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The Tenth Amendment and Interposition

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The doctrine of interposition is based on the biblical truth that the powers that be, the rulers of civil government, are ordained by God and are His ministers (see Romans 13:1-10 for this and the discussion which follows). As God’s ministers they are to serve Him—not anyone else. They are to serve Him by protecting and giving praise to those who do good, and by punishing, and therefore restraining, those who do evil. As God’s ministers they must follow, obey, and apply His definitions or standards of what is good and what is evil: not their own, nor anyone else’s definitions or standards of good and evil.

Now, all the rulers of civil government — no matter what their level or scope of authority — are ordained by God to be His ministers. All the officials of civil government, not only the highest one or ones, are obligated to serve God rather than men, and to obey and apply God’s standards of good and evil in order to protect those who do good and restrain, by punishing, those who do evil.

Romans 13:8-10 makes it unmistakably clear (if we missed the clear implication of Romans 13:1-7) that God’s law defines good and evil, and that the rulers or officials of civil government — no matter what their level of authority — are to function in terms of God’s law. All rulers of civil government have a duty to God to protect those under their authority against those who do evil: all those who do evil.

Since all rulers or officials of civil government are men, and therefore sinners who are tempted to do evil, no ruler of civil government is justified in doing evil or in making, enforcing, or adjudicating a law (or set of laws), rule, regulation, decree, order, or decision which is evil or which harms those who do good. This is true of the highest-ranking officials of civil government as well as of the lowest-ranking officials of civil government.

The fact that a ruler or official of civil government is in an office of high — even the highest — authority does not and cannot justify him in using his exalted office to do evil. The fact that an official of civil government is in an office of lower — even the lowest — authority does not and cannot justify him in cooperating with a higher authority in enforcing an evil law, regulation, or decision.

Since the “lesser civil magistrates,” or lower-ranking civil government officials are God’s ministers too, they have a duty as God’s servants to protect those under their authority from evil laws, policies, decisions, etc. enacted, decreed, or promulgated by higher-ranking civil government officials.

The doctrine of interposition holds that the lower-ranking civil government officials must place themselves “between” (inter-position, inter-pose) the higher-ranking civil government official(s) who is (are) attempting to enforce an evil law, policy, decision, etc. and the people under the lower-ranking civil government official’s authority. It is the duty of the lesser as well as the greater civil government officials to serve God by protecting the people under their authority against injustice and tyranny (evil) from all sources. For lower-ranking civil government officials, this means protecting the people under their authority against evil laws, policies, etc. mandated by the king or any higher-ranking civil government officials or institutions. Thus the lower-ranking civil government officials have an inescapable duty to use their civil government authority to render unjust or evil laws, policies, decisions, etc. set forth by higher-ranking civil government officials or institutions of none effect, to nullify such violations of God’s law, to make sure that they are not enforced.

The framers and ratifiers of our Constitution certainly believed in the doctrine of interposition. They had used it in resisting the tyrannical rule of King George III-in-Parliament, and in declaring and winning the independence of their states. They had presupposed it and in effect designed it into our first constitution, the Articles of Confederation. They presupposed it in enabling the states to break away from the Articles of Confederation in order to ratify the Constitution — as no less an authority than James Madison argued in Federalist No. 43: maintaining that such action was based on principles prior to all forms of civil government, the principles of the law of compacts, principles of the very “laws of nature and of Nature’s God.”

While the Constitution presupposed the validity of interposition, the framers and ratifiers of our Constitution intentionally gave us a system of separation of powers with accompanying checks and balances to both give us a means of resisting injustice and tyranny emanating from the central government and use the self-interest of civil government officials to protect justice and liberty against the effects of faction and evil ambition. That system of separation of powers and checks and balances gave the states which delegated some of their powers to form the new Constitution certain means of internal resistance to factional dominance of the central government: a written constitution, selection of senators from their respective states, equal representation of states as states in the Senate (regardless of population, wealth, or any other criteria), election of U.S. senators by their respective state legislatures (destroyed by the 17th Amendment in 1913), and even selection of members from the House of Representatives from districts in their respective states (rather than, say, from larger regions of the country or nationally).

That system of separation of powers with accompanying checks and balances really included (if we neglect the states’ own systems of separation of powers with checks and balances) both the famous division of powers in our national/central government and — as Madison stated so clearly in Federalist No. 51 — a division of powers between the central government and the state governments:

In the compound republic of America, the power surrendered by the people is first divided between two distinct governments, and then the portion allotted to each subdivided among distinct and separate departments. Hence a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.

The federal system of America — our double security to the rights of the people — was based on a realistic understanding of human nature, on man’s love of power, which would lead the officials of the state governments to resist attempts by central government officials and institutions to usurp state governments’ authority and powers. As Hamilton noted in Federalist No. 28:

It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority. Projects of usurpation cannot be masked under pretences so likely to escape the penetration of select bodies of men, as of the people at large. The [states’] legislatures will have better means of information. They can discover the danger at a distance; and possessing all the organs of civil power, and the confidence of the people, they can at once adopt a regular plan of opposition, in which they can combine all the resources of the community. They can readily communicate with each other in the different States, and unite their common forces for the protection of their common liberty.    

Note that Hamilton was speaking in this commonly neglected number of The Federalist of the exercise of “that original right of self-defense which is paramount to all positive forms of government” which is the last resource “[i]f the representatives of the people betray their constituents...” Consistent with biblical teaching on resistance to tyranny, Hamilton made resort to arms the last stage in resistance. Our federal system gave us various political means of defense which the states and their people were to use before the ultimate resort to arms. These were collectively a system of constitutional interposition by which the states could cooperate to thwart central government tyranny — a means of avoiding, if possible, necessity of the states’ exercise of the ultimate right of interposition.

But that federal system of separation of powers, as Hamilton noted in Federalist No. 28, is also based on the understanding of the people and their dedication to the preservation of their own liberty:

The obstacles to usurpation and the facilities of resistance increase with the increased extent of the state, provided the citizens understand their rights and are disposed to defend them….in a confederacy the people, without exaggeration, may be said to be entirely the masters of their own fate. Power being almost always the rival of power, the general government will at all times stand ready to check the usurpations of the state governments, and these will have the same disposition towards the general government. The people, by throwing themselves into either scale, will infallibly make it preponderate. If their rights are invaded by either, they can make use of the other as the instrument of redress.

Do enough Americans today understand our rights? Are enough Americans disposed to defend our liberty? Do enough understand the constitutional means of using the powers of the states to defend and recover our liberty? The Tenth Amendment’s statement that the powers not delegated by the people of the states to the central government are retained by the people of the states respectively was meant to make Americans understand our rights and those of our states, to protect our constitutional system of interposition, and so to motivate us to defend our liberty before we let conditions become so dire that we urge our states to resort to our ultimate defense against centralized tyranny.

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Article posted July 15, 2009

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