Interposition - Virginia Resolution

Virginia Resolution

Interposition was first suggested in the Virginia Resolution of 1798, written by James Madison, which stated:

That 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.

By this statement, James Madison asserted that the states are "duty bound to interpose" to prevent the harm that would result from a "deliberate, palpable, and dangerous" unconstitutional action by the federal government. Madison did not specify the procedural legal details of how this interposition would be enacted or what result it would have. The Virginia Resolution, unlike the contemporaneous Kentucky Resolutions, did not assert that the states may declare a federal law null and void. The Virginia Resolution thus is sometimes considered to be more tempered than the Kentucky Resolutions, which assert that a state may nullify unconstitutional federal laws.

The Kentucky and Virginia Resolutions were not accepted by any of the other states. Seven states formally responded to Kentucky and Virginia by rejecting the resolutions and three other states passed resolutions expressing disapproval. At least six states responded to the Resolutions by taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures. For example, Vermont's resolution stated: "That the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."

In 1800, the Virginia Legislature issued a report responding to the criticism of the Virginia Resolution. Madison wrote the Report of 1800. Madison affirmed each part of the Virginia Resolution, and again argued that the states have the right to interpose when they believe a federal law is unconstitutional. He explained that when the states declare a federal law unconstitutional, such declarations "are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection." Madison explained that the purpose of such declarations of unconstitutionality is to mobilize opposition to the law and to enlist the cooperation of other states. Madison said that the states might take various types of joint action to remedy the situation, such as jointly applying to Congress for repeal of the law, instructing their senators to submit a constitutional amendment, or calling a convention to propose constitutional amendments.

During the Nullification Crisis of the 1830s, Madison further explained the concept of interposition as set forth in his Virginia Resolution. Madison denied that any single state had the right to unilaterally determine that a federal statute is unconstitutional. Madison wrote, "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined." Rather, the interposition contemplated by Madison would be "a concurring and cooperating interposition of the States, not that of a single State." Madison argued that interposition would involve some sort of joint action among the states, such as amending the Constitution.