Debate on National Veto of State Laws

Image: The Virginia Constitutional Convention of 1829-30. Catlin, George. (1830) New York Historical Society Museum and Library. https://emuseum.nyhistory.org/objects/40546/the-virginia-constitutional-convention-of-182930?ctx=e937c6e50006a31db956baca64c499ec3e961cdc&idx=4
In arguing against a proposal to empower Congress to veto state laws, Elbridge Gerry expressed his concern that “the national legislature with such a power may enslave the states.” James Wilson, however, in defending the proposal, did not perceive that this power would pose any threat to state governments, arguing, “what danger is there that the whole will unnecessarily sacrifice a part?” Which of these views about the consequences of a congressional veto of state laws is better grounded?
Delegates to the constitutional convention declined to empower Congress to veto state laws, despite James Madison’s support for this proposal prior to the convention Letter to George Washington and during the convention. However, the convention approved the supremacy clause, which was understood as authorizing the federal judiciary to invalidate state laws. What are the advantages and disadvantages of relying on the federal judiciary to invalidate state laws rather than authorizing Congress to do so?

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Introduction

James Madison (1751–1836) made clear prior to the federal constitutional convention, on multiple occasions during the convention, and then again after the convention, that he strongly supported allowing Congress to veto state laws. He thought this power was “absolutely necessary to a perfect system” as a way of constraining the power of state governments. Despite repeated efforts to persuade the convention to empower Congress to veto state laws, Madison was unsuccessful, in part because of the persuasive force of arguments advanced by critics such as Elbridge Gerry (1744–1814) and Gunning Bedford (1747–1812).

Although they declined to grant Congress a veto over state laws, the delegates crafted Article I, section 10 of the Constitution, which prohibits states from enacting certain types of laws, and eventually approved the supremacy clause, Article VI, which declares: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state to the contrary notwithstanding.” At various points, delegates indicated their expectation that the federal judiciary, especially the Supreme Court, would act pursuant to this clause to invalidate state laws inconsistent with the U.S. Constitution or federal law.

Sources: The Records of the Federal Convention of 1787, vol. 1 (New Haven: Yale University Press, 1911), https://oll.libertyfund.org/title/farrand-the-records-of-the-federal-convention-of-1787-vol-1#lf0544-01_head_107; Debates in the Federal Convention of 1787 by James Madison, a Member, ed. Gordon Lloyd (Ashland, OH: Ashbrook Press, 2014).


In Committee of the Whole. On a reconsideration of the clause giving the national legislature a negative on such laws of the states as might be contrary to the Articles of Union, or treaties with foreign nations; Mr. Pinckney1 moved “that the national legislature should have authority to negative all laws which they should judge to be improper.” He urged that such a universality of the power was indispensably necessary to render it effectual; that the states must be kept in due subordination to the nation; that if the states were left to act of themselves in any case, it would be impossible to defend the national prerogatives, however extensive they might be on paper; that the acts of Congress had been defeated by this means; nor had foreign treaties escaped repeated violations: that this universal negative was in fact the cornerstone of an efficient national government; that under the British government the negative of the Crown had been found beneficial, and the states are more one nation now, than the colonies were then.

Mr. Madison2 seconded the motion. He could not but regard an indefinite power to negative legislative acts of the states as absolutely necessary to a perfect system. Experience had evinced a constant tendency in the states to encroach on the federal authority; to violate national treaties; to infringe the rights and interests of each other; to oppress the weaker party within their respective jurisdictions. A negative was the mildest expedient that could be devised for preventing these mischiefs. The existence of such a check would prevent attempts to commit them. Should no such precaution be engrafted, the only remedy would be in an appeal to coercion. Was such a remedy eligible? Was it practicable? Could the national resources, if exerted to the utmost, enforce a national decree against Massachusetts, abetted, perhaps, by several of her neighbors? It would not be possible. A small proportion of the community, in a compact situation, acting on the defensive, and at one of its extremities, might at any time bid defiance to the national authority. Any government for the United States, formed on the supposed practicability of using force against the unconstitutional proceedings of the states, would prove as visionary and fallacious as the government of Congress. The negative would render the use of force unnecessary. The states could of themselves pass no operative act, any more than one branch of a legislature, where there are two branches, can proceed without the other. But in order to give the negative this efficacy, it must extend to all cases. A discrimination would only be a fresh source of contention between the two authorities. In a word, to recur to the illustrations borrowed from the planetary system, this prerogative of the general government is the great pervading principle that must control the centrifugal tendency of the states; which, without it, will continually fly out of their proper orbits, and destroy the order and harmony of the political system.

Mr. Williamson3 was against giving a power that might restrain the states from regulating their internal police.

Mr. Gerry4 could not see the extent of such a power, and was against every power that was not necessary. He thought a remonstrance against unreasonable acts of the states would restrain them. If it should not, force might be resorted to. He had no objection to authorize a negative to paper money and similar measures. When the Confederation was depending before Congress, Massachusetts was then for inserting the power of emitting paper money among the exclusive powers of Congress. He observed that the proposed negative would extend to the regulations of the militia, a matter on which the existence of the state might depend. The national legislature, with such a power, may enslave the states. Such an idea as this will never be acceded to. It has never been suggested or conceived among the people. No speculative projector—and there are enough of that character among us, in politics as well as in other things—has, in any pamphlet or newspaper, thrown out the idea. The states, too, have different interests, and are ignorant of each other’s interests. The negative, therefore, will be abused. New states, too, having separate views from the old states, will never come into the Union. They may even be under some foreign influence; are they in such case to participate in the negative on the will of the other states?

