The Doctrine of Interposition
The Sovereign States
Notes of a Citizen of Virginia
By James Jack-Son Kilpatrick. Regnery. 347 pp. $5.00.
For more than three years now the country has been living with a constitutional crisis. It already manifests all the important characteristics of the classic constitutional crises of the past. Seven states of the South, taking common council over a matter of deep concern to them, have defied a branch of the Federal government, the Supreme Court, on the ground that the authority claimed in the school segregation decision of 1954 is unconstitutional. The legislatures of six of these states have asserted their right to challenge the Court by appealing to the doctrine of “interposition,” a concept of 18th-century origin according to which an individual state may oppose any Federal action which it believes encroaches on its sovereignty. James Madison used the doctrine in the Virginia Resolutions of 1798, which sought “to interpose for arresting the progress of the evil” of Federalist usurpation, and it was repeatedly resorted to in the 19th century.
Although he does not advance the claim himself, Mr. Kilpatrick has been credited with reviving the device of interposition in our own day. Since 1949, when he succeeded Douglas Southall Freeman as editor of the Richmond News Leader at the age of twenty-nine, Mr. Kilpatrick has taken a leading role in the agitation for Southern resistance. He describes himself as “a States’ Righter and a Tenth Amendment conservative” and his book as “not a work of history [but] a work of advocacy. The intention,” he declares, “is not primarily to inform, but to exhort. The aim is not to be objective; it is to be partisan.”
In spite of his bellicose stance and a considerable amount of special pleading, Mr. Kilpatrick’s book is singularly free of ranting. It reveals an acquaintance with both the classic literature and the modern scholarship of constitutional history and shows a decent respect for the opinions of the majority. It is not another pamphlet of a racist demagogue. Mr. Kilpatrick devotes only a few pages to the Southern position on segregated schools and all but tacitly admits that majority opinion outside the South is beyond the reach of argument on the subject. “It is not the primary purpose of this essay to defend school segregation,” he says. “To paraphrase Mr. Chief Justice Marshall, it is a Constitution that is being here expounded.” The Sovereign States, then, is a serious work of polemics, the major literary gun that has spoken so far from behind the Southern lines.
Mr. Kilpatrick has no difficulty in mustering great numbers of instances in which states have imposed a check or a veto upon Federal encroachments. These “interpositions” range from mild remonstrance to stern nullification. It is also a simple matter for him to demonstrate that “States’ rights is not a doctrine peculiar to the South” and to show that every region and just about every state in the Union has at one time or another challenged or vetoed Federal authority. He calls the roll of “four-teen respected and honored Northern States engaged in this prolonged and generally successful interposition of their sovereign powers” against fugitive slave laws, and adds the names of twenty-two Northern states who took action against the Supreme Court’s Dred Scott decision. His favorite argument is tu quoque: “This is what you said then, gentlemen,” or “This is Massachusetts speaking,” or Wisconsin or Ohio.
It is true that Mr. Kilpatrick derives most of his comfort from the period before the Civil War. More than two-thirds of his book is devoted to that period and half of that to the 1790’s, when the great Virginia champions of state sovereignty were in full voice. But he will not agree with Chief Justice Chase that “the victory of the North killed State sovereignty” nor concede that Lee surrendered the Tenth Amendment as well as his army at Appomattox.
Thirty-five years ago Professor Arthur M. Schlesinger published an article on “The State Rights Fetish” in which he demonstrated that every political party in our history has appealed to the doctrine when out of power and renounced it upon gaining power, and that states and regions have left the same record of inconsistency. He concluded that “The state rights doctrine has never had any real vitality independent of underlying conditions of vast social, economic or political significance.” Of course this is true, but it is not really very helpful. The point is the doctrine demonstrably does have vitality when the “underlying conditions” are right.
It is a quaint and antique collection of artillery that Mr. Kilpatrick has rolled out of the constitutional arsenal to defend the borders of his sovereign state—ancient smooth-bores and muzzle-loaders from the Revolutionary War, Napoleons from the War of 1812, Parrott guns from the Civil War, and long-buried land mines from way back. One item of very special interest in the recent history of state sovereignty and interposition has been overlooked by Mr. Kilpatrick. Early in 1956 the following legal questions were submitted to the Attorney General of Virginia for his opinion: “Is it within the power of (a) the General Assembly of Virginia by resolution, or (b) the people of Virginia in convention assembled by ordinance, to legally nullify, in whole or in part, the said [public school segregation] decision, or to thereby suspend for any period of time its enforcement in Virginia?” The response of the Attorney General was eloquent in its simplicity: “(a) No, (b) No.”