INTERPOSITION

State governments have occasionally declared that acts of Congress are unconstitutional and have sought to "interpose" their authority between their citizens and the national government. This interposition has taken several forms, from refusals to cooperate with federal administration to the purported nullification of federal acts, secession, and even armed rebellion. james madison and thomas jefferson lent their prestige to the general notion of interposition when they wrote, respectively, the virginia and kentucky resolutions in opposition to the alien and sedition acts of 1798. New England Federalists claimed powers of interposition in opposition to trade embargoes and the federal use of state militias during the War of 1812. Acting on the state sovereignty theory of john c. calhoun in 1832, South Carolina declared two tariff acts "null, void, and no law." Antislavery legislatures enacted personal liberty laws to obstruct federal fugitive slave laws. Long after the civil war, southern legislatures attempted "massive resistance" to school desegregation. And in 1970 Massachusetts sought to prohibit the conscription of its citizens for the vietnam war.

Although these and other attempts express no single constitutional philosophy, interposition is usually associated with the theory that the sole basis of the Union is the written Constitution, not a common culture or other integrative forces; that the people who created the Constitution were members of separate and still sovereign states, not a national community; and that the Constitution is a mere contract among the states for establishing a general government with but few, well-defined objectives. From these premises it was supposed to follow that individual states could interpose to protect their reserved powers. To Calhoun and his followers in the 1830s interposition included nullifying federal laws and, in extreme cases, secession. The nullificationists cited the Virginia and Kentucky Resolutions and presented their position as consistent with the Constitution. Madison, then in his eighties, bitterly opposed and sought to disclaim paternity of any nullificationist theory. He insisted that his original version of interposition sanctioned no more than nonbinding state expression of constitutional opinion as steps toward arousing the public or amending the Constitution. This kind of interposition was fully consistent with national supremacy, the divisibility of sovereignty between nation and states, and a perpetual union. The nullificationists, said Madison, were asserting a right of revolution, not a constitutional right.

Scholars point out that an extended constitutional debate would hardly have been necessary in the 1790s if all that Madison had then contemplated was a state's right to express and invite other states to express nonbinding opinions. But, Madison's candor aside, his final version of interposition need not have been toothless. The history of interposition shows that the states' role in the amending process gives even the nonbinding opinions of a small number of states a special potential for awakening public interest in constitutional questions and undermining the perceived legitimacy of national policy. Practiced with sufficient regularity by enough states, the tamest kind of interposition might have had a strong influence on the pace and direction of constitutional change.

Sotirios A. Barber
(1986)

(see also: Theories of the Union.)

Bibliography

Corwin, Edward S. 1912 National Power and State Interposition. Michigan Law Review 10:535–551.

Kilpatrick, James Jackson 1957 The Sovereign States: Notes of a Citizen of Virginia. Chicago: Henry Regnery Co.