Today, the Supreme Court holds the ability to declare any law—state or federal—unconstitutional through its power of judicial review. The framers of the Constitution had other ideas, however: James Madison famously proposed the federal negative, which would allow Congress to nullify state laws. Perhaps Madison was on to something—is Congress a better body to empower with nullification? Below is a concise history of Madison's Federal Negative, and an argument in favor of vesting it in Congress.


In the 1780s, the United States experienced a period of political chaos and economic recession1,2 that James Madison attributed to adverse state actions and excessive state power under the Articles of Confederation.3 During this period of chaos and unrest, some historians estimate that the per capita GNP of the United States fell by more than half.4 Among the state actions of the 1780s that Madison considered “destructive of the general harmony”5 were treaty violations and interstate tariffs.6 In response to these transgressions, James Madison and Charles Pinckney proposed in 1787 to include an absolute federal negative in the new Constitution7 that would allow Congress to veto any state law.8 Including the absolute federal negative in the Constitution and vesting this power in Congress would empower the federal government to annul the adverse state actions—both economic and political—that plagued the United States under the Articles of Confederation and protect the people from a “tyranny of the majority.”9

Madison’s negative would have helped to improve the political and economic disarray of the era by allowing the federal government to intervene in state actions it considered counterproductive or adversarial.10,11 Under the Articles, states consistently acted in violation of the Treaty of Paris12 and in response the British continued to house troops in frontier forts13 and incite conflict with natives.14 Furthermore, considering the legislative body powerless, the British refused to negotiate with Congress.15 Madison’s negative would not only have enabled the federal government to veto these state infringements (and allay British retaliation),16 but would also have solidified the perception of Congress’ power on the international stage.7 Additionally, Madison’s negative would have allowed for the federal government to veto the interstate tariffs—most notably between New York, New Jersey, and Connecticut—that stalled economic recovery following the Revolution.18 In effect, Madison’s negative would have forced the nation to act as a unified whole and lessened the political and economic disarray.

In addition to consolidating state actions, vesting the power of Madison’s federal negative in Congress would have helped to prevent a “tyranny of the majority”19 in the states. For example, if the Virginia majority attempted to make Christianity its state religion—as it tried in 178420—the federal government would be able to exercise the negative and protect the non-Christian minority. Of course, Madison also considered the danger of the negative itself coming under the control of a tyrannical majority, but wrote in “Vices of the Political System of the United States” that “a common interest or passion is less [...] felt [...] by a great than by a small number. The [legislature] becomes broken into a greater variety of interests, of pursuits, of passions, which check each other, whilst those who may feel a common sentiment have less opportunity of communication and concert.”21 By Madison’s logic, vesting the negative in Congress—a large, democratic, and diverse bicameral federal legislature22 whose members hold allegiance to a wide variety of constituencies—best protected the rights of the minority.23

While Madison’s negative would have addressed the economic and political difficulties of the 1780s and protected the rights of the minority, neither Madison’s original proposal nor the Virginia legislature’s more limited version would be included in the Constitution.24 However, the Supreme Court did assert in Marbury v. Madison the power of judicial review,25 which allowed it to veto state laws on grounds of unconstitutionality.26 Still, the absolute federal negative in Congress remains purely hypothetical.27

Cover: James Madison via Wikimedia Commons.


Endnotes

  1. David Moss and Marc Campasano, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” Harvard Business School, February 2016,

  2. Nancy A. Hewitt and Steven F. Lawson, Exploring American Histories (Boston: Bedford/St. Martin’s, 2017), 207.

  3. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 1.

  4. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7-8.

  5. Quoted in Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 10.

  6. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 10.

  7. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 12.

  8. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 1.

  9. Quoted in “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 10.

  10. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 1.

  11. Importantly, this is a characteristic specifically of the absolute federal negative. The limited version would require some sort of Constitutional justification for the veto, which may not always be present (even in adverse behavior, unless by stretching the elasticity clause).

  12. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7.

  13. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7.

  14. Hewitt and Lawson, Exploring American Histories, 213.

  15. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7.

  16. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 11.

  17. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7.

  18. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 7.

  19. Quoted in “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 10.

  20. Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 9.

  21. Quoted in Moss, “James Madison, the 'Federal Negative,' and the Making of the U.S. Constitution,” 21.

  22. U.S. Constitution, art. 1, sec. 2.

  23. See Madison’s Federalist 10 for greater discussion about the tendencies of factions and other groups in legislative bodies and how they relate to minorities.

  24. Hewitt and Lawson, Exploring American Histories, 220.

  25. Hewitt and Lawson, Exploring American Histories, 255.

  26. Hewitt and Lawson, Exploring American Histories, 256.

  27. Hewitt and Lawson, Exploring American Histories, 220.