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Constitution's Father Wears Clashing Suits

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On Friday, the nation celebrates Constitution Day—the 223rd anniversary of the approval of our country's founding document by the convention of state delegates in Philadelphia. This year has witnessed a heightened interest in the Constitution, evidenced not only in the rise of tea party activists, brandishing copies of the Constitution at rallies around the country, but in two major lawsuits moving through the courts.

Those suits represent two sides of James Madison, the "Father of the Constitution," who first thought the nation's basic charter should include a provision to allow Congress to declare state laws unconstitutional, and who later thought the states should have the power to object to federal laws considered unconstitutional. Representing the early Madison is the federal government's lawsuit to declare unconstitutional Arizona's recently enacted immigration law. Representing the latter Madison is a suit being brought by 20 state attorneys general charging that the recently enacted national health care law's insurance mandate is unconstitutional.

Both suits involve important constitutional principles while simultaneously representing political issues that will figure prominently in this fall's midterm elections and beyond. The resort to the courts is one procedural tactic increasingly employed by political forces to highlight their positions, rally their bases and, hopefully, to prevail. But win or lose, the first two objectives are usually achieved in the process of trying.

The likelihood that the Supreme Court will ultimately resolve both suits affirms its wisdom in Marbury v. Madison (1803) in asserting judicial review authority. That decision (plus the supremacy clause and Fourteenth Amendment) has spared the country the kind of direct clashes between our two systems of government that could provoke more civil wars. Madison, who eventually came around to supporting judicial review, would surely be pleased to learn that such controversies under our system of dual federalism can be resolved without national trauma.

How Madison might weigh in on the two pending constitutional lawsuits is anybody's guess given how far U.S. constitutional law has come since its beginning. But it is instructive to review just why Madison evolved from being fearful of states becoming extraconstitutional actors to worrying the federal government might become too powerful.

What Madison saw under the Articles of Confederation was a weak central government dominated by powerful state legislatures that often ran roughshod over the rights of individuals and minorities. He therefore proposed, both at the constitutional convention and again in the First Congress' debates on a Bill of Rights, a national veto of state laws that are contrary to the Constitution's protections. He lost both times.

Less than a decade after the federal government was established, the Federalists enacted the Sedition Act of 1798, which made it a criminal offense "to write, print, utter or publish" any "false, scandalous or malicious" things against the government with the intent to defame, bring it into contempt or disrepute or excite hatred. Madison then realized the federal government could pose as great a danger to civil liberties as the states. He and Thomas Jefferson worked secretly behind the scenes in drafting what are known as the Virginia and Kentucky resolutions denouncing the law and suggesting the states could protest (Madison) or even "nullify" (Jefferson) national laws considered unconstitutional. The resolutions did not spread to other states but helped jump-start the nascent Jeffersonian-Republican party.

Historian Jack Rakove has noted that Madison's changed stance did not represent a reversal of principle but was a consistent recognition that majority tyranny could emanate from any quarter of government. As early as Federalist No. 46, Madison wrote about ways states could resist federal government attempts "to extend its power beyond the due limits."

The administration has challenged Arizona's new immigration law on grounds that it interferes with the federal government's "preeminent authority to regulate immigration matters" derived "from the Constitution and various acts of Congress." States have challenged the health care law's mandates as exceeding any authority delegated to the federal government under the Constitution and violating states' sovereignty and citizens' rights. The sources of these two suits reflect the sum of Madison's twin fears.

The federal government's case on immigration is weakened by the fact that national immigration law specifically recognizes the responsibility of state and local law enforcement to assist the national government by reporting those believed to be in the country unlawfully who are arrested for serious crimes. The states' case on health insurance mandates is weakened by a provision in the law that allows them to avoid federal mandates by setting up their own systems, provided they meet certain federal standards.

Both cases provide useful examples of how our system of dual federalism can produce conflict when laws, rights and responsibilities overlap. Madison would probably nod knowingly that his twin fears are still being raised and tested. The cases should help spur a thoughtful re-examination and debate about first principles and the legitimate roles and realistic capacities of government at all levels. Effective government, based on consent of the governed, can only be assured through such an ongoing process of reappraisal and adjustment.