The first of a series will begin tomorrow, the Ides of March (the 15th), an appropriate time to initiate an investigation of interposition and federalism in America. On that date in 44 B.C., Julius Caesar was slain for his offences against the Roman Republic. It was a futile act of desperation. The empire was not defeated, but the event remained a symbol for millennia of resistance to tyranny and concentrated power. This series will attempt to investigate the spirit of that resistance as it relates to our federal system of states as counter or makeweights to centralization through the instrument of interposition: what is its history and constitutional forms, and whither should it go now?
In a recent spate of books, attention has been given to the place of the states in our federal union. More particularly, the subject of nullification has been the focus of Thomas Woods’ latest works, one of which is specifically by that name. In that book, Woods delves into certain key aspects of America’s constitutional history, but quickly focuses on what is a fairly specific subset of a much larger category of constitutional ideas embraced by the term, interposition.
Interposition is where a state or other organs of local governance and/or civil society attempt to intercede between the people and an act of the federal government that is deemed unjust or unconstitutional. This can take many forms, moving from the merely declaratory and/or uncooperative to the more extreme modes of obstruction or even interdiction. Nullification occupies the last of these categories. It is the outer edge of the continuum. It attempts to provide legal grounding for a state to directly obstruct enforcement of an offending federal measure, and is of all the instruments available to a state or people, the most dangerous and problematic.
Woods’ most important contribution is to republish some of the essential primary texts in this tradition. But the critical distinctions among the various forms of interposition are not always kept as distinct as one might wish. His opening definition equates nullification with a state’s refusal to enforce (p. 3). In point of fact, the first formal act of nullification went much further than that.
South Carolina’s act of November 24, 1832 actually bound state officials to obstruct federal authorities, asserting that “it shall be the duty of the legislature to adopt such measures and pass such acts as…to prevent the enforcement and arrest the operation of the said acts and parts of acts of the Congress of the United States within the limits of this state….” The provision even went on to block any appeal to the Supreme Court.
Relying on Abel Upshur’s thinking about nullification in 1833, Woods affirms Upshur’s judgment that nullification is the “only means” by which a state’s constitutional standing, what he refers to as the principles of 1798 “can be enforced.” Yet, Woods’ own examples reveal that substantial success is possible far short of direct confrontation between federal and state authorities. By jumping to this last most extreme mode of engagement, a much wider array of actions embraced by interposition tends to be obscured in the rush to a final resolution. That rush could prove an unfortunate miscalculation strategically and politically. Such a leap could well be disastrous if the states are found unequal to the ordeal. The effort here will be to place a stronger emphasis on the less directly confrontational forms of redress. These included both informal actions arising from civil society, as well as the more formal modes of declaratory and non-cooperative types of state interposition.
The broader doctrine of interposition has a long and respectable history whose roots reach down, not so much to the southern, as to the northern states, a point that Woods also notes. The word itself is older than that of nullification, and comes to us from both the Federalist Papers and Madison’s Virginia Resolves. Its basis can be located in the very documents meant to support the original understanding of federalism in the Constitution as well as in certain of the acts of ratification by the states. More pertinent for our present consideration, we find it was first put forward to defend practices and rights fully consonant with liberty in its widest sense.
In tracing this idea, it quickly becomes apparent that the ultimate meaning of the Constitution is to be grounded not in any particular founder as “law giver,” nor is it to be drawn from only one side in the debates over ratification. The Constitution was a product of both Federalists and Antifederalists. The former had to address the concerns of the latter to secure passage of the document. These public articulations form the essential ground of legal opinion. They shaped the composition as well as the first ideas about the meaning of the Constitution, and it is from this interchange that we will find the solid basis on which the idea of interposition was established.