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The States’ Duty to Defend Against Federal Excess: James Madison and the Methods of “Interposition”

July 5, 2016

During legislative sessions this year, 88 proposals related to reform of the U.S. Constitution were introduced in 39 states, and eight states fully enacted constitutional reform legislation.

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During legislative sessions this year, 88 proposals related to reform of the U.S. Constitution were introduced in 39 states, and eight states fully enacted constitutional reform legislation. To date, 32 states have enacted at least one form of constitutional reform legislation.

As constitutional scholar Rob Natelson notes in the enclosed Heartland Policy Brief, those proactive state legislatures weren’t merely exercising a constitutional option: They were performing a solemn duty. He writes:

State officials take an oath to preserve the U.S. Constitution. [James] Madison and other Founders ... emphasized state officials’ obligation to interpose in a constitutional manner when the people are threatened by federal overreaching. Such interposition is not a mere option. It is a solemn duty.

The U.S. Constitution not only allows but requires state elected officials to resist when the federal government exceeds its constitutional authority.

Natelson describes six methods of interposition explicitly authorized by the Constitution and two Madison identified as “extraconstitutional” – essentially mechanisms of last resort to be used only when all six constitutional methods had been exhausted.

Author
Robert G. “Rob” Natelson is widely acknowledged to be the country’s leading scholar on the Constitution's amendment procedure, and among the leaders on several other topics.
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