James Madison’s federalism flip-flop reveals
just how powerful the states really are.
Just under six weeks before the start of the
Philadelphia convention in 1787,
James Madison sent a letter to George Washington
with his ideas on how a new government should be structured.
In what came to be known as the Virginia plan,
Madison proposed a form of government far more
centralized than what would eventually be
adopted by the Convention,
and ratified by the people of the several states.
In one notable section of his letter,
Madison told Washington that a national
government should have a veto power over all
acts of the state governments.
While we might think of this as an aggressive
power, Madison thought of it as defensive.
He wrote:
Without this defensive power, every positive
power that can be given on paper will be
evaded & defeated.
In short, Madison knew then that states had the
power to defeat federal programs.
The final version of his proposal was included
as resolution #6 when Edmund Randolph presented the
Virginia Plan on May 29th.
Madison, Randolph and others also called for the
new government to have power to use the “full
fource of the Union” against any state that didn’t comply.
This plan was rejected by the Convention - and a
national veto never made it into the Constitution.
Less than one year later though, Madison was
singing a different tune.
In Federalist 46, one of a series of essays
published to help sell ratification of the
Constitution in New York,
Madison made the case that the ability to evade
and defeat federal measures was a benefit for the states.
In what has come to be known as the anti-commandeering doctrine
Madison pointed out that if individuals and
states merely “refuse to cooperate with officers
of the Union,”
they have the power to undermine and end federal
programs - Constitutional or not.
Did Madison simply flip-flop?  Did he have a
change of heart?  Or did he just have a willingness
to give up some features he wanted in order to
get the document ratified?
I honestly don’t know the answer, but will
continue looking for clues.
Either way, here’s the bottom line:
Feature or flaw, states are not required to help
enforce federal acts or regulatory programs.
Opting out of them is a powerful strategy
to bring them to an end.