Mr. Sherman5 thought the cases in which the negative ought to be exercised might be defined. He wished the point might not be decided till a trial at least should be made for that purpose.

Mr. Wilson6 would not say what modifications of the proposed power might be practicable or expedient. But, however novel it might appear, the principle of it, when viewed with a close and steady eye, is right. There is no instance in which the laws say that the individual should be bound in one case, and at liberty to judge whether he will obey or disobey in another. The cases are parallel. Abuses of the power over the individual persons may happen, as well as over the individual states. Federal liberty is to the states what civil liberty is to private individuals; and states are not more unwilling to purchase it, by the necessary concession of their political sovereignty,  than the savage is to purchase civil liberty by the surrender of the personal sovereignty which he enjoys in a state of nature. A definition of the cases in which the negative should be exercised is impracticable. A discretion must be left on one side or the other—will it not be most safely lodged on the side of the national government? Among the first sentiments expressed in the first Congress, one was that Virginia is no more, that Massachusetts is no more, that Pennsylvania is no more, etc.—we are now one nation of brethren—we must bury all local interests and distinctions. This language continued for some time. The tables at length began to turn. No sooner were the state governments formed than their jealousy and ambition began to display themselves; each endeavored to cut a slice from the common loaf, to add to its own morsel, till at length the Confederation became frittered down to the impotent condition in which it now stands. Review the progress of the Articles of Confederation through Congress, and compare the first and last draft of it. To correct its vices is the business of this Convention. One of its vices is the want of an effectual control in the whole over its parts. What danger is there that the whole will unnecessarily sacrifice a part? But reverse the case, and leave the whole at the mercy of each part, and will not the general interest be continually sacrificed to local interests?

Mr. Dickinson7 deemed it impossible to draw a line between the cases proper, and improper, for the exercise of the negative. We must take our choice of two things. We must either subject the states to the danger of being injured by the power of the national government, or the latter to the danger of being injured by that of the states. He thought the danger greater from the states. To leave the power doubtful would be opening another spring of discord, and he was for shutting as many of them as possible.

Mr. Bedford,8 in answer to his colleague’s question, where would be the danger to the states from this power, would refer him to the smallness of his own state, which may be injured at pleasure without redress. It was meant, he found, to strip the small states of their equal right of suffrage. In this case Delaware would have about one-ninetieth for its share in the general councils; whilst Pennsylvania and Virginia would possess one-third of the whole. Is there no difference of interests, no rivalship of commerce, of manufactures? Will not these large states crush the small ones, whenever they stand in the way of their ambitious or interested views? This shows the impossibility of adopting such a system as that on the table, or any other founded on a change in the principle of representation. And after all, if a state does not obey the law of the new system, must not force be resorted to, as the only ultimate remedy in this as in any other system? It seems as if Pennsylvania and Virginia, by the conduct of their deputies, wished to provide a system in which they would have an enormous and monstrous influence. Besides, how can it be thought that the proposed negative can be exercised? Are the laws of the states to be suspended in the most urgent cases, until they can be sent seven or eight hundred miles, and undergo the deliberation of a body who may be incapable of judging of them? Is the national legislature, too, to sit continually in order to revise the laws of the states?

Mr. Madison observed that the difficulties which had been started were worthy of attention, and ought to be answered before the question was put. The case of laws of urgent necessity must be provided for by some emanation of the power from the national government into each state, so far as to give a temporary assent at least. This was the practice in the royal colonies before the Revolution, and would not have been inconvenient if the supreme power of negativing had been faithful to the American interest, and had possessed the necessary information. He supposed that the negative might be very properly lodged in the Senate alone, and that the more numerous and expensive branch therefore might not be obliged to sit constantly. He asked Mr. Bedford, what would be the consequence to the small states of a dissolution of the Union, which seemed likely to happen if no effectual substitute was made for the defective system existing? And he did not conceive any effectual system could be substituted on any other basis than that of a proportional suffrage. If the large states possessed the avarice and ambition with which they were charged, would the small ones in their neighborhood be more secure when all control of a general government was withdrawn?

Mr. Butler9 was vehement against the negative in the proposed extent, as cutting off all hope of equal justice to the distant states. The people there would not, he was sure give it a hearing.

On the question for extending the negative power to all cases, as proposed by Mr. Pinckney and Mr. Madison—Massachusetts, Pennsylvania, Virginia (Mr. Randolph and Mr. Mason, no; Mr. Blair, Doctor McClurg and Mr. Madison, aye; General Washington not consulted), aye—3; Connecticut, New York, New Jersey, Maryland, North Carolina, South Carolina, Georgia, no—7; Delaware, divided (Mr. Read and Mr. Dickinson, aye; Mr. Bedford and Mr. Basset, no).

Footnotes
  1. 1. Charles Pinckney (1757–1824), South Carolina
  2. 2. James Madison (1751–1836), Virginia.
  3. 3. Hugh Williamson (1735–1819), North Carolina.
  4. 4. Elbridge Gerry (1744–1814), Massachusetts.
  5. 5. Roger Sherman (1721–1793), Connecticut.
  6. 6. James Wilson (1742–1798), Pennsylvania.
  7. 7. John Dickinson (1732–1808), Pennsylvania.
  8. 8. Gunning Bedford (1747–1812), Delaware.
  9. 9. Pierce Butler (1744–1822), South Carolina.
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