Christian G. Fritz is Emeritus Professor of Law at the University of New Mexico School of Law. His research focuses on U.S. legal and constitutional history. He is the author of American Sovereigns: The People and America’s Constitutional Tradition before the Civil War (2009), and most recently, Monitoring American Federalism: The History of State Legislative Resistance (2023).
Abstract
One key feature of the U.S. Constitution – the concept of federalism – was unclear when it was introduced, and that lack of clarity threatened the Constitution’s ratification by those who feared the new government would undermine state sovereignty. Proponents of the new governmental framework were questioned about the underlying theory of the Constitution as well as how it would operate in practice, and their explanations produced intense and extended debate over how to monitor federalism.
In their famous defense of the Constitution in The Federalist, Alexander Hamilton and James Madison described a monitoring role for state legislatures that anticipated the practice of interposition. Although never using the term “interposition” in their essays, Hamilton and Madison responded to opponents of the Constitution by arguing that state legislatures were uniquely situated to be the voice of the people who would sound the alarm if the general government exceeded its rightful authority. What originated as a debate-like response to opponents of ratification eventually took on a life of its own, producing a settled tradition of monitoring federalism by the states that has largely been overlooked and which laid the groundwork for future conversations about constitutional meaning and federalism’s balancing of powers. I explore these themes in Monitoring American Federalism: The History of State Legislative Resistance.
Introduction
Americans have monitored federalism from the beginning of the republic, questioning whether the newly established government under the U.S. Constitution was more attuned to Jefferson’s vision of sovereign states resting on the sovereignty of the people of each state—or Hamilton’s vision of a consolidated nation resting on the sovereignty of one national people. The answer was that the government was both, but it took considerable time and effort to determine the consequences for America. The Constitution created what James Madison called a “compound republic”—neither a wholly national government nor one in which states retained their entire sovereignty. This shared sovereignty inevitably tested the balance of powers between nation and states. The absence of a clear delineation between the two levels of government meant that a static equilibrium had always been an ideal, but never a fact.
Scholars have identified ambiguities in thinking about the origins and nature of the Union and observed the confusion of many Americans. Indeed, the complexities and conceptual distinctions of Madison’s understanding of the Constitution have proven too much for many. Despite the accuracy of Madison’s description of federalism that featured sovereignty divided between the national and the state levels of government, debates over the meaning of American federalism have frequently devolved into a binary pattern. Amidst fierce partisanship, people gravitated towards the more simplified and understandable extremes of assuming that either national sovereignty or state sovereignty underlay the Constitution instead of a combination that reflected Madison’s “compound republic.”
In practice, the Constitution’s tensions generated a dynamic federalism that led to continuous struggles over the balance of power. Americans expected government officials and elected representatives to act as guardians of their rights by taking appropriate constitutional action to maintain a proper balance of federalism. At times, the constant uncertainty and debate undermined the Union, most dramatically with the Civil War and in the aftermath of the postwar Constitution during Reconstruction.
From the beginning, Americans disagreed about what the equilibrium of federalism meant. Some believed the national government only possessed those powers expressly granted in the Constitution—with states permanently retaining all other powers. Others believed the national government’s powers could expand to accomplish what was necessary and proper to sustain the nation—and that states had already surrendered sovereignty to achieve that purpose. Finally, Madison and his allies argued that there was no bright line between national and state sovereignty. Instead, the question of divided sovereignty would be forged incrementally—in a case-by-case and collaborative nation-state process.
Largely overlooked in that process is the historical practice of a constitutional tool employed by state legislatures that provided them a significant role in overseeing the operation of federalism created by the Constitution. That constitutional tool was interposition, a practice which entailed the opposition to federal government decisions that were deemed unconstitutional by state legislatures. Interposition was a constitutional tool, not because it was identified in the Constitution, but because it—like judicial review which was also not enumerated in the Constitution—played a role in identifying the constitutionality of actions of the national government. Unlike judicial review, interposition did not have immediate constitutional effect, but was designed to work through state-based political pressure in attempting to maintain an equilibrium between the national and state governments by enabling state legislatures to express and coordinate their discontent over federal laws and measures.
