Timothy N. Baldwin, JD.
July 2, 2013
This article addresses what the States can do to restore liberty in the United States of America through “active interposition.”
It may be a foregone conclusion to some that the States can do anything to resist unconstitutional federal laws. In typical form, opponents of Federalism claim that the Civil War and time itself ridded any power of the States to interpose encroachments of the federal government.
These people expand the effect of the Civil War beyond what even Abraham Lincoln admitted and the Constitution provided through the post-Civil-War amendments. Ironically, many of these people are Democrats, which is the Party that once advocated for States’ rights (the reason for which, I believe, rests largely in George Hegel’s influence in the 1800s).
Regardless, their philosophy refutes the inflexibility of their own conclusion and view of the Constitution. If the Constitution can change over time to prevent a State remedy, it can change by equal or greater reasons to allow a remedy. In the alternative, if the Constitution cannot change, necessity proves as strong a tool.
Hamilton put it this way, “how unequal parchment provisions are to a struggle with public necessity.” (FP 25.) History shows that under the Articles of Confederation (“Articles”), the federal government openly violated the constitution due to its inadequacies, and James Madison did not condemn such extra-constitutional actions. Madison said,
I mean not…to throw censure on the measures which have been pursued by Congress. I am sensible they could not have done otherwise. The public interest, the necessity of the case, imposed upon them the task of overleaping their constitutional limits. (FP 38.)
Moreover, the Federalists acknowledged that necessity may require governments to act outside their constitutional limits for their own preservation. Hamilton put it this way:
EVERY GOVERNMENT OUGHT TO CONTAIN IN ITSELF THE MEANS OF ITS OWN PRESERVATION. Every just reasoner will…approve an adherence to this rule…and will disapprove every deviation from it which may not appear to have been dictated by the necessity of incorporating into the work some particular ingredient, with which a rigid conformity to the rule was incompatible. (FP 59.)
Whether one approaches interposition from an originalist or non-originalist position, both support its use when necessity requires.
Fundamental Problem with Articles of Confederation: Passive State Nullification
Some background will be helpful to better understand what the Federalists meant and intended by interposition. Under the Articles, the union faced a problem bringing them close to dissolution because it required the States to unanimously ratify a proposed federal bill before it became law. This State power was called passive nullification, and its effects on the union are well described in the Federalist Papers. (E.g., FP 15.)
Describing passive nullification under the Articles, Hamilton said, “if the interposition of the State legislatures be necessary to give effective to a measure of the Union, they have only NOT TO ACT, or TO ACT EVASIVELY, and the measure is defeated.” (FP 16.) This constitutional effect was destroying the union and deflating the federal government’s energy to carry out its general objects.
In the plan drafted at the constitutional convention, the delegates proposed a new federal arrangement, and Hamilton described it this way:
[t]he government of the Union, like that of each State, must be able to address itself immediately to the hopes and fears of individuals…It must, in short, possess all means, and have a right to resort to all the methods, of executing the powers with which it is intrusted, that are possessed and exercised by the government of the particular States. (FP 16.)
As such, federal bills would no longer be conditioned on State approval. Passing federal laws would be independent of the States.
So, the question is, was this the end of State interposition against unconstitutional federal laws? The Federalists answered, no. The Federalists proposed that the Constitution “correct[ed] any extremes” of anarchy and tyranny: eliminating passive nullification remedied the extreme of anarchy and active interposition remedied the extreme of tyranny.
Political Entities Need “Arms” To Protect Themselves
The philosophical basis for active interposition rested in the impossibility of precisely defining with words the boundaries of sovereignty to prevent encroachments. Hamilton said in FP 73 that there is an “insufficiency of a mere parchment delineation of the boundaries of each [branch in the federal government],” and Madison said in FP 37 that “marking the proper line of partition between the authority of the general and that of the State governments” is impossible. A more practical check was needed to avoid the extremes of anarchy and tyranny.
