Saturday, December 24, 2022

The Virginia Resolution at 224: Still Very Much With Us, As Red Seeks to Block Blue, and Vice Versa

Madison’s Anniversary

Can the states interpose their power in opposition to what they deem to be noxious federal policies?  That’s a question that comes up a lot these days, even if the word “interpose” isn’t much used.  Yet by whatever name, the idea of using legal and political strategies to block unwanted federal policies is popular, both with the left and the right.  These days, as diversity muscles past uniformity, few federal policies are well regarded nationwide.  As a result, state leaders--governors and other officials--operating from their respective blue and red bastions, find themselves at odds with various federal policies.  It was never the case that one size fits all in this country, and the Founders understood that, which is they wired federalism into the Constitution. 

Yet in our time, it's all the more obvious that one size doesn't fit all 335 million of us, even as, of course, the federal edifice is vastly larger and more encroaching than it was three centuries ago.  Therefore, more state-federal feuds are inevitable.  And so, in their many legal, political, and ideological tussles with the central government, state leaders today, left as well as right, are recapitulating the periphery vs. core dynamic that preoccupied the Founders, albeit today we see it on a grander scale. 

So on this, the 224th anniversary of the use of the “i” word, interpose, by a major figure in American history, James Madison--the author of the U.S. Constitution and our Fourth President, as well as the author of the Virginia Resolution that we remember today—let’s consider how interposition has manifested itself, is manifesting itself, and will manifest itself in the future, as red states grow redder, and blue states become bluer. 

As we all know, the red-blue split is one of the most important trends of our time.  It’s not just the difference between Republicans and Democrats in Congress—who are veering further apart in their partisanship—but the difference between the political cultures of red states and blue states.  Indeed, if we consider the red-blue split in cultural, as well as political, terms, we can see its full depth.  Think rural vs. urban.  NASCAR vs. NPR.  Chick-fil-A vs. Patagonia. Diversity, in the fullness of the concept, is real.  Fortunately, we have a mechanism for managing--even, if you will, celebrating--that diversity: the U.S. Constitution.  

As recently as two years ago, blue states seized every opportunity to block the policies of Donald Trump.  For instance, then-California attorney general Xavier Becerra, a Democrat, sued the Trump administration more than 100 times, on matters ranging from immigration to the census to gun control.  In so litigating, Becerra became a hero to the left; in 2021, in recognition of his service to the blue cause, President Joe Biden appointed him secretary of the Department of Health and Human Services. 

Yet these days, the shoe is on the other foot.  Now it’s red states—most notably, Florida—opposing the Biden Administration.  Indeed, Florida Governor Ron DeSantis isn’t just opposing federal policies; he is actively seeking to investigate the federal government for "crimes and wrongdoing committed against Floridians related to the Covid-19 vaccine."  The idea that a U.S. state would investigate the feds is extraordinary.  But okay, these are extraordinary times, and so we shouldn’t be surprised that the national EQ—Extraordinary Quotient—keeps rising.  

To sum up, at different times, and on different issues, both blue and red states have sought to interpose their sovereign power against federal policies. (Some might say that they have sought to nullify.)  Once again, this is diversity on display: The Democrats have their vision of the good life, and good politics, and Republicans have theirs—and increasingly, with apologies to Rudyard Kipling, never the twain shall meet. 

So if the Democrats hold the White House in 2024, it’s a safe bet that Republican states will continue to oppose the blue administration, and if Republicans win, Democrats will immediately rediscover their Becerrra-esque legal-oppositional moves. 

But let’s go back to “interposition.”  In 1798, Virginia was reacting, negatively, to the policies of President John Adams, most notably, the Alien and Sedition Acts.  That legislation, enacted by the Federalists who controlled the Fifth Congress, made it a crime to publish “any false, scandalous and malicious writing” about the U.S. government or its officials.  Plainly, the new law was an urgent threat to personal liberty.  In response, members of the rival party to the Federalists, the Democratic-Republicans, flexed their muscles of opposition in the legislative bodies they controlled.  And so on December 21, 1798, the Virginia House of Delegates passed a resolution, written by Madison—a former Member of Congress from Virginia, now a private citizen living in Montpelier—and then, three days later, the Virginia Senate passed it, too. 

The language of the resolution was fully Madisonian in its measuredness:

That this assembly most solemnly declares a warm attachment to the Union of the States, to maintain which it pledges all its powers; and that for this end, it is their duty to watch over and oppose every infraction of those principles which constitute the only basis of that Union, because a faithful observance of them, can alone secure its existence and the public happiness.  [emphasis added] 

Precisely because we love the Union, Madison is saying, we must protest any encroachments on its integrity.  Madison continues, adding in the “i” word: 

the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. [emphasis added] 

We can observe that the word “interpose” is studiedly soft and a bit vague, even if Madison's use of the word “evil” is, well, neither soft nor vague.  So the resolution was definitely a throw-down. 

