from Media Bypass Magazine (January, 1999)
Reviving the Doctrine of Interposition
1998 Marks the Bicentennial of Madison and Jefferson's call for states to resist the federal government
by Dr. Paul Clark
This year is the bicentennial of the Virginia and Kentucky Resolutions, which set forth the fundamental principle that state and local governments must oppose unconstitutional actions of the federal government and even use the local police power to stop federal agents from violating the constitutional rights of local citizens. The Virginia and Kentucky Resolutions, authored by James Madison and Thomas Jefferson, remain to this day one of the most important expressions by the Founding Fathers of how the American system of federalism is supposed to work.
Simply stated, the basic philosophy of the Resolutions is that the American government is a government of specifically enumerated powers; and when the federal government attempts to exercise any power not specifically granted that it acts illegally; local officials as guardians of the Constitution are tasked with the responsibility of insuring that no federal agent is able to carry out these illegal acts within the jurisdiction of the local government. This doctrine is commonly called "interposition." It means that when a federal official attempts to destroy some right or liberty of the people, that local governments must interpose themselves between the federal government and the citizens whose freedom is threatened.
The idea of interposition was not a newly created doctrine by Jefferson and Madison. On the contrary, it was a widely practiced reality throughout most of Western history. One type of interposition with which many people are familiar is the doctrine of sanctuary. Until very recently it was the practice throughout the Western world that a person could seek sanctuary in a church and the civil authorities could not touch that person as long as he remained there. If someone felt he was being unjustly persecuted by civil authorities he could go to the church, and in effect the church would place that person under its protection, interposing itself between the individual and the government.
This sort of sanctuary, however, was not limited to churches. Throughout the middle ages and into the modern period, it would often happen that enemies of the king would place themselves under the protection of a local lord, or local town authorities. Robert Nisbet, one of the most profound critics of modern American government, has pointed out that "Despite the occasional pretensions of centralizing popes, emperors, and kings, the authority that stretched theoretically from each of them was constantly hampered by the existence of jealously guarded liberties' of town, gild, monastery, and village."
The Founding Fathers understood well the lessons of history, that when power is centralized in one location it inevitably leads to tyranny, and that the best protection against this is by dividing power among thousands of state, county, and local governments, and even among private and semi-private associations such as churches and citizen's militias.
Alexander Hamilton in Federalist 17 draws a direct analogy between the medieval system of diffused power and the American system of diffused power, writing: "The separate governments in a confederacy may aptly be compared to feudal baronies; with this advantage in their favor: that from reasons already explained they will generally possess the confidence and good will of the people, and with so important a support will be able effectually to oppose all encroachments of the national government."
Again in Federalist 33 Hamilton gives advice about how local governments should react when the federal government violates the constitution stating that "acts of the larger society [the federal government] which are invasions of the residuary authorities of the smaller societies ... will be merely acts of usurpation, and will deserve to be treated as such."
In Federalist 28, Hamilton gives a definitive statement of the role of local government in opposing the federal government when he writes:
"It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretenses so likely to escape the penetration of select bodies of men, as of the people at large. The legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community."
Alien and Sedition Acts
While the doctrine of interposition was well understood and embraced by the founders, it took ten years before a circumstance arose in which the federal government so blatantly violated the constitution that state governments found it necessary to move from theoretical discussion to actual enforcement.
1798 was a time of turmoil in much of the world. All of Europe was caught up in fight between Napoleon and the Allies led by the English. Americans found themselves divided between supporters of the French, supporters of the English and those who wanted to remain neutral. The administration of John Adams was attempting to follow the neutrality policy started by Washington. While remaining neutral was clearly the wisest policy, Federalists in Congress were so fearful of America being dragged into a war that they passed the Alien and Sedition Acts -- acts which almost everyone now recognizes were unconstitutional.
Concerned with "rabblerousing" from recent immigrants, the Alien Act gave the president power to deport any immigrant without trial. The Sedition Act, even more disturbingly, outlawed criticism of the Adams Administration's foreign policy.
Opposition to the Acts was spearheaded by Jefferson and Madison, who argued first, that the Constitution only gave the federal government over three types of crimes: counterfeiting, felonies on the high seas, and treason. Any attempt by the federal government to create additional crimes under federal jurisdiction was a hugely dangerous expansion of federal power. Secondly, the First Amendment absolutely forbade Congress to pass any law "restricting freedom of speech," and that even if laws against sedition and libel were needed that they were left solely to the discretion of the state governments. Thus the Sedition Act violated not only the First but also the Tenth Amendment, as it usurped a power constitutionally reserved to the states.