The Genesis of the Constitutional Tool of Interposition
One crucial complaint by opponents to the ratification of the Constitution was that the proposed frame of government threatened the existence of the states. Although expressed in different ways by Anti-Federalists, their central concern came down to one basic question: What assurance did those who might ratify the Constitution have that the national government under that Constitution would not exceed its rightful authority and encroach upon the rights of the state governments or the liberties of the people?
As prominent supporters of the draft Constitution, Alexander Hamilton and James Madison sought to address that concern in the famous Federalist Papers. In a series of essays written as Publius, Hamilton and Madison described how the state legislatures in particular could and would operate as effective watchdogs of the governmental structure through the constitutional tool of interposition and thereby help maintain federalism’s proper balance. In four essays written by Hamilton (Federalist 26, 28, 84, and 85) and four by Madison (Federalist 44, 46, 52, and 55) they identified all of the features that interposition would later assume in the hands of state legislatures that challenged actions of the national government for unduly expanding its constitutional authority.
The interposition-related essays of The Federalist have rarely been examined collectively and without attention to the passages setting out the tool of interposition partly because neither Madison nor Hamilton used the term “interposition.” Although the elements of interposition as it would be practiced were described in the Federalist essays, scholars assume that interposition was born of a post-ratification doctrine of states’ rights. That assumption is incorrect and is the primary reason that the roots of interposition in The Federalist have been overlooked.
Three Principal Elements of State Legislative Interposition: Minotoring, Sounding the Alarm and Interstate Communication
There were three principal elements of the tool of interposition that can be gleaned from the eight interposition-related Federalist essays. First, the essays identified state legislatures as one of the monitors of the constitutional equilibrium of federalism, often describing the legislatures as “sentinels” or “guardians.” Second, as guardians of that equilibrium, it was the function of state legislators to identify and then declare their perception of potential encroachments by the national government on the authority of the state governments or the rights of the people. Both Madison and Hamilton described that step as sounding the alarm. Third, they envisioned state legislatures launching interstate efforts to bring widespread attention to the alleged enlargement of powers by the national government.
Sounding the alarm was not simply a matter for individual states, but a means of stimulating a nationwide conversation and debate that might result in a correction or reversal of such overreaching by focusing scrutiny on the questionable action and generating political pressure. Both Madison and Hamilton described initiating correspondence with other state legislatures and formulating plans to respond to the encroachments. Neither of them suggested that sounding the alarm amounted to a nullification of the acts taken by the national government. Instead, the “alarm” was the considered judgment of a legislative body acting as a monitor of the constitutional equilibrium.
In every particular, these three elements emerged in the practice initiated by state legislatures after the Constitution’s ratification when they passed instructing and requesting resolutions directed at their congressional delegations. In those resolutions, the state legislatures specified what they believed to be the unconstitutional acts of the national government and requested the state’s governor to share the resolutions with other state legislatures and Congress.
Misconceptions Surrounding Interposition
When the sounding the alarm function of interposition was invoked by state legislatures after ratification, some criticized that step as utterly impractical for resolving questions of constitutional overreaching by the national government or for identifying an imbalance in the equilibrium of federalism. Multiple states rendering their judgments on those issues would only create confusion since a definitive resolution required a single decision-maker such as the Supreme Court. But the idea of interposition advanced as a rhetorical argument in The Federalist was not a challenge to the Supreme Court’s authority to interpret the Constitution and render judicial decisions about the boundaries of federalism.
When state legislatures sounded the alarm by highlighting potential unconstitutional overreaching by the federal government, as when Virginia’s legislature protested the national assumption of state debts in 1790 or when northern states objected to the suspension of the writ of habeas corpus during the Civil War, they were not wresting away from the Supreme Court authority to render judicial decisions. Those alarms were only designed to stimulate a wider, interstate awareness and concern about the action in question, a heightened interest that might ultimately result in a shift in public opinion helping to facilitate a reversal of the purported constitutional encroachments by the national government. Potentially, interposition could prompt a change of political representation, or stimulate Congress to enact new laws, or create a movement for constitutional amendment that might revisit the constitutional issue.
