Sanctuary Cities: A Study in Modern Nullification?

The Nullification Crisis began as a debate over trade policy. After the War of 1812, the federal government passed a series of tariffs to protect and strengthen New England’s fledgling industry. New England’s industry prospered, but as a result, the price of foreign goods on the American market also increased. Initially, Americans across the country—Calhoun included—supported the measure.

William J. Watkins, Jr., Reclaiming the American Revolution: The Virginia and Kentucky Resolutions and Their Legacy (henceforth Reclaiming) 97 (2004).

By 1816, the tariff averaged 25 percent, and in 1824 it had risen to approximately 33 ½ percent.

Id.

The election of Andrew Jackson in 1828 temporarily cooled the controversy, as Southerners expected the Tennessean to reduce the tariff.

Id. at 99.

In the Exposition and Protest, the sectional and counter-majoritarian nature of South Carolina’s frustration becomes clear. “[T]he Tariff,” Calhoun fumed, “gives them a prohibition against foreign competition in our own market, in the sale of their goods, and deprives us of the benefit of a competition of purchasers for our raw materials.”

Exposition and Protest Reported by the Special Committee of the House of Representative on the Tariff; Read and Ordered to be Printed, Dec. 19th 1828 (henceforth Exposition and Protest) 12 (Columbia, D.W. Sims 1829) (emphasis added).

As a result of the conflict’s sectional nature, South Carolina scoffed at the idea of proposing a constitutional amendment to remedy the situation. “How absurd then,” Calhoun argued, “to compel one of the injured states, to attempt a remedy by proposing an amendment to be ratified by three fourths of the states, when there is by supposition a majority opposed to it.”

Id. at 36.

Ultimately, it is this sectionalism and counter-majoritarianism which pushed South Carolina to adopt nullification, allowing resistance by an individual state.

Calhoun’s solution to the constitutional instability inevitably provoked by nullification further highlights nullification’s counter-majoritarian nature. Calhoun argued that “the States themselves may be appealed to, three-fourths of which, in fact, form a power, whose decrees are the Constitution itself, and whose voice can silence all discontent.” James J. Kilpatrick, The Sovereign States: Notes of a Citizen of Virginia, 196 (1957). Under Calhoun’s logic, a single state’s interpretation of the Constitution remained legitimate until ¾ of the states overturned its interpretation by constitutional amendment; the disapproval of a simple majority would not suffice. The presumption of constitutionality favored the individual state rather than the collective. Nevertheless, Calhoun’s solution recognized that state sovereignty under the Constitution was not unlimited.

Following the publication of the Exposition and Protest in 1828, the South Carolina legislature debated how to proceed. The “nullifiers” in the legislature advocated calling a state convention to arrest the tariff’s operation in South Carolina. The nullifiers’ insistence on calling a convention—rather than simply nullifying the tariff through the legislature—reflected their and Calhoun’s belief that “[s]tates are [the] instruments by which the people may assert their rights.”

Clyde N. Wilson, Nullification Reconsidered, inNullification: Reclaiming the Consent of the Governed 6, 8 (2016).

In 1831, during a statewide nullification campaign, then-Vice President Calhoun delivered his famous Fort Hill Address. In that address, he claimed Jefferson and Madison’s 1798 writings on interposition and nullification as authority. He referred to both Madison’s Report of 1800

Madison wrote the Report of 1800 to respond to criticisms of his Virginia Resolutions of 1798.

That next year, in 1832, Congress passed a new tariff. Though it reduced the rate to 25 percent for certain goods, it retained the 50 percent rate for iron, wool and cotton; and, to add insult to injury for those who believed Congress could only collect duties to “pay Debts,” the Treasury projected a surplus.

Watkins, Reclaiming, supra note 25, at 107.

In a document entitled “An Ordinance To Nullify Certain Acts of the Congress of the United States, Purporting to be Laws, Laying Duties and Imposts on the Importation of Foreign Commodities,” the convention declared the tariff “null, void and no law, nor binding upon this State, its officers or its citizens.”

An Ordinance To Nullify Certain Acts of the Congress of the United States, Purporting to be Laws, Laying Duties and Imposts on the Importation of Foreign Commodities, inState Documents on Federal Relations: The States and the United States (henceforth Documents), 170, 171 (Herman V. Ames ed., The Lawbook Exchange 2nd ed. 2007) (1906).

