State Law, Federalism, and the Problem of Repugnancy after 1787

This paper examines the ways in which the federal system managed the resolution of conflicts between state and national laws in the years after the Constitutional Convention. During the Constitutional Convention of 1787, leading theorists of federalism such as James Madison and Alexander Hamilton insisted that the only way to maintain ‘the order and harmony of the political system’ was to provide for a national veto over all state legislation. Ultimately, however, the Convention abandoned this measure, hoping instead that dividing powers between the federal and state governments would prevent conflicting legislation across jurisdictions. They did not provide a clear mechanism to resolve such differences in the constitutional text. Historians have examined in detail some of the ways such conflicts were later addressed, including judicial review, and state protests against federal laws, such as the Virginia and Kentucky Resolutions. They have, however, left unexplored the attempts of both the federal and state governments to avoid conflict in the first place, by adapting their laws to suit one another through an ongoing process of negotiation.

From the beginning of the federal union, the relationship between the state and federal legislatures was defined not only by combat, but also by consent. In the years after 1789, as Congress began the work of legislating for the new nation, the states adapted their constitutional and legal systems to the new framework embodied by the Constitution and federal statute. Some states chose to write new constitutions in the 1790s, but all had to alter pre-existing laws, institutions, and structures in order to conform to federal policy. This paper will argue that the necessity of state cooperation in the enforcement of federal law allowed state legislatures to participate in the federal system on their own terms, rather than simply obeying the orders of Congress.