1787 Convention and in his contributions to the Federalist, Madison was especially concerned with the tendency of states to violate fundamental rights and liberties, and believed that federal government under the proposed Constitution would better protect liberty. The Bill of Rights in the form Madison proposed it in 1789 (in contrast to the version ultimately enacted) would have prevented both federal and state governments from restricting freedom of speech and press, violating religious liberty, and depriving citizens of the right to trial by jury. Does this mean that, as some have alleged, Madison reversed his political and constitutional principles by 1798 when he called upon the states to resist violations of liberty by the federal government? In fact, as Sheehan notes, even in the Federalist Madison admitted the possibility that the federal government might also endanger liberty, and trusted that in such event the state legislatures would be ever ready to “sound the alarm.” But in 1787 he considered violations of fundamental rights and liberties by the states to be much more likely.
One of the advantages of a federal system, both levels of which draw their authority from the people, is that it promises what Madison in Federalist No. 51 called “double security” against threats to rights and liberties: the people will keep watch over both levels of government, and each level of government will keep watch over the other. In the 1780s Madison believed that the federal government would better safeguard liberty by restraining the instability and injustices of the states; by 1798 he realized the federal government might become the greater threat. Obviously his initial predictions were way off. But this doesn’t affect the integrity of Madison’s “double security” thesis, which presupposes that either level of government may threaten rights and liberties, and either level of government may serve as an instrument of remedy. I’m sure Sheehan would agree with this characterization of Madison’s thought, but because she didn’t specifically mention federal remedies to state abuses in her essay, I wanted to introduce that theme into the discussion.
This is another respect in which Madison’s vision of the “compound republic” drawing its authority from the sovereign American people differs from the state-sovereign doctrines of nullification. From the perspective of nullification theory, any attempted intervention by the federal government to protect citizens from rights violations committed by their state could itself be nullified by that state — for each state is final judge of the Constitution, and unlikely to rule its own action unconstitutional. But Madison’s “double security” thesis was hampered by his failure to secure a Bill of Rights constitutionally binding upon both federal government and states. In this respect the Fourteenth Amendment, as Michael Zuckert has observed, “completes” Madison’s vision of the Constitution.
Sheehan’s essay includes one brief paragraph asking whether state legislatures would even “dare to challenge the national government today,” whether states have become “merely subordinate administrative units that must obey the powers in Washington,” and whether states now suppose that checking federal abuses “is the sole province of the national judiciary.” What follows is my own (not Madison’s!) brief response to the questions she raises.
I see states today as assertive, not supine, in their authority contests with the federal government. Among other things, various states — without resorting to nullification — have resisted the REAL ID Act, No Child Left Behind, federal marijuana laws, and challenged the 2010 federal health reform law in court. When states take the federal government to court, they do accept federal judicial authority, but in the process they actively formulate constitutional arguments of their own. States do not win every battle, and they often line up on both sides of contested national issues – just as in 1798. Nevertheless they do not appear to me to be helpless dependents, and when a federal law affects what they regard as their rightful domain, they make it known.
But it seems to me the greater significance of Madison’s response to the Alien and Sedition Acts does not concern federal invasion of state prerogatives, but federal infringement of rights and liberties fundamental to republican government itself. Some of his contemporaries argued that suppressing seditious speech was a “state right” usurped by the Sedition Act, but that was not Madison’s approach. He sought to mobilize the states in defense of basic rights and liberties that have no necessary connection with state sovereignty, and that (as noted above) can be threatened by either level of government. So my question is, are states able and willing to play this kind of role today?
The first complication is that today, just as in Madison’s time, both federal government and states can threaten fundamental rights and liberties. During the 20th century the most persistent violation of constitutional rights – denial of Fourteenth Amendment equal protection and Fifteenth Amendment voting rights to citizens of African descent – was perpetrated by states, and only belatedly remedied by the federal government. In their effort to maintain racial segregation southern states also suppressed freedom of speech and press via the mechanism of libel laws in ways comparable to the Sedition Act (see New York Times v. Sullivan, 1964).
Rights violations by the federal government include the Palmer Raids after World War I, the arbitrary detention of Japanese-American citizens during World War II, and in my view many of the congressional and executive actions taken in the so-called “War on Terror,” some of which make the Alien Act look like child’s play. Fortunately nothing like the Sedition Act has resurfaced, for which we may have James Madison to thank.
Madison argued that states must “sound the alarm” when the federal government violates rights. But with respect to most of the 20th and 21st century federal rights abuses I know of, states have been either silent or actively complicit. In the case of Japanese-Americans, for example, the state of California, far from intervening on their behalf, actively pushed the federal government forward. Nor did the U.S. Supreme Court protect their rights. The converse of Madison’s argument that national public opinion can be mobilized in defense of basic rights, is that it can also sometimes fail to be mobilized. Such cases demonstrate Madison’s point that “parchment barriers” will not protect constitutional rights to which public opinion is hostile or indifferent.
Can states be enlisted today in support, not just of their own prerogatives, but of basic rights and liberties when they are violated by either the federal government or other states? Nothing prevents states from “sounding the alarm.” Without resorting to nullification (which would be useless in any case against constitutional violations occurring outside a state’s borders), states have as much power today as they’ve always had to pass resolutions and act as vehicles (as Sheehan phrases it) “to communicate effectively and unite to control the abuses of government.” Whether and how they fulfill their role is for legislators to decide. And they will fulfill that role if we as voting citizens demand it.
 See Madison’s Speech in Congress June 8, 1789. Papers of James Madison, Vol. 12: 208.
 Michael Zuckert, “Completing the Constitution: The Fourteenth Amendment and Constitutional Rights,” Publius: The Journal of Federalism, Vol. 22 (Spring 1992), 69-91.
 On this theme see John Dinan, “Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism.” Albany Law Review 74: 4 (2011), 101-133; Martha Derthick, Keeping the Compound Republic: Essays on American Federalism (Washington, D.C.: Brookings Institution Press, 2001); and John D. Nugent, Safeguarding Federalism: How States Protect Their Interests in National Policymaking (Norman: University of Oklahoma Press, 2009).