Strikingly, a similar resolution had passed earlier that same year, on November 11, in Kentucky, another state controlled by the Democratic-Republicans.  Declaring the states’ ability to block federal legislation it deemed odious, the Kentucky Resolution used the word “nullification,” a much stronger word than “interpose”: 

the several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts . . . is the rightful remedy.

Interestingly, the secret author of this resolution was none other than Thomas Jefferson, then the sitting vice president (those were the days, of course, prior to the 12th Amendment, when presidents and vice presidents were not elected on the same ticket, so Vice President Jefferson never pretended to be an ally of President Adams).  

Yet because Virginia was by far the largest state in the Union—and the home of George Washington, then still living—the resolution coming out of close-in Richmond resonated much more with the nation than the one from distant Frankfort.  Still, it must be noted that the other 14 states were not in accord with either Virginia or Kentucky.  Asked to agree with the resolutions, four states had no response, and ten rejected them. 

Yet even so, the resolutions were impactful.  In the presidential election the following year, 1800, the Sedition Acts were a major issue.  And the Democratic-Republicans, the party of Madison and Jefferson, swept out the authors of the Sedition Acts, Adams and the Federalists.  In fact, the popular vote was a landslide, even if the electoral-vote counting was iffier.  

Having been elected to the presidency, Jefferson would serve two terms in the White House.  In his first year, 1801, the Sedition Acts expired; moreover, the Third President pardoned all those previously convicted under their provisions.  Then Madison followed Jefferson in the White House in 1809, serving two terms of his own.  (As a relevant aside, the electoral geography of the 1800 election foreshadows the red-blue landscape of today: The Democratic-Republicans carried the South and West, such as it was, while the Federalists carried New England.) 

The Resolutions Today

Political events thus mooted the immediate legal and constitutional questions about the Virginia and Kentucky Resolutions.  However, the underlying issues they raised are unresolved to this day.  Taken together, the resolutions made two arguments that continue to echo:

First, the Union is a compact among individual states; as Madison wrote, the Union was “resulting from the compact to which the states are parties.”  The idea that the Union is a compact among the states suggests, of course, that if the terms of the compact are broken, the compact itself—that is to say, the Union—can be broken.  We can realize immediately that this sort of thinking helped inspire the South to secede in 1861.  In other words, the idea of the United States as a compact is a deeply loaded proposition.  And while Madison and Jefferson were long dead by the time of the Civil War, their words in the resolutions were cited frequently by Southern champion John C. Calhoun, as well as by the fire-eating secessionists who followed him after his death in 1850.   

Second, the resolutions argued that states had delegated certain specific powers to the federal government, while reserving the remaining powers for themselves.  And among those powers was the right to interpose state sovereignty to protect citizens from the depredations of the federal government.  That is, it’s not so much that the states are rejecting the idea of the Union; they are just declaring that egregious (in their view) federal rules should not apply.  

It’s this second argument of course, that echoes into our time, epitomized by figures such as Becerra for the blue Democrats, and DeSantis for the red Republicans.  

Some will say, of course, that the Constitution’s Supremacy Clause settles this issue—that the states can’t interpose against the federal government.   Of course, the Supremacy Clause was written by the same Madison, who then argued, a decade later, that the states could, in fact, interpose.  Later in his long life, Madison had much more to say on the topic of interposition.  For instance, during the Nullification Crisis of the early 1830s, the then-80-something Madison asserted that the threat from the Sedition Acts was so serious that it justified interposition, whereas the imposing of a mere tariff did not.  Of course, the definition of a justifiable “trigger” for interposition will vary in the eye of the beholder.

Others will say that the Civil War, or the New Deal, or the Supreme Court, has settled the question about the supremacy of the federal government over the states.  

Yet even today, the mostly liberal legal establishment is torn on the issues raised by the resolutions.  On the one hand, the legal establishment mostly applauds the assertion of federal power over the states, that being a legacy of Abraham Lincoln’s victory in the Civil War, including his “new birth of freedom” at Gettysburg.  Yet on the other hand, the resolutions’ vigorous defense of free speech and civil liberties is deeply appealing to the left. 

This tension is illustrated in a 2009 essay by Douglas C. Dow, a professor of political theory, published by the Free Speech Center at Middle Tennessee State University: 

The complex legacy of the resolutions stems from lingering questions as to whether they are best understood as a defense of civil liberties or of states’ rights.  Rather than asserting the principles of free speech and civil protections for aliens not charged with crimes, Jefferson and Madison argued that the power to pass such acts was not properly delegated to the national government by the states.  The tone and language of the resolutions are not that of a newspaper editorial meant to shape public opinion, but rather are constitutional treatises designed to elaborate on essential structures of government. 

