Interposition and the Heresy of Nullification: James Madison and the Exercise of Sovereign Constitutional Powers, First Principles: Foundational Concepts to Guide Politics and Policy 41 (February 2012): 1-17
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 Invariably, however, such efforts are less about taking the past on its own terms than the desire to make symbolic historical references that resonate with modern audiences in order to achieve particular political objectives, whether liberal or conservative.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.A Nineteenth Century 'Habeas Corpus Mill': The Chinese Before the Federal Courts in California,
American Journal of Legal History 32 (1988): 347.
In preventing the landing of Chinese ship passengers arriving in San Francisco in the late nineteenth century, federal officials triggered a series of challenges that would preoccupy California's federal courts for nearly a decade. This litigation produced overwhelming docket pressures, created an acrimonious breach within the Ninth Judicial Circuit, and brought the local federal judges under harsh public criticism for frustrating the demands of the anti-Chinese movement. Despite such pressures, San Francisco's federal judges sought to hear Chinese habeas corpus cases with judicial fairness and offered--for a time at least--protection from some of the most virulent opponents of the Chinese. A series of laws restricting Chinese immigration beginning in 1882, served as an immediate cause of disputes over the validity of detaining Chinese petitioners. Two Judges in particular, Ogden Hoffman of the Northern District of California, and Lorenzo Sawyer, the state's presiding circuit judge, played prominent roles in this habeas corpus litigation.Rethinking the American Constitutional Tradition: National Dimensions in the Formation of State Constitutions, California Supreme Court Historical Society Yearbook 1 (1994): 103
In this review essay of David A. Johnson's Founding the Far West: California, Oregon, and Nevada, 1840-1890 (1992), the author locates the book within an overwhelming tradition of studying the American constitutional tradition through the lens of the Federal Constitution in contrast to the comparative neglect of state constitutions. Johnson's work provides a notable departure from the traditional federal focus by examining the political and ideological context of the framing of state constitutions in three far western states. Johnson's achievement lies in his richly textured and nuanced reading of how the three states differed significantly from each other in terms of their political culture and societies, while placing the process of statehood and post-statehood developments within a broader context of western and national events.The American Constitutional Tradition Revisited: Preliminary Observations on State Constitution-Making in the Nineteenth-Century West, Rutgers Law Journal 25 (1994).
Despite its strengths, Founding the Far West overlooks the existence of a shared American tradition and culture in constitution-making that influenced how delegates created state constitutions and articulated. Convention debates for the period reveal that virtually no nineteenth-century constitution-making occurred in isolation but that delegates had access to many constitutional models. Moreover, such constitutional borrowing hardly occurred haphazardly or without serious reflection. One recurring them in that borrowing process recognized that the present generation of constitution-makers should profit from the constitutional experience of other states and incorporate the best ideas from the existing constitutions. In the final analysis, the wide awareness of constitutional models and the discussion of their merits often provided a thoughtful process of comparison and borrowing that helped create a shared culture of American constitutionalism.
This article reexamines the long-standing assumption that American constitutional history and theory is naturally understood through the lens of the Federal Constitution, with the natural consequence of the neglect of the state constitutional experience. The emphasis on the Federal Constitution stems from a belief that it represents the most authentic source, and the most meaningful expression, of written constitutions in America. That conclusion -- with its concomitant justification for neglecting state constitution-making -- follows from three interrelated but highly questionable assumptions. The first is that the Federal Constitution is the paradigm of written constitutions. The second is that state constitution-making has largely been an uncreative, unthinking process of borrowing constitutional provisions from the Federal Constitution and other states. The third assumption is that the critical thinking about constitutions initiated by the American Revolution culminated in the formation of the Federal Constitution. Collectively, these three assumptions have made the Federal Constitution the standard against which all other constitutions are measured, and have dismissed nineteenth-century state constitution making as largely irrelevant to an American constitutional tradition.More of Professor Fritz's publications are at his Selected Works page.
This Article first examines how these three assumptions arise and then challenges their validity in the context of nineteenth-century constitution-making in the American West. The reported debates from nineteenth-century constitutional conventions in the American West reveal much about how delegates approached and performed their duties as constitution-makers as well as the delegates' struggles with the theoretical underpinnings of republican governments. From their perspective, the unquestioned assumptions associated with the present-day emphasis on the Federal Constitution move to the background and the tradition of state constitution-making takes its proper place in the foreground of the American constitutional tradition.