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The dispute over the Tariff of 1828 marked a turning point for interposition. State legislatures passed resolutions declaring protective tariffs unconstitutional, increasingly using more threatening language that echoed the doctrine of nullification John C. Calhoun advanced in the South Carolina Exposition of 1828. Calhoun’s arguments distorted Madison’s views and transformed traditional sounding the alarm interposition into an option for each state to nullify acts of the national government that it considered unconstitutional. Nullification prompted a national discussion about the nature of the Union, notably in the Webster–Hayne debate in the United States Senate in 1830. Nullifiers quoted the Virginia and Kentucky Resolutions and Madison’s Report of 1800 to justify their constitutional theory, but misunderstood Madison’s theoretical right of the people to interpose in the final resort and overlooked the sounding the alarm interposition of the resolutions. Madison rejected both nullification and secession and tried to explain what he meant by a complex federalism based on divided sovereignty, ultimately failing to correct misconceptions about his resolutions.
The new Constitution had existed for a short time before Madison and others became concerned about constitutional interpretations that were expanding the power of the national government. This early dialogue about federalism centered on what each state viewed as undesirable equilibrium: either forces that would weaken the relative authority of states or forces that would diminish national authority. Secretary of the Treasury Alexander Hamilton’s financial and economic policies were broad expansions of national powers including assuming Revolutionary War debts and establishing a national bank. Anti-Federalists and others viewed these policies as part of a dangerous trend towards national consolidation that would eventually annihilate the states. Southern states, in particular, thought that without constitutional amendments to constrain the powers of a Northern majority, the South would be unable to protect slavery. When Virginia’s legislature passed the nation’s first interposition resolutions and a memorial in 1790 to sound the alarm to other states and Congress, it faced Federalist criticism that it was illegitimately intruding into the federal government’s sphere.
As Americans have monitored federalism, they struggled with how a government based on sovereignty divided between nation and states might function. The Constitution’s shared sovereignty created an inherently dynamic federalism with almost continuous debates over the balance of power, making this testing of the balance of federalism and monitoring government central to the American constitutional order. Many constitutional debates involved the protection of slavery, yet other interests including debt, taxation, and police powers also played vital roles in shaping American federalism. State resistance to the national government utilizing the constitutional tool of interposition arose when the disequilibrium of federalism was most keenly felt and states needed to resist perceived constitutional overreaching by the national government. This state legislative resistance shaped the broader American political conversation about constitutional rights and jurisdiction and this debate over federalism is arguably a strength and not a weakness of the framers’ constitutional design,inviting each generation to determine what the appropriate constitutional balance should be.
The Progressive movement, the New Deal, and America’s involvement in two world wars encouraged sounding the alarm interposition by states, even if not identified as interposition. The explicit invocation of the term “interposition” surfaced in the 1950s by opponents of integration who sought a constitutional basis for white supremacy and racial inequality, particularly in opposition to Brown v. Board of Education of Topeka (1954) in which the Supreme Court rejected ‘separate but equal’ school segregation. After the Supreme Court repudiated interposition and nullification in Cooper v. Aaron (1958), use of interposition and nullification-like efforts resurfaced in resistance to federal laws and policies including: the Patriot Act of 2001, the Real ID Act of 2005, and the Affordable Care Act of 2010. A version of interposition termed “Judicial Federalism” emerged in the 1990s as a constraint on federal legislative power with the “anti-commandeering” principle in Printz v. United States (1997). Moreover, forms of “uncooperative federalism” and neo-nullification have marked recent efforts of states challenging federal policies and laws even as they fall short of nullification.
The Civil War marked the high point of state interposition resistance to the Union or Confederate governments. Sounding the alarm interposition occurred wherever governors and legislators believed their national government had exceeded its powers, particularly with the use of martial law, suspension of the writ of habeas corpus, and wartime conscription. Moreover, Lincoln’s use of emancipation as a war measure was criticized in North and South as going beyond the effort to preserve the Union and instead converting the war into an abolitionist-inspired moral crusade to end slavery and expand Black rights. After the Civil War, opposition mounted in state legislatures in the North and South to the Thirteenth, Fourteenth, and Fifteenth Amendments, Reconstruction policies, racial equality, and enhanced national power. The slogan of states’ rights was adopted by those who denied the outcome of the Civil War and by advocates of white supremacy. By the end of Reconstruction, interposition essentially died out, tainted with the discredited notion of nullification, secession and the Civil War, and lay dormant before its reemergence in the twentieth century.
A series of important lawsuits in the 1820s represented an increasingly stark division in American thinking about the role and authority of the Supreme Court in: Hunter v. Martin, Devise of Fairfax (1814), Martin v. Hunter’s Lessee (1816), McCulloch v. Maryland (1819), and Cohens v. Virginia (1821). That debate over federalism reflected fundamentally different views of the foundation and formation of the Constitution. For John Marshall and other nationally minded Americans, the Constitution had been established as the act of one national people, forming a national government with considerable powers. For states’ rights advocates, the Constitution was a compact of sovereign states, leaving state sovereignty largely intact except for limited and express grants of powers to the national government. Those competing views shaped how each side regarded the role and authority of the Supreme Court, and rhetoric became more extreme as nationalists feared disunion and states’ rights advocates feared the disintegration of state authority, including over slavery.
