Orientation and Getting Started
The Creation of the Constitution
The Road to Philadelphia
Federalism
Congress
Slavery and the Constitution
The Presidency
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Some Other Important Details
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Madison and the Federal Veto

A Federal Veto and Prohibitions on State Powers

One of the most startling innovations introduced into the Virginia Plan was its “federal veto” over state laws. Madison had considered this feature to be vital to the successful transfer of sovereignty from the states to the federal government in the new Constitution. He believed that the power was an important security for the new national government against state encroachments to its authority. But for Madison, it was just as important as a security against the unjust laws perpetrated by the state legislatures against their own citizens and the other states. While many of the Framers agreed with Madison’s concerns, he could not convince enough of his colleagues that the federal veto was the best solution for the problem. Ultimately, the Constitutional Convention chose to jettison Madison’s cherished federal veto. But much later in his life, Madison had to admit that other features that were added to the Constitution—especially the prohibitions on state powers and the appellate jurisdiction of the Supreme Court—had been sufficient to solve many of the problems that the federal veto was meant to address.

Madison and the Federal Veto

Madison’s Virginia Plan, taken as a whole, was a bold proposal for a new system of government. But probably one of the most audacious features in it was the “federal veto” over state legislation. And if Madison had stuck to his original idea, the proposal would have been even more audacious than what was presented to the other delegates. Writing to Edmund Randolph more than a month before the Convention was due to open, he unfolded his designs: “Let [the national government] have a negative in all cases whatsoever on the Legislative Acts of the States.” Those fatal words, “in all cases whatsoever,” would have been immediately recognizable to the recently independent American states. As Madison went on to explain, it was the same power that the king of Great Britain had previously exercised over the colonies. This power, he believed, would be the “middle ground” between state sovereignty and a consolidated republic. He believed it was both “essential and the least possible abridgement of the State Sovereignties.” Over the course of the Convention, most of the other Framers came to believe that less abridgement of state sovereignty was not only possible, but far more desirable. 

In order to understand why this feature seemed so crucial to Madison, it is necessary to understand both how he diagnosed the problems of the Confederacy and how he envisioned their solution. In his “Vices of the Political System of the United States,” Madison outlined two broad problems with legislation being passed by the states. First, state laws encroached on the federal authority and violated the rights of the other states. Second, they often resulted in oppressive or inequitable policy within the states themselves. Madison believed that the best remedy would be to allow a general legislature to have the final say on all laws, rather than allow state lawgivers to exercise that supreme power.

A National Legislature to Judge Laws

Why would a national legislature be any more qualified to judge the merits of a law than a state legislature? It was at this point that Madison employed what would become his most famous argument, the one that he later used in Federalist No. 10. A legislative body that represented a large territory and a more numerous population would naturally encompass a greater number and variety of local interests. These numerous and competing interests would prevent any one of the merely local and self-interested aims from attaining a majority. Individual members of a large representative body would not necessarily act with greater wisdom or justice than the members of a smaller body, but the dynamics of their collective deliberations would be more likely to avoid the worst consequences of a small and provincial legislature. Therefore, a national legislature could be trusted to judge the merits of state laws with greater impartiality than state legislators, and the power of a federal veto could safely be lodged in this body. 

Nonetheless, it appears that Madison could not seem to persuade even his fellow Virginians that a properly constituted federal Congress would be trustworthy enough to judge all state laws, because the Virginia Plan proposed a federal veto that was far less expansive (and far less volatile) than the one that Madison had originally urged to Randolph and Washington. Instead of a veto “in all cases whatsoever,” the Virginia Plan would have authorized the national legislature “to negative all laws passed by the several states contravening, in the opinion of the national legislature, the Articles of Union.” In other words, this power would only authorize Congress to veto state legislation whenever Congress determined that it encroached on federal authority, not in cases when Congress concluded that such laws were unjust to a state’s own citizens or the citizens of other states.