Comparisons between the sanctuary movement and the South Carolina nullifiers are thus inappropriate from both a theoretical and a practical perspective. Theoretically, South Carolina’s actions were rooted in a version of compact theory which envisioned each individual state as a party to the Constitution. As such a party, South Carolina insisted on exercising its right to judge infractions of the constitutional compact. Practically, South Carolina’s nullification operated through a convention, reflecting its conviction that the people act through the states, rather than directly through the federal government.

Indeed, before the passage of the 17^th Amendment, which allowed for the direct election of Senators, the Constitution more strongly reflected this view as well.

As of Spring 2019, neither California nor any other state appears to have any plans to call a nullification convention to address the sanctuary issue. Neither has any state or city formally appealed to compact theory to justify its opposition to federal immigration policy—much less a version of compact theory which denies the collective nature of the constitutional order. Without compact theory and without a state convention, any comparison to South Carolina’s nullification is destined to be superficial at best. Compact theory and convention-calling were not mere “add-ons” or formalities—they represented the basis of South Carolina’s entire theory of the Union, and of nullification.

Legal author William Watkins of the Independent Institute summarized the issue succinctly: “Sanctuary cities do not base their actions on the constituent power of the people of the states. No special conventions have been held…Put simply, there is no nullification.”

Watkins, supra note 24.

Historian Thomas E. Woods Jr. describes the perennial controversy surrounding nullification and interposition as revolving around the following question: “What was the United States supposed to be, anyway?”

Woods, supra note 43, at 87.

That important question is by no means a new one. From the moment the Revolution ended, people argued about what the United States was or should be. Nationalists and centralizers clashed with decentralizers and localists. The states’ first governing documents—the Articles of Confederation—embodied decentralizing, localist ideals. Many—Madison included—quickly became frustrated by the Articles, however. When a convention gathered in Philadelphia during the summer of 1787 to discuss revising the Articles, delegates argued about the optimal distribution of power among the states, and between the states and the as-of-yet created federal—or “general”

The founding generation often called what we now refer to as the “federal government” the “general government.”

The debate did not end with what ultimately became the Constitutional Convention, or with the drafting of the Constitution, however. Many were suspicious of the new document, which they believed vested “absolute and uncountrolable power” in the central government.

Brutus, Excerpts from Brutus No. 1 (Bill of Rights Institute ed.), https://docs-of-freedom.s3.amazonaws.com/uploads/document/attachment/440/Brutus_No_1_Excerpts_Annotated_Proof_3__1_.pdf.

Yet, just as the debate had not ended with the Constitution’s drafting, it did not end with its ratification. Nineteenth-century journalist and Congressionalist minister Edmund Payson Powell described the perennial struggle as an inevitability, declaring: “It was destined that American history, down to the present time at least, should be a conflict of Hamiltonian and Jeffersonian ideas and methods”

Edmund Payson Powell, Nullification and Secession in the United States: A History of the Six Attempts During the First Century of the Republic, 52 (New York, G.P. Putnam’s Sons 1898).

The events of 1798 have their origins in the geopolitical conflict between Britain and France. Despite having declared—and secured—their independence from Britain, the American states remained subject to European influence at the close of the 18th century. A debate soon emerged in the young republic as to whether the United States should align itself with Britain or with France, particularly as France and Britain went to war in 1793.

Watkins, Reclaimingsupra note 25, at 11-12.

In response to rising tensions with its former colonial master, the United States signed the Jay Treaty with Britain in 1795. Many Americans, still suspicious of the British and their sympathizers, felt the treaty failed to further American interests.

Powell, at 56-57.

As a result, the French Revolution—which in many Americans’ minds, had fast turned from inspiring to horrifying—further exacerbated tensions between the pro-British and pro-French factions. Even erstwhile supporters of the French revolutionaries, such as Jefferson himself, disavowed the Revolution’s transformation from struggle for independence to Reign of Terror; despite such disavowals, Federalists began branding Republicans as unpatriotic supporters of anarchy and bloodshed.

Powell, at 15; See alsoLuigi Marci Bassani, Liberty, State & Union: the Political Theory of Thomas Jefferson, 169 (2010).

John Adams assumed office in 1797 amid these rising tensions. Soon after the United States signed the Jay Treaty, France responded by harassing American ships.

Watkins, Reclaiming, supra note 25, at 20.

