Pero no puede olvidarse el sentido que el propio Madison, tras debatirlo con Jeferson, dio al texto de las dos resoluciones.
Empezando por el Informe de Virginia de 1.800.
Recojo una parte del comentario a la Novena resolución de la Virginia Resolution
http://www.constitution.org/rf/vr_1799.htmThat the good people of this commonwealth, having ever felt and continuing to feel the most sincere affection for their brethren of the other states; the truest anxiety for establishing and perpetuating the union of all; and the most scrupulous fidelity to that Constitution, which is the pledge of mutual friendship, and the instrument of mutual happiness; the General Assembly doth solemnly appeal to the like dispositions in the other states, in confidence that they will concur with this commonwealth in declaring, as it does hereby declare, that the acts aforesaid are unconstitutional;18 and, that the necessary and proper measures will be taken by each, for co-operating with this state, in maintaining unimpaired the authorities, rights, and liberties reserved to the states respectively, or to the people.
That the governor be desired to transmit a copy of the foregoing resolutions to the executive authority of each of the other states, with a request that the same may be communicated to the legislature thereof; and that a copy be furnished to each of the senators and representatives representing this state in the Congress of the United States.
The fairness and regularity of the course of proceeding here pursued, have not protected it against objections even from sources too respectable to be disregarded.
It has been said, that it belongs to the judiciary of the United States, and not the state legislatures, to declare the meaning of the Federal Constitution.
But a declaration that proceedings of the Federal Government are not warranted by the Constitution, is a novelty neither among the citizens, nor among the legislatures of the states; nor are the citizens or the legislature of Virginia, singular in the example of it.
Nor can the declarations of either, whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.
And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches.
The legislatures of the states have a right also to originate amendments to the Constitution, by a concurrence of two-thirds of the whole number, in applications to Congress for the purpose. When new states are to be formed by a junction of two or more states, or parts of states, the legislatures of the states concerned are, as well as Congress, to concur in the measure. The states have a right also to enter into agreements or compacts, with the consent of Congress. In all such cases, a communication among them results from the object which is common to them.
It is lastly to be seen, whether the confidence expressed by the resolution, that the necessary and proper measures would be taken by the other states for co-operating with Virginia in maintaining the rights reserved to the states, or to the people, be in any degree liable to the objections which have been raised against it.
If it be liable to objection, it must be because either the object or the means are objectionable.
The object being to maintain what the Constitution has ordained, is in itself a laudable object.
The means are expressed in the terms "the necessary and proper measures." A proper object was to be pursued, by means both necessary and proper.
To find an objection, then, it must be shown that some meaning was annexed to these general terms, which was not proper; and, for this purpose, either that the means used by the General Assembly were an example of improper means, or that there were no proper means to which the terms could refer.
In the example given by the state, of declaring the alien and sedition-acts to be unconstitutional, and of communicating the declaration to the other states, no trace of improper means has appeared. And if the other states had concurred in making a like declaration, supported, too, by the numerous applications flowing immediately from the people, it can scarcely be doubted, that these simple means would have been as sufficient, as they are unexceptionable.
It is no less certain that other means might have been employed, which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or, they might have represented to their respective senators in Congress their wish, that two-thirds thereof would propose an explanatory amendment to the Constitution; or two-thirds of themselves, if such had been their option, might, by an application to Congress, have obtained a convention for the same object.
These several means, though not equally eligible in themselves, nor probably, to the states, were all constitutionally open for consideration. And if the General Assembly, after declaring the two acts to be unconstitutional, the first and most obvious proceeding on the subject, did not undertake to point out to the other states a choice among the farther measures that might become necessary and proper, the reserve will not be misconstrued by liberal minds into any culpable imputation.
Así como una parte de las notas de Madison sobre la nulificación
http://www.constitution.org/jm/18341200 ... cation.htmAnd what is the text in the proceedings of Virginia which this spurious doctrine of nullification claims for its parentage? It is found in the 3d. of the Resolutions of −98, which is in the following words.
"That in case of a deliberate, a palpable & dangerous exercise of powers not granted by the [constitutional] compact, the States who are parties thereto have a right and are in duty bound to interpose for arresting the progress of the evil, & for maintaining within their respective limits, the authorities rights & liberties appertaining to them."
Now [b]is there anything here from which a single State can infer a right to arrest or annul an act of the General Govt. which it may deem unconstitutional? So far from it, that the obvious & proper inference precludes such a right on the part of a single State; plural number being used in every application of the term.[/b]
In the next place, the course & scope of the reasoning requires that by the rightful authority to interpose in the cases & for the purposes referred to, was meant, not the authority of the States singly & separately, but their authority as the parties to the Constn., the authority which, in fact, made the Constitution; the authority which being paramount to the Constitution was paramount to the authorities constituted by it, to the Judiciary as well as the other authorities. The resolution derives the asserted right of interposition for arresting the progress of usurpations by the Federal Govt. from the fact, that its powers were limited to the grant made by the States; a grant certainly not made by a single party to the grant, but by the parties to the compact containing the grant. The mode of their interposition, in extraordinary cases, is left by the Resolution to the parties themselves; as the mode of interposition lies with the parties to other Constitutions, in the event of usurpations of power not remediable, under the forms and by the means provided by the Constitution. If it be asked why a claim by a single party to the constitutional compact, to arrest a law, deemed by it a breach of the compact, was not expressly guarded agst. the simple answer is sufficient that a pretension so novel, so anomalous & so anarchical, was not & could not be anticipated.
