Christian G. Fritz (University of New Mexico School of Law) has posted Interposition and the Heresy of Nullification: James Madison and the Exercise of Sovereign Constitutional Powers (First Principles: Foundational Concepts to Guide Politics and Policy, No. 41, pp. 1-17, February 2012) on SSRN. Here is the abstract:
-
Political arguments frequently use history for justification. Invariably, however, such efforts are less about taking the past on its own terms than the desire to make symbolic historical references that resonate with modern audiences in order to achieve particular political objectives, whether liberal or conservative. American politics today provides a good example of this practice, particularly in the invocation of the doctrine of nullification and secession as legitimate constitutional options supposedly sanctioned in the thought of such Federal Framers as James Madison. This essay explains why Madison emphatically rejected the attempt by a single state to nullify national laws, while still entertaining the theoretical possibility of secession — though with a crucial caveat missing from today’s advocates. Perhaps most significant, this essay recovers the doctrine of interposition as a legitimate constitutional tool in the hands of an engaged and vigilant citizenry.
