ORIGINAL INTENT? ... IT DEPENDS

I've pointed out before how an appeal to "original intent" is usually unproductive and I've found another example in Forrest McDonald's REQUIEM: Variations on Eighteenth-Century Themes.

On pages 196-98, McDonald shows how James Madison contradicted himself on the question of sovereignty. Madison felt that the people of the states had to ratify it, not the state legislatures:

The second dimension of federalism—that relating to the source of sovereignty and the nature of the union—was considerably more complex. At the time of the Revolution, there had been some disagreement as to where sovereignty devolved upon the severance of America's ties with Britain, but the matter was resolved by the way in which the Constitution was established. The Articles of Confederation had been ratified by the state legislatures, but as Madison pointed out during the Federal Convention, a constitution ratified by the legislatures could be construed as being a treaty "among the Governments of Independent States," and thus it could be held that "a breach of any one article, by any of the parties, absolved the other parties" from any further obligation.

To avoid that construction, Madison continued, it was necessary to submit the Constitution to "the supreme authority of the people themselves:' Yet it could not be submitted to the people of the United States as a whole, because the Constitution amended each of the state constitutions in various ways, and if it were adopted by majority vote of the whole people, the people in some states would be altering the constitutions of other states. This, in the nature of things, they could not have the authority to do. Accordingly, the Constitution was submitted for ratification by conventions in each of the states, delegates to which were elected by the people of the several states in their capacities as people of the several states. Madison put it thus in Federalist number 39: "Ratification is to be given by the people, not as individuals composing one entire nation, but as composing the distinct and independent States to which they respectively belong. It is to be the assent and ratification of the several States, derived from the supreme authority in each State, —the authority of the people themselves!" This procedure unmistakably implied that the source of sovereignty was the people of the states, severally, and that the residue of sovereignty which was not committed by them to either the national government or the state governments remained in them—an implication that was subsequently made explicit by the Tenth Amendment. The process of ratification also indicated that the Union was a compact among political societies, which is to say among the people of Virginia with the people of Massachusetts with the people of Georgia, and so on.

In response to the horrible Alien and Sedition Act, in 1798 Madison reverted back to the position that sovereignty resided in the states, not the people of the states:

The opposite view was formulated by James Madison in 1798 and was adopted by the legislature of Virginia in protest against the Alien and Sedition Acts. Conveniently forgetting what he had said earlier, Madison wrote that the federal government had resulted "from the compact to which the states are parties!' From that premise it followed that when Congress enacts statutes that exceed its constitutional authority, the state governments "have the right and are in duty bound to interpose" their own authority between their citizens and the federal government, to prevent the unconstitutional enactments from being enforced. Thomas Jefferson, in the counterpart Kentucky Resolutions, referred to the federal compact as being among "sovereign and independent states!'