James Madison to Daniel Webster15 Mar. 1833Writings 9:604--5
I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy. Its double aspect, nevertheless, with the countenance recd from certain quarters, is giving it a popular currency here which may influence the approaching elections both for Congress & for the State Legislature. It has gained some advantage also, by mixing itself with the question whether the Constitution of the U.S. was formed by the people or by the States, now under a theoretic discussion by animated partizans.
It is fortunate when disputed theories, can be decided by undisputed facts. And here the undisputed fact is, that the Constitution was made by the people, but as imbodied into the several states, who were parties to it and therefore made by the States in their highest authoritative capacity. They might, by the same authority & by the same process have converted the Confederacy into a mere league or treaty; or continued it with enlarged or abridged powers; or have imbodied the people of their respective States into one people, nation or sovereignty; or as they did by a mixed form make them one people, nation, or sovereignty, for certain purposes, and not so for others.
The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government into the usual Legislative Executive & Judiciary Departments; invests it with specified powers, leaving others to the parties to the Constitution; it makes the Government like other Governments to operate directly on the people; places at its Command the needful Physical means of executing its powers; and finally proclaims its supremacy, and that of the laws made in pursuance of it, over the Constitutions & laws of the States; the powers of the Government being exercised, as in other elective & responsible Governments, under the controul of its Constituents, the people & legislatures of the States, and subject to the Revolutionary Rights of the people in extreme cases.
It might have been added, that whilst the Constitution, therefore, is admitted to be in force, its operation, in every respect must be precisely the same, whether its authority be derived from that of the people, in the one or the other of the modes, in question; the authority being equally Competent in both; and that, without an annulment of the Constitution itself its supremacy must be submitted to.
The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities, that being the Condition in which they entered into the compact; whereas if formed by the people as one community, acting as such by a numerical majority, a dissolution of the compact would reduce them to a state of nature, as so many individual persons. But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact. It must not be forgotten, that compact, express or implied is the vital principle of free Governments as contradistinguished from Governments not free; and that a revolt against this principle leaves no choice but between anarchy and despotism.
I return my thanks for the copy of your late very powerful Speech in the Senate of the United S. It crushes "nullification" and must hasten the abandonment of "Secession." But this dodges the blow by confounding the claim to secede at will, with the right of seceding from intolerable oppression. The former answers itself, being a violation, without cause, of a faith solemnly pledged. The latter is another name only for revolution, about which there is no theoretic controversy...The Constitution of the U.S. being established by a Competent authority, by that of the sovereign people of the several States who were the parties to it, it remains only to inquire what the Constitution is; and here it speaks for itself. It organizes a Government ... subject to the Revolutionary Rights of the people in extreme cases...
(For the sake of argument, I will accept Mr. Madison’s statement, although it was made a generation after he argued for ratification of the then-new Constitution.) Allow me summarize: Mr. Madison differentiated between secession “at will,” and secession resulting from “from intolerable oppression,” referring to the latter as “revolution,” and noting that the government established by the Constitution was “subject to the Revolutionary Rights of the people in extreme cases.” All well and good. But who, I must ask, determines when the “extreme case” has arisen, and “oppression” has become “intolerable?” Walt’s argument suggests two alternatives. Either the high court, itself a part of the federal government, must determine when federal government “oppression” has become “intollerable,” or (apparently) “the people” of the “-whole-“ nation must make that determination. Both options are laughable: can you picture any five members of the Supreme Court ordering the people to revolt? Is it any easier to picture a national plebiscite authorizing revolution, so long as 50.0000000001% of the "-whole-" people approve it?
Let us refer to Mr. Madison, once again, for the answer:
The...position involved in this branch of the resolution, namely, "that the states are parties to the Constitution," or compact, is, in the judgment of the committee, equally free from objection...It appears to your committee to be a plain principle, founded in common sense, illustrated by common practice, and essential to the nature compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated. 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.
James Madison, Report on the Virginia Resolutions, 1800
Clearly, the individual States must decide when “oppression” has become “intolerable.” This position is not inconsistent with Mr. Madison’s earlier declarations in Federalist No. 39 & 40, and it is entirely consistent with his Virginia Resolutions and Mr. Jefferson’s Kentucky Resolutions. And it is consistent with history: only a few States (notably Virginia and Kentucky) objected to the notorious and “palpably” unconstitutional Alien and Sedition Acts.
The only distinctive effect, between the two modes of forming a Constitution by the authority of the people, is that if formed by them as imbodied into separate communities, as in the case of the Constitution of the U.S. a dissolution of the Constitutional Compact would replace them in the condition of separate communities... But whilst the Constitutional compact remains undissolved, it must be executed according to the forms and provisions specified in the compact.
Here, again summarizing, we see Mr. Madison refer to the potential “dissolution” of the union into “separate communities:” the latter obviously referring (given the context – “the sovereign people of the several States who were the parties to it”) to the "separate" States. And we find the phrase: “whilst the Constitutional compact remains undissolved.” It would seem that Mr. Madison recognized the right of the States to secede, if the States deemed federal action sufficiently tyrannical to warrant such action...