The consequence of describing state legislatures as sentinels and guardians introduced a broader vision of constitutional discourse in which other parties and groups – and not the Supreme Court alone –had a role in ensuring that the federal government stayed within its proper bounds. The Constitution called for all federal and state officials, including state legislators, to support the Constitution “by oath or affirmation.” Many state legislators viewed that requirement as not only commanding those officials to obey constitutional acts of the national government, but also obligating them to identify and resist unconstitutional acts of that government.
While multiple eyes might keep watch on the operation of the federal government to identify when it might be overreaching, state legislatures were best positioned for interposition. Unlike other sources of critique, such as those coming from individual citizens or the press, a legislature could claim to speak for an entire state. Resolutions passed by state legislators could legitimately be considered an expression of “the people.” Moreover, that popular “voice” came in the form of a resolution capable of being shared with other state legislatures and a state’s congressional delegation. Passage of a state legislative resolution gave that constitutional opinion a tangible means of transmission not enjoyed by other actors weighing in on instances of allegedly unwarranted acts of the national government. State legislatures not only possessed the logistical means for expressing concerns about constitutional boundaries, but were better suited for watching the national government. With the advantage of acquiring information through direct communication with the state’s congressional delegation and with the expectation that one of their duties was to keep an eye on the operation of the national government, state legislators were arguably better informed than average citizens.
Interposition in Historical Hindsight
Viewing interposition with historical hindsight tends to associate it only with a sovereign states’ rights theory linked to the defense and preservation of slavery and the doctrines of nullification and secession that led to the Civil War. Moreover, interposition bears the burden of its association with White supremacist resistance to the Civil Rights movement of the twentieth century. Viewing interposition from the opposite direction and within the context of the immediate aftermath of the Constitution offers a different picture.
Considering its roots, interposition emerges as a practice of state legislatures playing a more helpful and logical role within the unfolding enterprise of balancing the newly minted federalism of the Constitution. As Madison and other Federalists repeatedly assured their opponents during the ratification debate, the Constitution did not create a consolidated government. According to Federalists, the Constitution was neither designed nor did it have the tendency to swallow up all of the authority of state governments. On the other hand, as Madison frequently pointed out, the Constitution did not create a confederated government that left the states with their state sovereignty fully intact. Instead, the Constitution created a government that was partly national and partly federal – and this key characteristic involved a continuing search for a divided, but balanced, sovereignty.
From the perspective of the history of American federalism, the early concept of interposition was but one of the means to monitor the appropriate operation of the national government. Ultimately, interposition was justified if it defended the authority and power that Federalists insisted was left to the states by the Constitution—and helped preserve the rights and liberties of the citizens of those states. If and when the federal government exceeded its appropriate constitutional powers, or undermined the legitimate rights of the state governments or citizens of the states, the use of interposition could hardly be considered subversive. Instead, the early practice of interposition could be portrayed as protective of the constitutional order established by the Constitution. From the perspective of federalism operating in other parts of the world, interposition might have suggestive implications for emerging federations as a tool to strengthen autonomy.
Suggested citation: Fritz, C.G. 2023. ‘Monitoring American Federalism: The Overlooked Tool of Sounding the Alarm Interposition’, 50 Shades of Federalism
Further Reading
Fritz, Christian G., 2023. Monitoring American Federalism: The History of State Legislative Resistance. Cambridge: Cambridge University Press.
Hays, Bradley D. 2019. States in American Constitutionalism: Interpretation, Authority, and Politics. New York and London: Routlege.
Levinson, Sandford, ed., 2016. Nullification and Secession in Modern Constitutional Thought. Lawrence, Kansas: University Press of Kansas.