Page 7


A CONVERSATION ON INTERPOSITION \(James E. Titus is a member of the Department of Government of the University of Texas. AUSTIN A student dropped into my offi the other day. He had that blunt, d rect look students sometimes get a ter losing an argument with a roof mate. He was, he said, interested i finding out about this business inierp osition. The word came out flat and har Knowing he was not to be denied, indicated a chair and took my Doc ments of Atnerican History out of th bookcase. First he wanted to know where thi hard, flat word had come from. I tol him that never before, to my know edge, had the word been used in it present sense as a noun. We Tooke up the Kentucky and Virginia Res lutions of 1798. In the Virginia reso lution, written by James Madison, w found where the word was used, quit incidentally in the text, as a verb”t interpose.” He was curious about these earl resolutions. I told him. that both wer drawn up to express displeasure t ward Congress for its passage of th in Alien and Sedition Acts The perplexing question of the prope authority to pass on problems of con stitutionality had not yet been re solved in favor of the courts. Interest inglvsenough, the sister states who re plied to the Virginia and Kentuck resolutions expressed unqualified dis approval, arguing that “the Supre Court of the United States, ultimately has the authority of deciding on th constitutionality of any act or law o the Congress of the United States.” We also discovered that the Rhod Island Legislature took strong excep es tion to the actions of Virginia and Kentucky, arguing that for state legis latures to assume the authority of de termining the legality of Congres sional acts would be “Hazarding an in terruption of the peace of the stat by civil discord, … each state having in that case, no resort … but the strength of its own arms.” “Even at this early date ‘they realized that such action by the states endangered the nation as a whole,” I said. “What good did these resolutions do ?” he asked. “No good at all. The Alien and Sedition Acts died under their ow terms in 1801.” TEXAS AT LARGE There has been some discussion about Rep. Maury Maverick, Jr., run, ning for lieutenant governor. Talking points of his advocates are his liberalism, his name, and his sponsorship of the House passed lobbyist registration law that was killed in the Texas Senate in 1955. … The Democratic Advisory Council has sent out a handbook on how to win precinct conventions in 1956. Biggest type is at the end of the pamphlet, where it says : “On to Chicago … with SAM RAYBURN and other Genuine Democrats.” … Hall Timanus, chairman of the conservative Young Democratic Clubs of Texas, has setup offices in the same buildingwith George Sandlin, chairman of the State Democratic Executive Committee. He is soliciting memberships. … The Austin American dropped Drew Pearson’s column on orders from upstairs. Pearson is frequently hard on Sen. Johnson and Speaker Rayburn. In a column he wrote after the American dropped him, for example, he said Rayburn has made sure nobody gets on the House Ways and Means Committee who might vote against the 27.5 percent oil depletion allowance and tax write-off benefits. THE TEXAS OBSERVER MARCH 7, 1956 PAGE 3 James E. Titus THEN I pointed out that as time went on the Supreme Court began exercising the power given to it by the “federal supremacy clause,” Article VI of the Constitution: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof ; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land ; and the Judges of every _State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” “That’s clear,” he said. “All national laws are superior to state laws.” “That’s right,” I replied, “but national-state relations are never static, and through our history men have often argued the question. For example: Does the National Constitution derive its authority from the states or from the people ?” He asked about the Civil War. I reminded him that long before that conflict, the doctrine was firmly established that the Constitution came from the people and that the states and their governments were only agents in the process. Justice Story said in 1816: “The Constitution of the United States was ordained, but emphatically, as the preamble of the Constitution declares, by ‘the…people of the United States’.” Three years later, Chief Justice Marshall dealt with the same problem. One of the counsels before the court argued that the constitution was created by an act of the sovereign states. “It would be difficult,” said Marshall, “to sustain this proposition.” He admitted that the delegates to the Philadelphia convention were picked by the state legislatures, but the members of this convention, the then existing Congress, and the state legislatures passed the Constitution, which was then, in Marshall’s language, “a mere proposal,” on to e the people for decision. The people of the United States then acted upon it, said Marshall,. “in the only manner in ‘which they can act safely, effectively, and wisely, on such a subject, by assembling in convention. It is true, they assembled in their several states, and where else should they have assembled ?” Marshall concludes that it was from these people’s conventions that the “constitution derives its whole authority.” “Well, then,” said my friend looking through a brief prepared by the Attorney General of Texas on interposition, “John B e n Shepperd is wrong.” “How do you mean?”