So that’s clear enough statement of opinion: If the resolutions defend free speech and civil liberties, they’re good.  But if they defend states’ rights, they’re not so good—and quite possibly bad. 

Yet 13 years after Dow’s essay, in the wake of wokeness, it can’t be said that the contemporary left completely champions free speech.  Why is this?  Because today’s left, including the American Civil Liberties Union, is often preoccupied with opposing what it deems to be hate speech

Yet still, most liberals will be stalwart in vindicating free speech.  And at the same time, the experience of the Trump presidency has convened many, if not most, on the left that diversity among the states is a good thing.  After all, it was Supreme Court Justice Louis Brandeis, a lion of liberalism, who back in 1932 championed the states as "laboratories of democracy."  By now, nine decades later, just about everyone has come to see that Alabama and California can't and won't be governed the same way, for the simple reason that Alabamans and Californians are so different.  And they aren't about to converge. 

So much of the left has now joined the right, albeit without quite admitting it, in wishing to use the power of the states to oppose—dare we say interpose?—unwanted federal policies.  Of course, left-leaning states oppose different federal policies than do right-leaning states, and yet as they say, sauce for the goose is sauce for the gander.  So if the left says it’s fine for a blue state to interpose against the federal government on behalf of, say, sanctuary cities, it’s hard to come up with anything more than a situationalist argument for saying that a red state can’t interpose on behalf of abortion restrictions.  

Thus we come to see why both blue and red are at peace with at least some of the ethos of the Virginia and Kentucky Resolutions.  At one time or another, folks everywhere in America have felt threatened by federal restrictions on speech or expression.  This goes for today’s red (Kentucky), today’s purple (Virginia), and today’s blue (John Adams’ home state of Massachusetts).  Indeed, the commonality of the feeling of dissonance goes beyond speech and expression.  Be they fans of Becerra or of DeSantis, they both accept that the states are so divergent that they have a right to affirmatively defend state policies that express those divergences.  

A Case in Point: One Size for Health Does Not Fit All

We might close on a particular issue that connects, in a sort of matter/anti-matter sense, Becerra and DeSantis.  As the federal secretary of health and human services, Becerra oversees the Food and Drug Administration.  During the Covid crisis, the FDA joined with an independent agency, the Centers for Disease Control and Prevention, to enforce the various rules concerning masks and vaccines.  As we have seen, it’s this cluster of rules that is the object of DeSantis’ new legal assault.  And while we can’t yet know the legal outcome of DeSantis’ actions, we can already see the political impact: the Florida governor has rallied the red-state right.  

That is, just as Madison and Jefferson rallied the Democratic- Republicans in 1798 with an eye to victory in 1800, so DeSantis is rallying the Republicans (in geographical terms, the obvious descendants of the Democratic-Republicans of yore) in 2022 hoping for a victory in 2024. 

Back in February, this author argued that healthcare was a natural issue in which the states could and should assert their sovereign rights.  Just this month, in the wake of DeSantis’ attacks on the federal health edifice, I re-upped the argument.  

It is, I believe, counterproductive for the FDA, joined by the CDC, to have a vise-grip on American healthcare.  That is, we shouldn’t allow these old-paradigm bureaucracies to oversee the $5 trillion national health expenditure, to say nothing of the health of all Americans.  Are we really to believe that the FDA/CDC know what’s best for us as individuals?   No doubt some Americans have that faith, but many of us do not.  And happily, this diversity of opinion can be expressed in the diversity inherent in federalism.  

In that spirit, many of us would love to see a state such as Florida interpose against the federal healthcrats.  At the moment, that might seem to be a right-wing position, but if Republicans win the White House in 2024 and start applying their views to, say, reproductive matters, the Democrats will quickly rediscover their own progressive enthusiasm for interposition. 

I am confident that I speak for many creative forward-lookers on the libertarian left when I say that the FDA/CDC being in charge of health is as if the Postal Service were in charge of all shipping and communication.  So sure, we want to liberate healthcare from this droopy duopoly of power, the FDA and CDC.  And if that's a legal and constitutional issue in 2022, it ought to be a political issue, a voting issue, in 2024. As in, sweeping out of power the stubborn of overweening federal power, just as Jefferson swept out Adams.  The states can't fulfill their optimum destiny--as the laboratories of democracy, prosperity, and technology--if the feds have put on top of them a wet, woke, blanket. 

Even in the 21st century, a wide spectrum of Americans draw no small degree of inspiration from arguments made in the 18th century.  Thanks again, James Madison.