Thus, from the 3d. resoln. itself, whether regard be had to the employment of the term States in the plural number, the argumentative use of it, or to the object namely the "maintaining the authority & rights of each, which must be the same in all as in each, it is manifest that the adequate interposition to which it relates, must be not a single, but a concurrent interposition.
Madison y Jeferson creían que en situaciones absolutamente extraordinarias en las el Gobierno Federal violase la Constitución los derechos de los ciudadanos y de los Estados, estos últimos podían ACTUANDO CONJUNTAMENTE oponerse a esas actuaciones concretas. Por supuesto, para ello era necesario que
todos o la gran mayoría de los Estados estuviesen de acuerdo en considerar anulable una actuación concreta del Gobierno federal. Tanto Madison como Jeferson, como las resoluciones de Virginia y Kentuky que aquí se comentan abominan de la posibilidad de UN ESTADO decida de forma unilateral sobre la aplicación de la ley federal; de hecho, abominan de que la interpretación de la ley de una minoría pueda imponerse a la mayoría.
En este sentido, la doctrina de la nulificación tal y como es tradicionalmente expuesta, y tal y como la recoge el autor Emory M. Thomas,
It followed "that as in all other cases of compact among parties having no common Judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." It may well have been that Jefferson, not perceiving or perhaps not trusting the power of the Supreme Court to be the "common Judge," simply sought to use the states as a locus of power to combat a specific abuse of the Federalist-dominated national government. No matter. Southerners eventually appropriated Jefferson's position that the Union was a compact of sovereign states and reasoned that the ultimate "mode and measure of redress" was secession, withdrawal from the compact. The state rights doctrine survived the "new nation".
No deriva de Jeferson ni de Madison, ni de las resoluciones de Virginia y Kentucky, ya que para unos cada Estado individualmente podía oponerse al pacto Constitucional y para los otros solo una unión concertada de todos los Estados podía justificar esa oposición. No existe un poder soberano de cada Estado superior al poder soberano del Gobierno federal.
En cuanto a la soberanía, una vez más los últimos textos de Madison resultan reveladores
The main pillar of nullification is the assumption that sovereignty is a unit, at once indivisible and unalienable; that the states therefore individually retain it entire as they originally held it, and, consequently that no portion of it can belong to the U. S.
But is not the Constn. itself necessarily the offspring of a sovn. authy.? What but the highest pol: authy. a sovereign authy., could make such a Constn.? a constn. wch. makes a Govt.; a Govt. which makes laws; laws which operate like the laws of all other govts. by a penal & physical force, on the individuals subject to the laws; and finally laws declared to be the Supreme law of the land; anything in the Constn. or laws of the individual State notwithstanding.
And where does the sovy. which makes such a Constn. reside. It resides not in a single state but in the people of each of the several states, uniting with those of the others in the express & solemn compact which forms the Constn. To the extent of that compact or Constitution therefore, the people of the several States must be a sovereign as they are a united people.
In like manner, the constns. of the States, made by the people as separated into States, were made by a sovereign authy. by a sovereignty residing in each of the States, to the extent of the objects embraced by their respective constitutions. And if the states be thus sovereign, though shorn of so many of the essential attributes of sovereignty, the U. States by virtue of the sovereign attributes with wch. they are endowed, may, to that extent, be sovereign, tho' destitute of the attributes of which the States are not shorn.
Such is the political system of the U. S. de jure & de facto; and however it may be obscured by the ingenuity and technicalities of controversial commentators, its true character will be sustained by an appeal to the law and the testimony of the fundamental charter.
Finalmente, también se trata la cuestión del reconocimiento internacional que tanto hemos tratado aquí.
What seems to be an obvious & indefeasible proof that the people of the individual States, as composing the U. States must possess a sovereignty, at least in relation to foreign sovereigns is that in that supposition only, foreign Govts. would be willing or expected to maintain international relations with the U.S. Let it be understood that the Govt. at Washington was not a national Govt. representing a sovereign authy.; and that the sovereignty resided absolutely & exclusively in the several States, as the only sovereigns & nations in our political system, and the diplomatic functionaries at the seat of the Fedl. Govt would be obliged to dose their communications with the Secy. of State, and with new commissions repair to Columbia, in S. C. and other seats of the State Govts. They could no longer, as the Repts. of a sovereign authy. hold intercourse with a functionary who was but an agent of a self-called Govt which was itself but an agent, representing no sovereign authority; not of the States as separate sovereignties, nor a sovereignty in the U. S. which had no existence. For a like reason, the Plenipotentiaries of the U. S. at foreign courts, would be obliged to return home unless commissioned by the individual States. With respect to foreign nations, the confederacy of the States was held de facto to be a nation, or other nations would not have held national relations with it.
En cuanto a los estados extranjeros, incluso la Confederación era considerada como una nación -una única Nación-.
En todo caso, la cuestión no es tanto si es posible argumentar una cosa u otra respecto a la constitucionalidad de las posturas de unos y otros, como no perder de vista que no eran las posturas u opiniones de personas concretas, sino que eran posturas ampliamente difundidas (si bien una siempre fue mayoritaria). Linconl no era un loco que se inventó que los Estados no podían secesionar en un ataque de megalomanía, era continuador de una antigua (tanto o mas que la propia Constitución) y mayoritaria interpretación de la Constitución.
Those heroes that shed their blood and lost their lives... You are now lying in the soil of a friendly country. Therefore rest in peace. There is no difference between the Johnnies and the Mehmets to us where they lie side by side now here in this country of ours...
