Recapturing Madison's Constitution:
Federalism without the Blank Check
Alex Kozinski and Steven A. Engel
James Madison spent the last six years of his life troubled by a national debate over federalism. On the one side stood the “nullifiers,” who claimed that the Tariff of 1828 was unconstitutional and that the states, as sovereign entities, retained the right to ignore it, or even secede from the Union. On the other side were the nationalists, who argued that sovereignty resided only in the federal government and that the states had no authority to question its dictates. Madison feared the nullifiers much more than the nationalists, but the old man was convinced that both camps misunderstood the government that his generation had established. The nation must not forget, he warned, that the Constitution had set in motion a regime “so unexampled in its origin, and so complex in its structure” that the traditional “political vocabulary” of sovereignty could not apply. 1 The Founders had divided sovereignty between two governments, leaving the federal and state governments each supreme in their respective spheres.
The one thing Madison refused to do during his last days was to release his notes on the Constitutional Convention, which he had tirelessly recorded more than forty years before. The Convention had deliberated in secret; so to many Americans of his time, Madison's notes were a buried treasure of constitutional wisdom. Madison refused requests that he release them during the nullification crisis, fearing that the public might then read them with partisan eyes. Instead, he repeated his desire to postpone their publication until after his death, when no one could malign his motives for publishing them. Madison hoped that the notes would be regarded as a gift to the people of the United States.
Well, not exactly a gift. Madison was also convinced, like some contemporary public figures, that private publishers would pay big money for his memoirs. Madison expected that his wife, Dolly, and