Presidents Jefferson and Madison’s Republican-backed policies prompted new waves of state interposition. Federalist-dominated state legislatures in New England passed interposition resolutions that protested: Jefferson’s Embargo Acts (1807–1809); United States v. Peters (1809) emphasizing the Supreme Court’s finality over constitutionality; the recharter of the Bank of the United States; and Madison’s efforts to mobilize state militias before the War of 1812. After the controversy over the Alien and Sedition Acts and Jefferson’s election in 1800, Americans might have expected Republicans to advocate strict construction of national powers under the Constitution while Federalists would urge broader powers. However, defenses of states’ rights never belonged exclusively to one political viewpoint or party. Americans debated whether sounding the alarm resolutions and state interposition were legitimate state actions – and some asked if and when they would be justified in more forcefully resisting federal law, notably during the Hartford Convention in 1814 that called for constitutional amendments to reduce the power of Southern states and the repeal of the Three-Fifths Clause.
President Andrew Jackson’s Proclamation of 1832 rejected the South Carolina Ordinance of Nullification and rejected secession as a constitutional right. South Carolina’s legislature passed a Counter-Proclamation that citizens of states owed their chief allegiance to their sovereign state and not the national government and were duty-bound to maintain sovereign states’ rights. Increasingly, Americans failed to find common ground in their understanding of constitutional history. Enforcement of the Constitution’s Fugitive Slave Clause generated important Supreme Court cases such as Prigg v. Pennsylvania (1842) and Ableman v. Booth (1859) as Southern states sought to enforce the Slave Clause through federal legislation such as the Fugitive Slave Act of 1850. Northern states responded by passing personal liberty laws to resist the enforcement of federal laws that would extend the authority of enslavers beyond the South. Southern states considered these personal liberty laws a nullification of federal law and as intended to eradicate slavery. The Kansas–Nebraska Act of 1854 and the election of Abraham Lincoln in 1860 moved the nation beyond interposition towards secession and civil war.
One key feature of the Constitution – the concept of federalism – was unclear when it was introduced, and threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. In their famous essays in The Federalist, Alexander Hamilton and James Madison defended the Constitution and argued that state legislatures would sound the alarm if the national government exceeded its authority. They argued that through interposition state legislatures would effectively check the national government by mobilizing resistance should the government try to overreach. Resolutions passed by legislators could legitimately be considered an expression of the people that could then be shared with the state’s congressional delegation and other state legislatures. Hamilton’s and Madison’s advocacy for state legislatures as monitors of the equilibrium of the two levels of government under the Constitution was a rhetorical argument designed to address the objections of Anti-Federalists. At the time of the ratification debates, both men were deeply distrustful of state legislatures, yet needed to explain how the national government would not overwhelm the states.
Two dominant constitutional issues in the 1790s illustrate the fluid nature of constitutional meaning in the early republic. One issue was whether the Constitution permitted individuals to sue states in federal court. The Supreme Court’s decision in Chisholm v. Georgia (1793) generated widespread state interposition to resist the Court’s broad interpretation of a constitutional clause and resulted in the Eleventh Amendment. A second constitutional issue generating interposition in 1796 was whether President Washington had exceeded his authority in negotiating the Jay Treaty with Great Britain. Federalists argued that the Constitution’s text clearly provided presidential authority while Republicans wanted Congress to speak for the sovereign people and have a vital role in assessing a treaty’s constitutionality. Both sides considered it important to understand the intent of those who drafted and ratified the Constitution and to employ that history in interpreting the document. Yet, this process of constitutional interpretation allowed inferences from the Constitution’s text, reliance on memory, and even thoughts about the framers’ intentions.
The Virginia and Kentucky Resolutions of 1798 that James Madison and Thomas Jefferson authored as a repudiation of the Federalist-backed Alien and Sedition Acts of 1798 are incorrectly viewed as originating the idea that John C. Calhoun would develop into his theory of nullification, that is, the right of an individual state to veto federal law. Although these interposition resolutions lacked support from other states, their interstate circulation mobilized a grassroots movement that helped elect Jefferson as President in 1800 and overturned Federalist policies. Despite their political success, what Jefferson and Madison meant by language they used in the resolutions burdened the future efforts of states seeking to monitor the governmental balancing of powers and resulted in a deeply troubling political legacy. Madison drew subtle but crucial constitutional distinctions, yet failed to explain what he meant by the theoretical right of the sovereign people to interpose in the last resort (expressed in the Virginia Resolution and in his Report of 1800). Moreover, Jefferson’s statements that unconstitutional laws were null and void seemingly foreshadowed the remedy of nullification.
Monitoring American Federalism examines some of the nation's most significant controversies in which state legislatures have attempted to be active partners in the process of constitutional decision-making. Christian G. Fritz looks at interposition, which is the practice of states opposing federal government decisions that were deemed unconstitutional. Interposition became a much-used constitutional tool to monitor the federal government and organize resistance, beginning with the Constitution's ratification and continuing through the present affecting issues including gun control, immigration and health care. Though the use of interposition was largely abandoned because of its association with nullification and the Civil War, recent interest reminds us that the federal government cannot run roughshod over states, and that states lack any legitimate power to nullify federal laws. Insightful and comprehensive, this appraisal of interposition breaks new ground in American political and constitutional history, and can help us preserve our constitutional system and democracy.