These positions were widely supported by the American people, as was shown by the subsequent election of Jefferson and then Madison as president, and the virtual extinction of Adam's party on the national level. What was not so unanimously agreed upon was exactly what the response to these Acts should be. Many people thought that since the Acts were so unpopular, within two years a new Congress and President would be elected which would repeal that acts, and that the best strategy was simply to wait to repeal the Acts in Congress.
Jefferson and Madison, however, believed that by not actively opposing these violations a dangerous precedent would be set, and that if the states did not act to prevent injustice that local officials would be in grave violation of their duty to protect their citizens. They espoused the position that the States must actively intervene and use their police power to halt any enforcement of the Alien and Sedition Acts.
Since Jefferson and Madison were leaders in Virginia politics, the adoption of this policy by Virginia was an forgone conclusion, but Madison and Jefferson hoped to convince other states to adopt the policy also. In the Northern states, where the Federalist Party was dominant, there was little chance of the policy being adopted, but Kentucky quickly adopted resolutions written by Jefferson, and North Carolina came close to passing such resolutions also, but ultimately did not.
Opponents of interposition claimed that because only two states officially adopted the policy that the doctrine had been repudiated, yet history shows that the Resolutions were both popular and a cornerstone of American politics for most of a century. Even New England Federalists, who had initially opposed the doctrine came to support it when they believed that (now) President Madison's policies were hurting New England. South Carolina adopted a similar set of Resolutions in 1830 in response to the so-called "Tariff of Abominations."
As late as 1856, the Democratic Party had as part of its party platform the promise that it would "faithfully abide by and uphold the principles laid down in the Kentucky and Virginia resolutions of 1798, and in the report of Mr. Madison to the Virginia Legislature in 1799; and that it adopts those principles as constituting one of the main foundations of its political creed." Even to this day, along with the Federalist Papers, the Resolutions are often cited in court decisions as evidence of the meaning of the First Amendment by Madison.
During the Twentieth Century the American government has increasing attempted to centralize all power in the federal government, and in fact has tried to reduce state and local governments to mere administrative subdivisions of the central government, rather than the autonomous entities which they are constitutionally. The philosophy of Hamilton, Madison and Jefferson has long been ignored by official Washington. Instead, the federal government has all but explicitly adopted the counter position of Immanuel Kant.
Kant, a contemporary of Madison and Jefferson, was a German legal theorist who espoused a doctrine known as legal positivism. Legal positivism essentially says that the law is whatever the government says it is, without reference to, or limitation by, any principles of justice, popular sovereignty, constitutional restraints or anything else. Kant wrote in 1792:
"all resistance against the supreme power ... is the greatest and most punishable crime in the commonwealth, for it destroys its very foundations. This prohibition is absolute. And even if the power of the state or its agent, the head of state has violated the original contract by authorizing the government to act tyrannically ... the subject is still not entitled to offer counter resistance. The reason for this is that the people, under an existing constitution, has no longer any right to judge how the constitution should be administered."
In other words, (as we hear today), the constitution is whatever the Supreme Court says it is, and local officials and private citizens are simply supposed to obey.
New Life for Interposition
Although Legal Positivism has long been ascendent in American politics the doctrine of state and local sovereignty has never died out. During the 1990's, as the federal government has attempted to centralize and dominate more than ever before, more and more local communities have been returning to the philosophy of the Virginia and Kentucky Resolution. Many of these efforts have been documented here on the pages of Media Bypass. We can only hope that the bicentennial of these Resolutions will help to remind people of the plan of the Founders and remind state and local officials of their duty to protect their constituents from unlawful attacks by the federal bureaucracy.
Moreover, since federal politicians have attempted to portray local officials who practice interposition as extremists, reminding everyone that they are simply following the guidance of Madison and Jefferson shows clearly who the real extremists are, and who is out of touch with traditional American practice. Let us take this opportunity to ask all state and local officials to read the Resolutions, and ask themselves who they are going to follow: Madison and Jefferson, or the current band of criminals who occupy seats of power in Washington.
More on the Doctrine of Interposition at interpos.htm.