Interposition, Nullification, and the Supreme Court
Sen. Rand Paul is pledging to undo some of President Barack Obama’s executive orders on guns that the Kentucky Republican believes overreach.
“In this bill we will nullify anything the president does that smacks of legislation,” Rand said Wednesday on Fox’s “Hannity,” referencing his legislation that is slated to be introduced in Congress next week. “And there are several of the executive orders that appear as if he’s writing new law. That cannot happen.”
There is a lot of talk recently about nullification and interposition. As I understand the words (which differs a bit from the way the Wikipedia explains them) ‘nullification’ is the act of a judicial or legislative body that declares a particular law invalid: as violating whatever common human law binds them together, or as going against the very law of God. Interposition, on the other hand, I see as the act of ‘standing between’; of interposing oneself between a governing authority and the ordinary citizen.
And so, for example, in the period prior to the Civil War, the United States Congress passed, and the Supreme Court ruled ‘constitutional’, the Fugitive Slave Law. This law stated that it was illegal for citizens of the free states not to return fugitive slaves to their ‘rightful owners’.
As I understand and use the terms, it would have been ‘nullification’ for a state government to pass a law declaring that the Fugitive Slave Law was null and void in their state. It would have been ‘interposition’ for a given citizen or official to have refused to return a fugitive slave (it would also have been nullification, jury nullification, for a given jury to refuse to convict someone of disobeying the Fugitive Slave Law).
Both nullification and interposition are basic human responsibilities. No law system can exist which denies them. Human rulers are not God, nor can they be treated as gods. Rulers will always be unjust, and this injustice must always be fought at whatever level it can be. The Dutch resistance to Nazism was a form of interposition. Any government in exile is a form of nullification. “I was just following orders,” is no excuse for participating in injustice.
During the 19th century, several states attempted or threatened interposition or nullification. These states often referred to the Virginia Resolution and used the language of interposition, even though they often were attempting or threatening nullification. None of these interposition attempts was legally upheld. The Supreme Court ruled against various interposition and nullification attempts in a series of cases, starting in 1809. The Civil War put an end to most interposition attempts.
But here in the United States we have a very unusual situation. Here we have a federal government, in fact a federal court, which tells us that nullification and interposition are ‘illegal’. And those who would use these doctrines actually pay attention.
Of course nullification and interposition are ‘illegal’. Oh, some forms might be tacitly allowed, such as jury nullification. And sometimes the system itself might allow for a form of nullification, such as the recent issue with ‘Real ID’… a system that relies upon the working of more than one level of government. But interposition and nullification, by definition, involve one authority, a lower level authority, standing up against the power and authority of another level. A Daniel, refusing to pray to a Nebuchadnezer. Shadrack, Meshack, and Abednego being willing to go to the fiery furnace instead of bowing to the idol.
The Babylonian Supreme Court, if such had existed and been consulted, would have ruled their actions ‘illegal’. They would have trotted out law and precedent that would have clearly shown how the Bablylonian potentate had the perfect right to demand prayer… and how the mere request to worship one particular idol did not violate any Babylonian’s citizens freedom of religion. Obviously no religion could consider the mere bowing down to one idol as forbidden for it’s worshipers.
Would Daniel et. al. have merely bowed their heads to this decision and gone ahead and worshiped the Potentate or the idol? Gravely spoken about the rule of law?
That seems to be the attitude of many modern Christians. They seem to believe that the United States Supreme Court; a creature of the United States Federal Government, actually has the authority to tell US Citizens what is, and what isn’t, according to the United States Consitution, let alone the law of God. The idea is ludicrous, nonsensical. If the Supreme Court tells you that these things are constitutional would you allow the federal government to: take your land, take your guns, execute people on the streets of New York without trial? Force you to participate in child murder?
What would or wouldn’t you allow? Where would you draw the line? When would you, eventually, say that the government had gone too far, even if the courts said it was OK? Would you go along with the Nazi’s as they stole and destroyed Jewish businesses, kidnapped and raped Jewish girls, hauled whole populations off to executions? The German High Court approved of all these things.
…this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
~Virginia Resolution of 1798, written by James Madison
If the people of the United States are going to get serious with their attempt to take back their country from those who have stolen it, they will have to realize that they will have to actually defy the Supreme Court, as well as the executive and legislative branches. They may have to defy local courts or officials who fail to understand their proper role. In the end, nullification and interposition will happen only if those involved are willing to actually stand up to government authorities at every level. If any level of government can step up, pat them on the back, and tell them what they are doing is ‘ unconstitutional’, then no amount of interposition or nullification will work.
Note: The first picture is a painting of the execution of Lady Jane Grey, a one-time queen of England who was (along with her husband and father) executed for being politically inconvenient. The second picture is, of course, the holocaust and the third is NOT an image of a political meeting in Virginia but of Vladimir Lenin before a communist congress.
The cover picture is meant, on my part not the artist’s, to represent a Don Quixote style knight, who tilts at windmills but accomplishes nothing.