In response and with Adams’ support, the Federalist Congress began by tightening naturalization requirements in the Spring of ’98. This first Federalist bill increased the pre-naturalization residency requirement from 5 to 14 years.

Id. at 29.

Republicans were particularly bothered by the Alien Friends Act, which they believed overstepped the Constitution. The Alien Friends Acts, signed into law in the summer of 1798, enabled the President to remove foreigners “dangerous to the peace and safety of the United States.”

An Act Concerning Aliens, inThe Virginia Report of 1799-1800, Touching the Alien and Sedition Laws; Together with the Virginia Resolutions of December 21, 1798, The Debate and Proceedings Thereon in the House of Delegates of Virginia, and Several Other Documents Illustrative of the Report and Resolutions (henceforth Randolph’s Report) 2, 2 (J. W. Randolph ed., Philadelphia, C. Sherman 1850).

The Federalists not only passed laws touching aliens, however, but also American citizens. The Sedition Act, signed a few weeks after the Alien Acts, targeted dissenters writ large.

See generally Sedition Act, inRandolph’s Report 19 at 19-21.

Compared to the Alien Acts, which were rarely if ever used, the Sedition Act claimed several high profile victims. All told, “at least 25 people were arrested for criticizing the government and approximately 14 were indicted.”

Watkins, supra note 25, at 43.

One early victim was Matthew Lyon, a bombastic and unyielding Congressman from Vermont.

Lyon was once reprimanded by the House for spitting tobacco juice at fellow Representative Roger Griswold (F – CT) in response to an insult, earning him the nickname “The Spitting Lyon.” Griswold later retaliated by attacking Lyon with a cane—which attack Lyon deflected with a pair of fire tongs. Incivility, it would appear, is not a modern phenomenon. See e.g. Andrew Glass, Griswold-Lyon Fight Erupts on House Floor, Feb. 15, 1798, Politico (Feb. 15, 2011), https://www.politico.com/story/2011/02/griswold-lyon-fight-erupts-on-house-floor-feb-15-1798-049518.

Though the Federalists and their judges scored temporary victories against Lyon and the like, their heavy-handed approach only fanned the flames of opposition, and convictions created a pantheon of Republican martyrs. If Adams hoped the Alien and Sedition Acts would encourage domestic tranquility, he was sorely mistaken. Most significantly, his actions directly inspired the Virginia and Kentucky Resolutions—and the resulting doctrines of interposition and nullification.

Nullification’s primary aim is the defense of state sovereignty. It holds that a state may, by right, strike unconstitutional federal laws within its territory. Not only may individual states decide whether or not federal laws are constitutional, but they may also invalidate laws they deem unconstitutional. As a useful analogy, constitutional scholar Sanford Levinson has compared nullification to “the authority to issue an injunction” against federal law.

Levinson, supra note 22, at 45.

Underlying nullification are the concepts of consent, constitutionalism and compact theory. The doctrine itself was initially articulated by Thomas Jefferson in his draft of the Kentucky Resolutions of 1798, and then again by the Kentucky legislature in its Resolutions of 1799. Nullification was controversial from the beginning—even before the South Carolina Nullification Crisis. Then as now, both supporters and opponents understood nullification as embracing a strong role for the states, and a comparatively weaker role for the federal government.

Interposition’s primary aim is the preservation of checks and balance and the protection of individual liberties.

In defining the primary aims of nullification and interposition differently, I am not suggesting that interposition does not aim to uphold state sovereignty, or that nullification does not aim to preserve checks and balances or protect individual liberties. Rather, it is a question of which aims predominate. Usually, all of these aims are compatible. Sometimes, however, these aims may clash: states may infringe on personal liberties, or one branch of government may act contrary to the popular will. Which party prevails depends on which aims decision-makers prioritize.

Like nullification, interposition relies on constitutionalism and, to a lesser degree, compact theory. James Madison advocated interposition in his Virginia Resolutions of 1798, then further developed the concept in his Report of 1800. As with nullification, interposition was initially controversial in that it presented a challenge to judicial supremacy. The idea rapidly gained acceptance after the Alien and Sedition Crisis passed, however, and was repeatedly deployed to maintain the constitutional balance of power and resist federal encroachment on individual liberties.

