The constitutional case for interposition and nullification

|The Volokh Conspiracy |

"The Constitution: An Introduction" was published this month by Basic Books.

For those joining the conversation mid-stream, this is the third in a series of posts introducing some themes of "The Constitution: An Introduction," my new book co-authored with my son, Luke Paulsen. Eugene Volokh has graciously invited me to guest-blog this week to introduce the book.

As I wrote in my opening post, the book itself is not designed as a work of advocacy or controversy. Our aim was to produce a short, smart, reasonably complete, lively general introduction to the U.S. Constitution for all readers—experts and novices alike. Yet, unavoidably, the book takes positions and describes events and controversies in ways that will invite or provoke debate. We don't shy away from these, even as we strive to describe the debates fairly. I am setting forth a few such controversial positions for The Volokh Conspiracy this week. (For more on the book generally, here is the web site for the book.)

My first post introduced both the book and "The Myth of Judicial Supremacy" in constitutional interpretation. My second post used the example of "Lincoln Versus Judicial Supremacy" to illustrate our general proposition that the Constitution does not itself embrace the notion of judicial supremacy, but instead admits of multiple, independent interpreters, none of whom is literally bound by the views of any of the others.

Consistent with that overall position, the book does not shrink from confronting the most problematic applications of this general view of decentralized interpretive authority: (1) independent state government interpretive authority—including the historically charged theories of state "interposition" and "nullification"; (2) the use of Congress' impeachment power as a check on federal executive and judicial abuse of their independent interpretive powers; and (3) jury interpretation of the Constitution in defiance of judicial instructions.

I will tackle interposition and nullification in this post, and discuss impeachment and jury interpretation in a subsequent one.

So: Consider first the independent power of state government officials to interpret the Constitution, in good faith, in ways that may contradict national judicial (or other national) interpretation. Chapter Two of the book ("Superstructure"), in the course of describing the Constitution's structural feature of federalism, notes The Federalist's embrace of the proposition that the two different levels of government would serve as mutual checks on one another. Hamilton, in The Federalist No. 28, wrote:

Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and those will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.

Madison, in The Federalist No. 46, went further yet. He stated that, in the event of national governmental violation of the rights of states or their citizens, "the State governments with the people on their side would be able to repel the danger" through the power of "citizens with arms in their hands." (Chapter Five, explicating the Bill of Rights, builds on these statements in describing the thinking behind the Second Amendment.)

But the most detailed discussion of state governments as checks on the national government and of the plausible legitimacy of independent state interpretive power comes in Chapter Six, the first chapter of the second half of the book (which discusses the history of the Constitution's interpretation from 1790 to 2015). The context is analysis of the constitutionality of the Alien and Sedition Acts passed during the Adams administration and of Virginia's and Kentucky's resolutions denouncing them as unconstitutional and proposing (somewhat ambiguously) to "nullify" them or to "interpose" state government authority in resistance to them.

Here's an excerpt of the book's discussion of these questions:

The Sedition Act raised a serious constitutional question: who checks the national government? When the three branches fail to check the constitutional violations of each other and all agree to pass, enforce, and uphold a seriously unconstitutional law violating the rights of the people to criticize their government's policies, where is the constitutional "check"?

The answer was the states—or at least some of them. Thomas Jefferson, by then Vice President under President Adams, ghostwrote a resolution adopted by the Kentucky legislature and James Madison wrote a resolution adopted by the Virginia legislature, each declaring the Alien and Sedition Acts unconstitutional. The Virginia and Kentucky resolutions called for resistances to the acts. Jefferson's initial draft … asserted that the states had the power to judge for themselves that a national law was unconstitutional and "nullify of their own authority" such usurpations of power by the national government. Madison's resolution for Virginia was only slightly milder….

We then note, with mild amusement, that six Northern states condemned the Virginia and Kentucky resolutions on the ground that it was improper for states to interpret the Constitution—ostensibly because only the courts could properly do so. "(The Northern states perhaps missed the irony that, in saying that state legislatures had no authority to interpret the Constitution, they were interpreting the Constitution themselves!)"

We observe that Madison's defense of state interposition, in the "Report of 1800" he prepared for the Virginia legislature, went "so far as to suggest that the states were the ultimate authority" in constitutional interpretation. According to Madison: "The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."

Far be it from us to say that James Madison misunderstood the Constitution on this vital point of federalism and sovereignty! But we do anyway:

Madison, and especially Jefferson, went too far: state sovereignty and supremacy are not consistent with the Constitution's design. But Madison and Jefferson were right that state authorities have the right and duty to resist unconstitutional actions of the national government. Thus, the proper answer is that state government actors are legitimate constitutional interpreters, but not supreme ones. State officials, no less than federal officials, swear an oath to support the Constitution. And the structure of federalism, as we have seen in Chapter 2, makes states and state officials independent checks on the national government. It is therefore not at all outlandish to think that officers and instrumentalities of state governments possess an independent power of faithful constitutional interpretation…. As demonstrated by Virginia's and Kentucky's resistance to the Alien and Sedition Acts, that power sometimes can be a valuable check on unconstitutional action by the national government.

But there is an important constitutional limit to this independent state interpretive power—a boundary that Madison defined inconsistently, that Jefferson disregarded entirely, and that (as we shall see) nullification and secession would attempt to breach violently: independent state power to interpret the Constitution does not mean state supremacy over the Constitution. No state, group of states, or state actor within them has the power to interpret the US Constitution in a way that binds the nation as a whole. Just as states are not literally "bound" by the federal government's interpretations of the document, the federal government cannot be controlled in its actions by the interpretations of the state. The two levels of government operate as checks on each other, just as the several branches of the national government check one another.

Later in the book, we return to these principles in describing the Nullification Crisis and President Jackson's (correct) response to it (Chapter 6), the Secession Crisis and President Lincoln's (correct) response to it (Chapter 7), and Southern resistance to Brown v. Board of Education and President Eisenhower's (correct) response to it (Chapter 9).

The constitutional history of these confrontations is entertaining in its own right. But are we right about the general principle that should govern these situations? Is it correct to say (as we do) that states legitimately possess an independent, but not supreme, power of constitutional interpretation—and that the remedy for any resulting wrong state interpretations is independent federal interpretive authority combined with the constitutional power to press those national views with the (superior) power at the national government's disposal? Or does the Constitution suggest federal interpretive supremacy as a rule and repudiate any role for legitimate state officer interpretive authority—meaning that it was constitutionally improper for Jefferson, Madison, Kentucky and Virginia to seek to resist the authority of the Alien and Sedition acts?

Tomorrow, I will discuss impeachment as a power of constitutional interpretation—a congressional power to "check" (to deter, to punish) abusive misinterpretations of the Constitution by removing offending federal officeholders from their positions (or threatening to do so). I will also discuss the jury's legitimate power of constitutional interpretation.