Hamilton recognized the “propensity of the legislative department to intrude upon the rights, and to absorb the powers, of the other departments”, and he admitted “the necessity of furnishing each [branch] with constitutional arms for its own defense”. Otherwise, each branch “might gradually be stripped of [each’] authority.” (FP 73.)
In the same vein, Hamilton recognized that the federal government could encroach on the States’ sovereignty. “[L]et it be admitted,” Hamilton said, “that mere wantonness and lust of domination [will] be sufficient to beget that disposition [of the general government to divest the states of their authorities].” (FP 17.)
So, the Constitution accomplished through practice what words could not accomplish through hermeneutics. Protecting liberty required that each branch of the federal government have sufficient “arms” to protect the power each holds and that the State governments have sufficient “arms” to protect them from federal encroachment.
The “Arms” of the States: Active Interposition
Under the Constitution, the States would not have the power of passive nullification but would retain the power of active interposition. Hamilton observed that there would be a “difference between a mere NONCOMPLIANCE [under the Articles] and a DIRECT and ACTIVE RESISTANCE [under the Constitution].” (FP 16.) This difference is what created an energetic, stable federal government while maintaining the States’ ability to protect their sovereignty. In short, “active resistance” was the States’ arms to protect their sovereignty and check the federal government.
In contrast to his description of passive nullification, Hamilton described active interposition under the Constitution, saying,
if the execution of the laws of the national government should not require the intervention of the State legislatures, if they were to pass into immediate operation upon the citizens themselves, the particular governments [of the States] could not interrupt their progress without an open and violent exertion of an unconstitutional power. (FP 16.)
Hamilton’s description shows that where the States actively interpose against a constitutional federal law, they would be stepping outside the normalcy of the federal system and leaving their constitutional authority.
Contrasted from that scenario, Hamilton stated that the States would be justified in (and the people would support) actively interposing against the federal government when the federal law was a tyrannical exercise of federal authority. He said,
[a]ttempts of this kind [i.e. State interposition] would not often be made with levity or rashness, because they could seldom be made without danger to the authors, UNLESS IN CASES OF A TYRANNICAL EXERCISE OF THE FEDERAL AUTHORITY. (FP 16, emphasis added.)
In this case, “[the States] will have the  disposition towards the general government [to stand ready to check usurpations].” (Hamilton, FP 28.)
Where the federal law was a clear case of tyranny, the States could and should actively interpose; likewise, the people would throw their weight into the States’ scale, giving the preponderance to them and their cause. Hamilton put that scenario this way:
it will not follow from this doctrine that acts of the large society [i.e. federal government] which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies [i.e. States], will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. (FP 33, emphasis added).
Undoubtedly, the federal government would feel the political scale tipping in the State’s favor when the people put the pressure where it belonged. Human nature suggests, the federal government would respond the way the people pressured.
The States must be prepared for these political realities. So, aside from knowing when and how, the people and their representatives must know what actively interposing against tyrannical exercise of authority means.
Methods of Interposition
To actively interpose, the Federalists assumed that the States would “sound the alarm” and be the people’s “arm of discontent,” “jealous guardians of the rights of the citizens against encroachments form the federal government” (FP 26) and “protect[ors] of [our] common liberty” (FP 28). They listed many examples of what the States would do to defend the people politically against federal encroachment, but there is one practical method of interposing today that must be understood because without getting it, citizens will not likely get any others. It is simple: States not participating in or helping with federal law enforcement.
To confirm this power, the United States Supreme Court recently ruled that the federal government lacks power to commandeer the States to implement or assist the federal government in any federal law. In Printz v. U.S., the Court said,
[t]he Framers rejected the concept of a central government that would act upon and through the States, and instead designed a system in which the State and Federal Governments would exercise concurrent authority over the people. (Printz v. U.S. 521 U.S. 898, 899 (1997).)
The only way the States can help the federal government enforce federal law is through consent and choice. But how many citizens know what their States are doing in this regard and on what basis they are doing it?