Interposition is rooted in the idea that government must act within certain agreed-upon parameters—in other words, constitutionally. Interposition is also rooted in the idea that the states, rather than being mere administrative jurisdictions or geographical designations, enjoy an independent political personality. To the extent that compact theory holds that the states were parties to the constitution, interposition, like nullification, reflects compact theory; it rejects the nationalist view that the federal government was created solely by the people.

As legal historian Christian Fritz has explained, the concept of “interposition” came from the scientific thought of the day: “as used in astronomical and scientific texts of the period, it described the movement of something between two other things in a relationship so as to interrupt and bring attention to the essence of that relationship.”

Fritz, supra note 1, at 2-3.

James Madison famously used the term “interpose” in his Virginia Resolutions of 1798.

James Madison, Resolutions of Virginia of December 21, 1798, inRandolph’s Report 22 at 22. Madison did not, however, invent the practice of using the state legislature to oppose unconstitutional actions. In 1790, the Virginia Assembly issued a “memorial” opposing the federal government’s assumption of state debt. The Assembly described themselves as “guardians…of the rights and interests of their constituents, as sentinels placed by them over the ministers of the foederal [sic] government, to shield it from their encroachments, or at least to sound the alarm when it is threatened with invasion.” According to the Assembly, the assumption of debts deserved “censure” because it was “not warranted by the constitution of the United States.” The General Assembly of the Commonwealth of Virginia, Virginia On the Assumption of State Debt, December 16, 1790, in Documents 4 at 5-6.

In the first and second paragraphs, the Resolutions express the state’s attachment to the Constitution and to the Union.

Id.

Interposition has become necessary, the third paragraph explains, because of the government’s tendency to “enlarge its powers by forced construction of the constitutional charters.” Especially egregious has been the government’s use of the constitution to justify the Alien and Sedition Acts. Both Acts, the Resolutions argue, exercise “power not delegated by the Constitution.”

Id. at 23.

In closing—and as a clue to what interposition could involve in practice— the Resolutions reassert Virginia’s commitment to the Union before calling for the states to “concur with this commonwealth, as it does hereby declare, that the acts aforesaid are unconstitutional” and requesting that the governor “transmit a copy of the foregoing resolutions to the executive authority of each of the other states.”

Id.

Madison intended the Virginia Resolutions as a defense of both individual liberties and checks and balances. Rather than seeking to encourage states to “annul” unconstitutional legislation within their borders, Madison meant the Resolutions as a “warning to call the federal government to a halt, made public in order to induce those who were originally party to the constitutional compact to join in… protest.”

Bassani, supra note 70, at 94 (internal quotations removed).

In drafting the Resolutions, Madison adopted a cautious, consensus-building approach. While the Kentucky Resolutions opened by emphasizing the states’ reserved power, the Virginia Resolutions opened on a cooperative and conciliatory note emphasizing their attachment to the Constitution and “to the union of the states.”

Woods, supra note 43, at 147.

***

Madison lived until 1836, giving him the opportunity to witness—and denounce—South Carolina’s adaptation of his and Jefferson’s ideas in the early 1830s.

Jefferson had died a decade earlier, in 1826.

Though Madison personally opposed the “Tariff of Abominations,” he disavowed Calhoun’s “novel and nullifying doctrine,”

Madison to W. Rives, March 12, 1833; see also Watkins, supra note 24,, at 112-13.

Yet, beyond the vague calls for “concurrence and co-operation,” Madison’s Notes—like the Virginia Resolutions themselves—assiduously avoided defining “interposition” in unique and practical terms. Even in an 1833 letter to his friend William Cabell Rives, Madison remained vague, only explaining that

Though Madison blamed the nullifiers’ “nullifying misconstruction”

Madison, Notes at 580.

As a result, some scholars have criticized Madison for a perceived inconsistency, calling him “a superficial and inconsistent thinker” who contradicted “his own plain language” of 1798 by opposing state resistance in 1832.

Wilson, Jefferson and Nullification, inNullification: Reclaiming the Consent of the Governed 1 at 3.

Unlike Jefferson, who believed “the true barriers of our liberty in this country are our state-governments,”

Jefferson, supra note 142.

Furthermore, even in his own Virginia Resolutions, Madison arguably avoided the positions which the nullifiers ascribed to him. First, Madison never clearly called for states to invalidate federal law, preferring the term interpose—which suggests an intermediary role as an agent of protest, rather that of a final arbiter. Even Koch and Ammon, who conflate Madison and Jefferson’s thought throughout their article, admit that Madison “did not think, as did Jefferson, that under the Constitution the state was justified in declaring federal laws ‘null, void, and no effect.’

