Interposition, Nullification and Popular Resistance
TenthAmendmentCenter.com by Derek Sheriff
Earlier this year, I wrote an article titled, A Bright Idea: Less Litigation and More Interposition. The main point of my article was to persuade people that lawsuits and battles in federal court were an ineffective and wasteful substitute for interposition or nullification in the battle against federal usurpation.
However, after the third week of Tom Woods‘ course on nullification at The Mises Academy, I now understand that interposition was probably just used by James Madison as shorthand for a broad spectrum of measures which could be employed by state governments, all intended to protect their citizens from unconstitutional acts that violated their rights. State interposition, in other words, might include any number of constitutional measures on the part of a state government designed to arrest the evil of usurpation. It turns out then, that court challenges are in fact a more moderate form of state interposition. But as Jefferson seemed to indicate in his draft of the Kentucky Resolutions of 1798, “nullification…is the rightful remedy” when the federal government reaches beyond its constitutional powers and other forms of interposition fail. Nullification may simply be one of the boldest and most direct forms of interposition. It stops short of secession, but aims to put power back into the hands of the states, and ultimately the citizens of the states where it rightfully rests.
If I had a time machine, I guess I would rename my article A Bright Idea: Less Litigation and More Nullification, since Arizona’s governor, Jan Brewer, does in fact seem to support state interposition, but does not yet seem to embrace nullification.
But regardless of what their respective governors choose to do or not do, the people in every state need to make up their own minds. I would argue that whatever the outcome of this or that federal court battle, they shouldn’t in any way accept the decisions of federal judges, even the justices of the Supreme Court, as having any legitimacy whatsoever in cases where those decisions are obviously nothing more than a fig leaf to provide political cover for acts of naked usurpation.
Some federal supremacists might say that I am calling for civil disobedience or that I’m guilty of spreading sedition. But I assure you that nothing could be further from the truth. Since I can’t say it better than David Justice, Colorado State Coordinator for We The People Congress, let me just quote him. In an op-ed from April of last year, he wrote:
“Bottom line? The American people have a duty not to consent to an unconstitutional act masquerading as law…the American people have a duty not to dignify a statute passed that is repugnant to the Constitution. Though failure to comply could be perceived as an act of civil disobedience by the ignorant, in truth, if the agent has transgressed the principal’s delegation of power, the principal has a duty to call the agent on it to avoid giving the appearance of consent..”
Civil disobedience is deliberate defiance, on moral grounds, of particular laws that are constitutional and legal, but may also be unjust. In contrast, non-violent non-cooperation with unconstitutional, and therefore illegal, commands and prohibitions is not civil disobedience. Rather it is the rightful exercise of powers reserved to the states or the people, guaranteed by the Bill of Rights. Not only do local and state officials have a duty to “call the agent on it” (an unconstitutional command or prohibition), in order to avoid giving the appearance of consent, but so do individual citizens, especially if our state officials fail to do so. Hard as it might be for us to imagine today, there was actually a time in this country, when citizens of states like Wisconsin properly understood that in the last instance, the people themselves are the final arbiter of the Constitution.
As H. Robert Baker wrote in the first chapter of his wonderful book, The Rescue of Joshua Glover: A Fugitive Slave, the Constitution, and the Coming of the Civil War:
“Deeply embedded in the American revolution was the concept that the people properly organized might act on their own. The idea of direct popular action became central to American government in the first decades of the nineteenth century.”
In the second chapter of his book, Baker seems to point out the flaws inherit in the false doctrine of Judicial Supremacy:…