Example of a Governor Not Interposing
To illustrate how State politicians completely miss this constitutional concept, consider the case of my home state, Montana. During Montana’s 2013 legislative session, overwhelming bipartisan support was given to pass HB 522, which simply states, “Montana may not provide material support or participate with the implementation of sections 1021 and 1022 of the federal National Defense Authorization Act for Fiscal Year 2012, Public Law 112-81, within the boundaries of this state.” (See, source.)
This federal law (NDAA) provides for the indefinite detention of United States citizens with no or limited constitutional rights for the detained—a large concern for many civil rights advocates across the political spectrum. Montana’s legislature responded appropriately; and in reality, HB 522 simply stated that Montana did not consent to using State authority or money to help the federal government enforce Sections 1021 and 1022 of the NDAA. This bill did nothing more than preemptively express Montana’s will pursuant to the Printz ruling.
After strongly passing both houses, Governor Steve Bullock vetoed this bill. This is his reason:
while any citizen is entitled to make political statements, we ought not clutter Montana code with such statements, or put our law enforcement officers in an untenable position. (See, source.)
Unfortunately, Governor Bullock showed ignorance of Federalist principles; disregard for the Printz ruling; political motive that has nothing to do with the will or good of Montana; and agreement with the federal government’s detaining our citizens indefinitely without constitutional rights. These show a despicable display of political and constitutional knowledge and concern for liberty.
States Must Get This
If our States understood this one point of constitutional law relative to active interposition, we could prevent the federal government from being effective in areas it has no constitutional authority. This action will restore more constitutional order, advance the States into a better political position and send a powerful message that the States take seriously their roles to sound the alarm, be the arm of discontent, be the jealous guardians of the rights of the citizens, and be the protectors of our common liberty. It will be the “safest course for your liberty, your dignity, and your happiness,” as Hamilton put it. (FP 1.)
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For Montana, the Republican Party declares its agreement with active interposition. The Republican Party platform states,
We hold with these men [Thomas Jefferson and James Madison] that the States not only have the right, but also the duty to nullify unconstitutional laws in order to protect their citizens. We demand federal withdrawal from those areas of responsibility reserved by the U.S. Constitution to the states and people. We demand our state elected officials to undertake appropriate action. (See, source.)
Citizens should elect Republicans in the primaries who truly believe in this constitutional principle. We have an opportunity every two years to put people in public office that will help restore liberty through our States. If we fail to do this, we have no one to blame but ourselves.
Part 5, Constitutional Amendment
Part 6, Constitutional Convention
Part 7, Revolution
Sign up for Tim Baldwin’s posts at www.libertydefenseleague.com. Also, purchase Tim and Chuck Baldwin’s newly-released book entitled, To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns.
© 2013 Timothy N. Baldwin, JD - All Rights Reserved
Timothy Baldwin, born in 1979, is an attorney licensed to practice law in Montana (and formerly Florida) and handles a variety of cases, including constitutional, criminal, and civil. Baldwin graduated from the University of West Florida in 2001 with a Bachelor of Arts (BA) degree in English and Political Science. In 2004, Baldwin graduated from Cumberland School of Law at Samford University in Birmingham, AL with a Juris Doctorate (JD) degree. From there, Baldwin became an Assistant State Attorney in Florida. For 2 1/2 years, Baldwin prosecuted criminal actions and tried nearly 60 jury trials. In 2006, Baldwin started his private law practice and has maintained it since.
Baldwin is a published author, public speaker and student of political philosophy. Baldwin is the author of Freedom For A Change, Romans 13-The True Meaning of Submission, and To Keep or Not To Keep: Why Christians Should Not Give Up Their Guns–all of which are available for purchase through libertydefenseleague.com. Baldwin has also authored hundreds of political articles relative to liberty in the United States of America. Baldwin has been the guest of scores of radio shows and public events and continues to exposit principles which the people in America will need to determine its direction for the future.
Web site: libertydefenseleague.com