Koch & Ammon, supra note 148, at 162.

Madison’s apparent reversal in 1798 was then not so much a change of mind as a change of strategy brought about by a change of circumstance. Unlike in 1787, it was the federal government, rather than the state governments, which appeared to pose the greatest danger to the people’s liberties in 1798. As historian Kevin Gutzman has explained, Madison’s thinking about federalism was “variable,” and reflective of the relative strengths of the federal and state governments at different times.”

Id. at 570.

While Madison was willing to use states’ rights arguments in 1798 to protect civil liberties and restore the constitutional balance of power, he was not willing to deploy those arguments in defense of South Carolina’s sectional interests. Unlike the Alien and Sedition Acts, the tariff did not encroach upon personal liberties, or an area reserved for state regulation.

Perhaps most revealing, however, was Madison’s objection to the nullifiers’ view that “the States have never parted with an Atom of their sovereignty; and consequently that the Constitutional hand which holds them together, is a mere league or partnership, without any of the characteristics of sovereignty or nationality.”

Id. Madison was likely not overstating the nullifiers’ view. In his “Discourse on the Constitution and Government of the United States,” Calhoun described the federal government’s powers as “trust powers.” He denied that the states had “absolutely transferred” their powers to the federal government, or that they had formed a “national” government. John C. Calhoun, A Discourse on the Constitution and Government of the United States, in 1 The Works of John C. Calhoun 111, 113, 143 (Columbia, A. S. Johnston, Richard K. Cralle ed., 1851).

Overall, Virginia legislators appear to have been animated by a variety of concerns—asserting state sovereignty, upholding the Constitution, preserving the Union, and defending individual liberties. Like Madison, however, the Virginia legislature ultimately opted to issue resolutions which would inspire broad-based support, though some members also personally supported the more robust vision of resistance embodied in the Kentucky Resolutions.

The final edits to the Virginia Resolution distanced these from their companion documents in Kentucky by de-emphasizing the nullity of unconstitutional laws and the right to individual state action. First, the Virginia legislature voted to remove language declaring the Alien and Seditions Acts “null, void, and of no force, or effect.”

In the House of Delegates, Friday, December 21, 1798, inRandolph’s Report 122 at 150.

While the removal of the “null and void” language is quite telling in regards to Madison’s intent, it should not be interpreted as meaning that the legislature as a whole rejected the idea that unconstitutional laws were null and void. Virginia Del. Johnston, for example, stated that “whether the laws were said by the committee to be null and void, or not, was a matter, he thought, of little consequence. For if they were unconstitutional, they of course, were null and void.”

Peter Johnston, In the House of Delegates, Thursday, December 20, 1798, inRandolph’s Report 103 at 111.

Whether or not Dels. Johnston or Daniel considered the right of declaring laws “null and void” as belonging to individual states or the states collectively is unclear from these comments. Comments by other delegates, however, suggest sympathy towards the individual state action position. Del. Foushee, for example, supported the Resolutions by stating that “the states individually were sovereign before and at the time of the adoption of the Constitution…and still are.”

William Foushee, In the House of Delegates, Thursday, December 18, 1798, inRandolph’s Report 71 at 76.

Also difficult to interpret is a second change to the Resolutions—the removal of the word “alone” from the statement that the “states alone are parties” to the compact;

See William B. Giles, In the House of Delegates, Friday, December 21, 1798, inRandolph’s Report 122 at 149; Wilson C. Nicholas, In the House of Delegates, Friday, December 21, 1798, inRandolph’s Report 122 at 149; Commentary to John Taylor, In the House of Delegates, Friday, December 21, 1798, inRandolph’s Report 122 at 150.

Indeed, Virginia legislators consistently highlighted the Federalists’ perceived disregard for the separation of powers, which they considered not only constitutionally indefensible, but also dangerous. Del. Ruffin explained that “Congress alone could determine war or peace: consequently alien enemies were proper subjects for congressional approval: but that alien friends were exclusively subject to the sovereignty of the states.”

William Ruffin, In the House of Delegates, Thursday, December 14, 1798, inRandolph’s Report 29 at 39.

