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...
No, he doesn't refer to dissolution of the union; he refers to dissolution of the Constitutional Compact. Different animals.
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...
Where does Madison explicitly suggest that a state may dissolve the compact? He had asserted, 30 years prior, that a state may interpose, under certain circumstances, on Constitutional grounds. Whether or not one agrees with that idea, a state dissolving the Compact is far removed from a state declare a law unconstitutional. Quite near the opposite, it seems to me.
And what of the last line in the letter, which you neglected to include?:
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.
It seems to me then, that Madison saw the obligations of a compact as vital, and yet, not necessarily expressed explicitly in the Constitution itself. I wonder what Mr. Madison's ideas were on the nature of and obligations of parties to a compact.
You quoted his Report, which asserts that the states, i.e., the parties, are the final judges of Constitutionality. Let's just accept that as it is, OK? But then you leap to the conclusion that this means a state may "secede". In fact, you say this is "clearly" so. I must be blind. I don't see it! Looking at the Report, we see that Virginia has found a Federal law unconstitutional. They have written some resolutions which spell it out in painstaking detail. And they let us know what they intend to do about it. Did they propose to write their own Constitution? Cease to obey the US Constitution? Quite the opposite! Madison wrote:
The object, being to maintain what the Constitution has ordained, is in itself a laudable object.
As opposed to the Slave states, which sought to remove themselves from it.
The means are expressed in the terms "the necessary and proper measures." A proper object was to be pursued by the means both necessary and proper.
Now what could he mean by "necessary and proper" means? (I can't help finding some humor in the choice of words, given the context, but I digress, except to say surely he intended a strict construction of the phrase?)
To find an objection, then, it must be shown that some meaning was annexed to these general terms which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
And he goes on later...
These observations appear to form a satisfactory reply to every objection which is not founded on a misconception of the terms employed in the resolutions. There is one other, however, which may be of too much importance not to be added. It cannot be forgotten that, among the arguments addressed to those who apprehended danger to liberty from the establishment of the general government over so great a country, the appeal was emphatically made to the intermediate existence of the state governments between the people and that government; to the vigilance with which they would descry the first symptoms of usurpation, and to the promptitude with which they would sound the alarm to the public. This argument was probably not without its effect; and if it was a proper one then to recommend the establishment of a constitution, it must be a proper one now to assist in its interpretation.
They are "assisting in interpretation." A far cry from exiting and re-writing.
The only part of the two concluding resolutions that remains to be noticed, is the repetition, in the first, of that warm affection to the Union and its members, and of that scrupulous fidelity to the Constitution, which have been invariably felt by the people of this state. As the proceedings were introduced with these sentiments, they could not be more properly closed than in the same manner. Should there be any so far misled as to call in question the sincerity of these professions, whatever regret may be excited by the error, the General Assembly cannot descend into a discussion of it. Those who have listened to the suggestion can only be left to their own recollection of the part which this state has borne in the establishment of our national independence, or the establishment of our national Constitution, and in maintaining under it the authority and laws of the Union, without a single exception of internal resistance or commotion. By recurring to the facts, they will be able to convince themselves that the representatives of the people of Virginia must be above the necessity of opposing any other shield to attacks on their national patriotism, than their own conscientiousness, and the justice of an enlightened public; who will perceive in the resolutions themselves the strongest evidence of attachment both to the Constitution and the Union, since it is only by maintaining the different governments, and the departments within their respective limits, that the blessings of either can be perpetuated.
Union. Fidelity to the Constitution. It seems to me the Report asserts a state's responsibility to interpret the Constitution, to interpose as a last resort (when the Congress has failed), as a means of preserving the Constitution, preserving the Union. Does this mean a state may secede? No. Secession may well have been considered "improper means." Judging by Mr. Madison's great support for Daniel Webster (shall we post Webster's speech, to which Madison referred?), I would say he would have considered "secession" an improper violation of the compact, as opposed to the Virginia Resolution, which was performed in service to the Compact.
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
You can't dragoon Madison into your false and unsupported interpretation.
"The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them can have a greater right to break off from the bargain, then the other or others have to hold them to it. And certainly there is nothing in the Virginia resolutions of --98, adverse to this principle, which is that of common sense and common justice. The fallacy which draws a different conclusion from them lies in confounding a single party, with the parties to the Constitutional compact of the United States. The latter having made the compact may do what they will with it. The former as one only of the parties, owes fidelity to it, till released by consent, or absolved by an intolerable abuse of the power created...."
--James Madison.
"This advice, if it ever see the light will not do it till I am no more, it may be considered as issuing from the tomb, where truth alone can be respected, and the happiness of man alone consulted. It will be entitled therefore to whatever weight can be derived from good intentions, and from the experience of one who has served his county in various stations through a period of forty years, who espoused in his youth and adhered through his life to the cause of its liberty, and who has borne a part in most of the great transactions which will constitute epochs of its destiny.
The advice nearest to my heart and deepest in my convictions is that the Union of the States be cherished and perpetuated. Let the open enemy to it be regarded as a Pandora with her box opened; and the disguised one, as the Serpent creeping with his deadly wiles into Paradise."
-James Madison, Advice to my Country, 1834
He means you.
Walt