. I asked. “He says on page two of his brief that this is a ‘Union of States’ when actually it is a Union of the People.” He also pointed out that the Attorney General’s brief stated that “the powers of the Federal Government result solely from the compact of which the states are parties.” I replied that such reasoning and such arguments had never been accepted legal doctrine in the United States. In 1869, Justice Chase re-enforced what had been established by force of arms four years before when he wrote : “The Constitution, in all its provisions,’ looks to an indestructible Union, composed of indestructible States.” of the matter. I would like to take a Texanic peek atit. I see no difference in being for a bill that would benefit producers of natural gas than being for a bill that would benefit producers of cotton or corn or hogs or wheat. We would be inclined to take the hide off a Texas legislator who opposed measurers designed to benefit the farmers of It is difficult for me to find a socalled “liberal” position regarding the late lamented gas bill. I heard Fulton Lewis while he considered it the “top of the news” to rail against the passage of the bill. I watched Sen. James Murray work for its passage. I heard Lyndon Johnson remind Hubert Humphrey that if Minnesota transported butter via pipelines, Humphrey, too, would support the bill. Economically, natural gas occupies a position in Texas similar to butter and milk in Minnesota. I remember well that liberals did not fall out with Sen. Humphrey when he fought the removal of the “oleo tax.” Of course, some time back a few Texas congressmen were for theoleo tax until some lobbyist told them that it was made from cotton seed oil According to the Texas Almanac, the most objective of the Dallas News publications, public school funds in our state benefit to the tune of some $50 million annually from taxes on natural gas. Not near enough, to be sure, but worth keeping. The “consumer” conscious Lone Star Gas Company didn’t like the bill either. W. O. COOPER Dallas WELL,” he said, “then arguments based upon the sovereignty of the states don’t mean much do they ?” “In this day and age, considering our tinity in the two world wars and our international position, what you say is very true. And Mr. Shepperd is on mighty thin ice when he says in his letter to the Legislature that ‘A state or group of States, may defy a ruling’ of the Supreme Court.’ He looked up from his reading to remark: “But in Shepperd’s letter to says that ‘interposition is not defiance.’ How do you account for this difference in language ?” “Anyone is likely to become somewhat inconsistent when dealing with such a meaningless concept as interposition,” I replied. “Isn’t interposition just a new word for nullification?” he asked. “In a very real sense,” I replied, “it is. But even Mr. Shepperd knows ifs too late to argue seriously about nullification. This is a doctrine in which the state openly refuses to enforce, federal law within its boundaries.As Andrew Jackson indicated in his Proclamation to the People of South Carolina in 1832, once a nullification proceeding has taken place there is no recourse except to armed force. And this, said Jackson, is treason.” “But if it is true, as Mr. Shepperd tells Representative Wilson., that ‘interposition . is . not nullification,’ what, for heaven’s sake, is it ?” “Let’s look at this thing carefully,” I said. “One point of present disagreement is the decision of the Supreme Court in Brown v Board of Education of Topeka which stated that ‘separate educational facilities are inherently unequal.’ Another discontent, and the one to which Mr. Shepperd has directed his interposition brief, is President Eisenhower’s veto of the HarrisFulbright Natural Gas bill. ce f 1of d. I 4e d 1s d o e e O y e o e r y m e e f e Pussy-Fooling To the Editor : . . . .Gentlemen, niay I inq-uire why you have not seen fit to castigate the disgraceful pussy-footing of the segregation issue by our so-called “liberal” office seekers ? Their monumental lack of courage is discouraging to voters like me who think, like it or not, that the law is the law. In this instance, however, it is not merely the law as declared by the highest court of the land, but also the law of humanity and common sense. Where are the uncompromising liberals of this state? BEN G. LEVY 1003 State National Bldg. Houston \(See editorial, “The Ungolden SiSnapping Out To the Editor : I would like to take this opportunity to express the gra -titude of. many people for the excellent job in which the Observer is giving the people of Texas the true facts of our corrupt state administration. I believe the Observer will get the credit for snapping many people out from under the spell of Shiverism B. R. WALKER Silsbee Hard to Find To the Editor: .I would like to inject a provincial viewpoint into the discussion of the gas bill and its veto. The Observer has taken a broad “national type” view “You wi+l note that this is the first instance in our history where such arguments as this have been directed toward the Court and the President instead of at Congress. There is no reason for us to suppose that a subterfuge such as interposition will have any effect on the president’s cftstitutional power to veto acts of Congress or on the court’s power to make decisions under the federal supremacy clause.” “But Congress can be petitioned, can’t it ?” “t>f course,” I. replied. “But if the state legislature wants to petition Congress to call a convention to revise the Constitution, it should frame the document honestly as a petition to Congress.and not as an ‘Interposition Resolution’.” “This whole thing then,” he said with narrow eyes, “looks like a publicity stunt.” “In a way,” I returned, “it is a hoax. Since such a resolution has no standing in law, since it is not addressed to Congress to summon a constitutional convention, and since it is designed to express displeasure about Eisenhower’s use of his veto power, I believe you can honestly say that it is a device to gain publicity.” “But what makes me mad,” said my narrow-eyed friend, “is that it tends to mislead and confuse the people of Texas. Interposition is just a highsounding word that doesn’t mean anything.”