Furthermore, for Republicans, threatening the balance of power threatened the unity and security of the country itself. John Taylor, for example, warned “that oppression was the way to civil war…The way to stop civil war, would be to stop oppression.”

John Taylor, In the House of Delegates, Thursday, December 13, 1798, inRandolph’s Report 24 at 28.

Yet as the delegates attacked the Acts’ constitutional implications, they also decried their immediate effects on individuals. Del. Barbour justified the Resolutions in part by touting the states’ roles as protectors of personal freedoms, arguing that “state legislatures being the immediate representative of the people, and consequently the immediate guardians of their rights, should sound the tocsin of alarm at the approach of danger.”

Barbour, In the House of Delegates, Thursday, December 20, 1798, inRandolph’s Report 53 at 55.

The Virginia Resolutions closed with a call for concurrence and cooperation from the sister-states. Though no legislature other than Kentucky’s joined Virginia in condemning the Acts, several states responded to Virginia, and the Resolutions were widely discussed in the popular press. Generally, contemporaries interpreted the Virginia Resolutions as strong assertions of state sovereignty. Of these, some read them as endorsing individual state action, while even others implied that they encouraged disunion. This variety of responses in 1798-99 foreshadowed the conflicting interpretations of the 1830s.

Several states specifically rejected what they right perceived as Virginia’s challenge to judicial supremacy. Massachusetts denied “the right of state legislatures to denounce the administration of that government to which the people, by a solemn compact, have exclusively committed their national concerns,”

The Senate of the Commonwealth of Massachusetts, Massachusetts to Virginia, inDocuments 18 at 18-20.

Not only opponents of the Resolutions questioned the competence of state legislatures, however. In responding to both sets of Resolutions, New Jersey House Republicans, for example, requested that Congress call a convention to decide the constitutionality of the Acts. Though these Republicans rejected the Federalist argument that “the Supreme Court…is the final arbiter of differences between the federal government and the states,” they also rejected the contention that “each state may judge for itself.”

Frank Maloy Anderson, Contemporary Opinions of the Virginia and Kentucky Resolutions, 5 Am. Hist. Rev. 45, 55 (1899).

Pennsylvania, meanwhile, seemed more distressed that Virginia dared disagree with federal policy than by the state’s particular path of resistance. Pennsylvania responded to Virginia with a mere sentence, criticizing the Resolutions as “calculated to excite unwarrantable discontents, and to destroy the very existence of our government.”

The House of Representatives of the Commonwealth of Pennsylvania, Resolutions of the House of Representatives of Pennsylvania to Virginia, March 11, 1799, inDocuments 22 at 22.

Despite the uproar caused by the ’98 Resolutions, Federalist and Republican legislatures alike resorted to resolution-writing during the early 1800s. Many of these resolves echoed the Virginia Resolutions—and to a lesser degree the Kentucky Resolutions. Though erstwhile opponents’ reimagining of resolution-writing as legitimate protest rather than subversive opposition may have been prompted in part by partisan convenience, the style of these resolves also suggests a genuine desire on the part of legislatures to balance effective local activism with deference to federal authority. Tellingly, while occasional mention was made of Madison or interposition, the word “nullification” appears to have been seldom used after 1799.

I was unable to find a single instance of the word’s use in all the resolves included in Herman V. Ames’ multi-volume collection, State Documents on Federal Relations (herein Documents).

An early series of resolves opposing the Embargo Act displayed a basic willingness to challenge the federal government through state legislatures, but underplayed state sovereignty even relative to the Virginia Resolutions; these resolves emphasized the protection of personal liberties, and the maintenance of checks and balances. President Jefferson had signed the embargo—which closed ports and restricted trade—to retaliate against British and French attacks on American ships.

Embargo of 1807, Thomas Jefferson Encyclopedia, https://www.monticello.org/site/research-and-collections/embargo-1807.

Federalists in the Delaware House drafted resolves calling for a repeal of the embargo in 1809;

The resolves remained in draft form, however, as the House and Senate could not agree on a final version. Ames, Delaware and the Embargo, in Documents 36 at 36.

Connecticut’s resolves of that same year, along with an address from its governor, John Turnbull, also emphasized the state’s role as a “protecting shield between the right and liberty of the people, and the assumed power of the General Government” and directly referenced the “right…to interpose.”

