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Tenth Amendment Part I: Interposition

By Ann Miller
Baltimore County Republican Examiner
Checks and Balances
Our nation’s founders worked a web of protections into the fabric of our government designed to protect the citizens against the government’s natural tendency to become tyrannical.  Within the network of checks and balances, which provide protections not only between branches of the federal government but between levels of government (federal, state, and local) as well, are several legal devices for the use of the citizenry when all else has failed.  That is, when our elected officials (regardless of which branch of government they serve) are no longer representing the people, what recourse do the citizens have?

The Tenth Amendment provides the constitutional basis for state and local level protections against the federal government, and on the local and individual level against the state and county government.  The Tenth Amendment reads: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Enter Interposition, Nullification and Civil Disobedience.  This article will address Interposition.

Interposition defined
Interposition, according to Constitutional author Felix Morley via the Tenth Amendment Center, is “an official action on the part of a State Government to question the constitutionality of a policy established by the central government. The action at least temporarily interposes the sovereignty of the State between its citizens and the distant authority of Washington. Customarily there is some sort of formal declaration to the effect that the objectionable national policy will be opposed until or unless the moot issue of its constitutionality is satisfactorily resolved.”

In the simpler words of this writer, interposition is a resolution which halts enforcement of a constitutionally questionable law until the constitutionality can be settled.  It can also be exercised after the constitutionality is determined in the case of a government entity ignoring the decision.

Duty to uphold their oath
Any public servant, whether elected or appointed, who takes an oath to uphold the Constitution has a right and duty to exercise interposition when the Constitutional rights of the citizens in his jurisdiction are being violated by the government, even if passed by law (referred to in the Declaration of Independence as “pretended legislation”) and upheld by the courts.  Despite common belief, the Supreme Court is really not the highest authority on Constitutionality of laws.  Which begs the question: who is?

To answer this question, I interview constitution experts Michael Peroutka and Derek Howell of the Institute on the Constitution.  Mr. Peroutka is the Co-Founder of the IOTC and was the presidential nominee of the Constitution Party in 2004.  Additionally, he is a Maryland resident who grew up in Baltimore County.  According to Mr. Peroutka, the final authority is the constitution itself.  He said, “Everyone who takes an oath to it are bound not to their superior or a judge, but to the constitution itself.  The constitution is over the court, the court is not over the constitution.  The court applies it to cases that come before the court and renders an opinion, not a law, but an opinion based on the constitution and particular to that case in controversy.”

Hope lies on the county level
However, Maryland being Maryland, interposition here is unlikely to be exercised by state legislators when the state and federal governments are headed by leftists. Our only hope lies on the county level, where 16 of 24 jurisdictions hold a Republican majority, with several other conservative Democrat counties on the eastern shore and elsewhere.  On a county level, Maryland is a conservative state.  Mr. Peroutka added, “The lesser magistrate is not supposed to be the agent of the higher magistrate.  He is supposed to turn around and face the tyranny on our behalf.  That’s why the county government is so important.”

Sheriff interposition
One possibility for interposition in Maryland exists as an action taken by a local sheriff against unconstitutional acts of the state or federal government.

Few recognize the power and importance of the position of county sheriff.  Unlike the police chief, who is appointed by the county executive and is therefore a municipal employee with obligations to government officials, the county sheriff is elected by the voters of the county. 

Although the Baltimore County Police Department website states the duties of the department as including “protecting the rights of all citizens”, it is the sheriff who truly represents the rights of the people.  His job description goes beyond issuing traffic citations and court subpoenas.  The duties of the sheriff include the authority to represent the sovereignty of the State over the federal government.

Sheriff Lewis of Wicomico County, the President of the Maryland Sheriffs Association, said, “Regardless of political affiliation, the office of sheriff is a non-partisan position and we represent everyone.  It just so happens that the overwhelming majority of my constituents views reflect my own in terms of our Second Amendment right to bear arms and our Fourth Amendment right against unlawful searches and seizures, and that includes encroachment or infringement by the federal government or the state government.”

If only ALL of Maryland’s sheriff’s took their oath to uphold the constitution as sacred as Sheriff Lewis.  But more on that later in the series.

Watch for Part II: Nullification, coming soon.

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