Nullification and interposition

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Published: February 8,2013

Tags: constitutional law, interposition, nullification

The Legislature 2011 Session

Rarely does one get the chance to get a second look at history. A bill recently introduced in the Mississippi House of Representatives is providing that opportunity.

In this case, the matter regards a basic constitutional argument that has once appeared to be consigned to the history books themselves. Yet, low and behold, as Thursday, Jan. 24, dawned, there it was — House Bill 490 whose title read in part ”to assert the sovereignty of the state under the Mississippi Constitution of 1890; to prohibit the infringement of the constitutionally protected rights of the State of Mississippi, or its people by means of any federal statute, mandate, executive order, judicial decision or other action deemed by the state to be unconstitutional….” What followed in the bill was a carefully laid out case for the revival of the old concepts of “nullification and interposition.” Upon reading House Bill 490 memories of other days and troubled times of yesteryear filtered in.

As one who teaches Mississippi government and politics, I was able to toss the notes for the following Friday’s lecture. It is not often that such a welcomed 21st century gift would be made available as a basis for discussing 175 years of history. Few states have invested as much of their history in formulating theories and strategies for active resistance against the federal government as has the state of Mississippi. To be sure she has not been alone among her sister states in these endeavors, but Mississippi has often lead the pack in the vigor and the staying power with which she has resisted.

I do not include myself among those who have dismissed the validity of House Bill 490 as the mere object of mirth and as a certain vehicle for ridiculing Mississippi on the national stage. Indeed, I am one who, upon reading the bill, hopes that it will reach the floor of the Mississippi House to be lustily debated there. House Bill 490 does not shortchange the reader in the argument that has haunted the country since its founding. In the standoff between the national government and the respective states, who should have the upper hand? This question has been debated in the great halls of government and around the tables of thousands of small town coffee shops.

South Carolina’s great orator and thinker John C. Calhoun was perhaps the first to formulate and clearly elucidate the doctrine known as “nullification,” described as, “the right of a state to interpose, in the last resort, in order to arrest an unconstitutional act of the General Government with the limits of the state.” Calhoun maintained that the states as creators of the national government could therefore “interpose” themselves between the national government and the people of the respective states and hold any law as unenforceable — null and void — that was contrary to state law or the state constitution.

While notions of the viability of such a concept of defiance of acts of the federal government by the individual states have waxed and waned over time, they have never totally disappeared. One only need to fast forward to the 1950s and an examination of the Southern Manifesto to verify that fact. Following the holding of the United States Supreme Court in Brown v. Board of Education, which reversed 60 years of “separate but equal” accommodations for the races, 101 of the 128 Southern Congressional members announced their determination to “use all lawful means” to prevent the enforcement of Brown within their states. The vehicle for stating the reasons for this resistance was the Southern Manifesto. The Southern Manifesto had an immediate impact, and six states, including Mississippi, formally passed “interposition” legislation stating their intent to refuse to implement directives of the court’s opinion in Brown v. Board of Education.

Ironically, the language used in these pieces of legislation is strikingly similar to that of Mississippi House Bill 490. It should be clearly pointed out that House Bill 490 is in no way reviving any issues related to racial desegregation, but rather it represents a modern attempt to reassert the superior power of state authority in contests between state and federal policies. Far from being a hastily thrown together piece of legislation, House Bill 490 rather carefully describes the boundaries between state and federal powers to act, and it does so by addressing bedrock language in the U. S. Constitution that has been used in the past to assert federal supremacy. Of course, House Bill 490 depends heavily on the 10th amendment of the Constitution and its language reserving to the states and the people all powers not delegated to the federal government.

All civics and government teachers should get a copy of the bill and use it as an excellent teaching tool. Like so many efforts at gaining acceptance of principles such as nullification and interposition before it, most observers are of the opinion that House Bill 490 has little chance of passing, and if it did it could never be put into force. But hopefully, it can come to the floor for a couple of hours of debate.

Such a re-airing of the archaic principles of “nullification and interposition” and a renewed debate on state sovereignty would be worth a month’s worth of lesson plans for educators.

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One Response to “Nullification and interposition”

  1. Debra L Ferguson Says:

    Thank you for such a detailed explanation. My favorite line: Few states have invested as much of their history in formulating theories and strategies for active resistance against the federal government as has the state of Mississippi.

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