Jonathan Turnbull, Speech of Governor Jonathan Turnbull at the Opening of the Special Session of the Legislature, February 23, 1809, inDocuments 39 at 40.

Resolves passed by Pennsylvania and Virginia in 1811 to oppose the renewal of the Bank of the United States, approximated aspects of the ’98 Resolutions, but stopped short of adopting strong state-centric positions. Pennsylvania’s resolves specifically referred to the “compact” and stated that “the general government… was not constituted the exclusive or final judge of the powers it was to exercise.”

The General Assembly of the Commonwealth of Pennsylvania, Resolutions of Pennsylvania Against the Bank, in Documents 53 at 53.

Massachusetts’ 1814 Report and Resolutions against the embargo represented a high-point in Madisonian interposition. Not only did the Report and Resolutions use the term “interpose,”

The Massachusetts resolves describe the state as “bound to interpose its powers, and wrest from the oppressor his victim.” The General Court of the Commonwealth of Massachusetts, The General Court of Massachusetts on the Embargo, February 22, 1814, inDocuments 69 at 72.

Most significantly, the report demonstrates that Massachusetts—at least at that time—understood Madison as having encouraged the states to call a convention for the purpose of amending the Constitution, rather than as having recognized a state veto on federal legislation, or some other form of individual state action. Though the Virginia Resolutions did not specifically call for a convention, Madison suggested in his 1799 defense of the Resolutions that “[t]he Article V Convention was a tool of potential state ‘interposition’ against congressional abuse.”

Robert Natelson, James Madison and the Constitution’s “Conventions for Proposing Amendments,” in Union & States’ Rights, supra note 1, at 37.

Like the inter-Crisis interposers, the sanctuary movement has relied on personal liberties and checks and balances-type arguments. Sanctuary advocates have argued that sanctuary laws protect aliens from “arbitrary prosecutorial action,”

David Post, Let’s Call Them ‘Constitutional Cities,’ Not ‘Sanctuary Cities,’ Ok?, The Washington Post (Mar. 30, 2017), https://www.washingtonpost.com/news/volokh-conspiracy/wp/2017/03/30/lets-call-them-constitutional-cities-not-sanctuary-cities-okay/?utm_term=.b5b597ab5ed0.

Likewise, anti-commandeering—the sanctuary movement’s preferred means of challenging federal immigration policy in court—aims to promote personal liberties and checks and balances, rather than state sovereignty as such. In the landmark New York v. United States, the Supreme Court explained that “[t]he Constitution does not protect the sovereignty of States for the benefit of the States or state governments as abstract political entities, or even for the benefit of the public officials governing the States. To the contrary, the Constitution divides authority between federal and state governments for the protection of individuals. State sovereignty is not just an end in itself: Rather, federalism secures to citizens the liberties that derive from the diffusion of sovereign power.”

New York v. United States, 505 U.S. at 181 (internal citations omitted).

Sanctuary advocates, like the interposers, have also stopped short of purporting to invalidate federal law, preferring to simply frustrate its application. San Francisco or other localities’ refusal to assist federal immigration authorities is more akin to Connecticut’s refusal to enforce the embargo than South Carolina’s outright prohibition on tariff collection by both state and federal officers. In Connecticut’s refusal to enlist its militia to enforce federal law may be seen the seeds of modern anti-commandeering doctrine, which the sanctuary movement has used to justify its non-cooperation with ICE officers.

See supra notes 173-75.

Nevertheless, important differences remain between the sanctuary movement and Madisonian interposition. In terms of theory, Madison and his successors regularly invoked the “compact.” Though Madison and Jefferson’s conception of the “compact” differed, both agreed that the federal government was to a certain extent the creation of the sovereign states—a concept which the sanctuary movement has not appealed to, even in its collective, Madisonian form. In terms of practice, interposers, like nullifiers, also typically issued resolves through state legislatures. By contrast, the sanctuary movement has been largely city-based, and has not engaged in widespread state-level resolve-writing—highlighting the movement’s disinterest in compact theory. Ultimately, however, the comparison remains more apt—and less damning

Though infrequently discussed in the scholarly literature, interposition has received favorable treatment by some mainstream academics. See e.g. Christian Fritz, Interposition: An Overlooked Tool of American Constitutionalism, inUnion & States’ Rights, supra note 1, at 165. Nullification, by contrast, is generally regarded with suspicion.