The Principle of Interposition: A Lesser Magistrate’s Duty to Stand between a Tyrannical Higher Magistrate and the People


In recent months many people have been asking me about “interposition.” What is interposition? Is it constitutional? Is it moral? What does the Christian tradition say about interposition?

The fact that people keep raising such questions testifies to the concerns prevalent in our contemporary political climate. Following is an introductory reply—not a final, polished solution, but just something to keep the conversation going with the hope that we all may come to a clearer understanding of the principles of liberty, justice, and civic responsibility before, well, before it is too late.

Too late? Each generation has its own urgency. Speaking in 1961 to the Phoenix Chamber of Commerce, Ronald Reagan, a future American president, expressed it this way:

Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.

How, then, is freedom to be “fought for, protected, and handed on”? Years ago I advised citizens to vote, or to write letters to the editor, or to campaign for a candidate, or perhaps even to run for office themselves. There also is another way, incumbent upon those who already hold office. It is called “interposition,” a concept which can at least provisionally be defined by working through the following seven theses.

1. People have an obligation to honor and obey their civil government, for civil government is a good gift from God Himself.

In Romans 13:1–8, St. Paul wrote:

Let every soul be subject to the governing authorities. For there is no authority except from God, and the authorities that exist are appointed by God. Therefore whoever resists the authority resists the ordinance of God, and those who resist will bring judgment on themselves. For rulers are not a terror to good works, but to evil. Do you want to be unafraid of the authority? Do what is good, and you will have praise from the same. For he is God’s minister to you for good. But if you do evil, be afraid; for he does not bear the sword in vain; for he is God’s minister, an avenger to execute wrath on him who practices evil. Therefore you must be subject, not only because of wrath but also for conscience’ sake. For because of this you also pay taxes, for they are God’s ministers attending continually to this very thing. Render therefore to all their due: taxes to whom taxes are due, customs to whom customs, fear to whom fear, honor to whom honor.

Similarly, St. Peter wrote, in 1 Peter 2:13–17:

Therefore submit yourselves to every ordinance of man for the Lord’s sake, whether to the king as supreme, or to governors, as to those who are sent by him for the punishment of evildoers and for the praise of those who do good. For this is the will of God, that by doing good you may put to silence the ignorance of foolish men—as free, yet not using liberty as a cloak for vice, but as bondservants of God. Honor all people. Love the brotherhood. Fear God. Honor the king.

In both passages, the general message is that God has established human civil governments for the purposes of protecting the innocent and punishing the guilty and, therefore, people should honor and obey their government.

2. Civil government consists of more than one office and more than one officer, with the duties of each one being defined by a constitution.

Perhaps one could argue that in an absolute dictatorship, there is only one office and one officer, but even when a dictator claims absolute power, there still are local magistrates charged with carrying out the dictator’s orders. In less centralized systems of government, the existence of multiple offices and multiple office holders is even more obvious. In our own American system, we see a town mayor, a state legislature, a state governor, the federal Congress, the President, and so on.

The relationship among these various “magistrates” is defined by a constitution. Some constitutions, such as the U.S. Constitution, are written. (Whether or not they are read is, of course, a different question. …) Other constitutions, such as the British Constitution, are not so much a written document but rather a lived tradition. In Britain, the writings of Coke, Locke, and Blackstone, to name a few, serve as close proxies to a written constitution, while the Magna Carta of 1215 and the English Bill of Rights of 1689, to give two other examples, bear testimony to the unwritten common law that “constitutes” the British government, hence, these documents collectively identify Britain’s constitutional principles.

Constitutions are not a product of the modern era. Even in Old Testament times, kings served as constitutional monarchs. Moses outlined a constitutional monarchy in Deuteronomy 17:14–20, indicating specific responsibilities of the king. The Prophet Samuel warned the people that in demanding a king, they were asking for a ruler with greater power over their persons and their property than the status quo, a government by judges (1 Samuel 8:10–18). The people nonetheless replied that they wanted to place the power of both domestic justice and foreign war into the office of a king (vv. 19–20). Saul became that first king, anointed by the Prophet Samuel and ratified by a popular assembly (1 Samuel 10). Thus, Israel’s constitutional monarchy began, with subsequent officeholders also receiving popular ratification (1 Samuel 10; 2 Samuel 16; 1 Kings 1; 2 Kings 11; 2 Chronicles 23).

All of these constitutions—ancient or modern, written or unwritten—serve a common function: they identify the duties and powers of various officeholders in their fiduciary relationship to the common good of the people. Each government, then, has multiple offices and multiple officeholders, with distinct duties applicable to each office. Likewise, each citizen has a responsibility to understand the constitution of his land in order to recognize to which office particular obligations should be rendered: “Render therefore to all their due: taxes to whom taxes are due, customs to whom customs, fear to whom fear, honor to whom honor” (Romans 13:8).

3. People have a duty to disobey any civil ordinance that commands them to violate God’s moral law.

Although God has established civil governments and given them authority to require obedience of their people (#1), that authority is not absolute. The Hebrew midwives disobeyed Pharaoh’s order to kill all the male children of Israel: “the midwives feared God, and did not do as the king of Egypt commanded them, but saved the male children alive” (Exodus 1:17). The Prophet Daniel nobly practiced civil disobedience when he persisted in praying to the one true God rather than obeying the decree of Darius the Mede to pray only to the king himself (Daniel 6). A generation earlier, under the Babylonian ruler Nebuchadnezzar, Daniel’s three friends—Shadrach, Meshach, and Abed-Nego—similarly exercised civil disobedience when refusing to bow down to a golden idol. In the New Testament, Peter expressed the basic principle behind all of these examples: “We ought to obey God rather than men” (Acts 5:29). The Epistle to the Hebrews affirmed that the Hebrew midwives’ civil disobedience was borne of faithfulness to God: “By faith Moses, when he was born, was hidden three months by his parents … they were not afraid of the king’s command” (Hebrews 11:23).

Civil disobedience is not the same as interposition, but understanding civil disobedience aids in understanding interposition. In the case of civil disobedience, a citizen disobeys an edict of the civil government in order to avoid disobeying God’s moral law; in the the case of interposition, a lesser magistrate interferes with the edict of a greater magistrate in order to avoid disobeying God’s moral law.

4. The principle of interposition is derived from the fact that all magistrates are required under God’s moral law to uphold their own constitution as the established government (Romans 13 and 1 Peter 2), unless that constitution requires disobedience to God (Acts 5).

This principle resonates also with the long-established concept known as the “rule of law,” namely, that people are governed by laws not by men—by the office, not simply by the officeholder. Although the rule of law has arguably reached its fullest expression in the Anglo-Saxon tradition that informed the establishment of the American Republic, it can be found in many other contexts, ancient and even pagan. In the Persian Empire, for example, the monarch did not exercise unlimited, arbitrary power, but rather was constrained by the law. Persian law was permanent to the point that once enacted, it could not be repealed, not even by the same monarch who initially had promulgated the law (Daniel 6:8,12,15; Esther 1:19).

Of course, Persia’s extreme version of the “rule of law” had problems all its own, which is why the U.S. Constitution affords Congress the authority to repeal its earlier acts; moreover, the Supreme Court has claimed the authority to declare null and void any act that is “repugnant to the Constitution,” Marbury v. Madison, 5 U.S. 137, 180 (1803). Although the American system offers far more flexibility than the Persian system, both approaches emphasize a subordination of the officer to the office, the ruler to the rule, the man to the law. To summarize with two Latin words: lex rex, namely, “the law is king” (and not the other way around).

In the United States, all officers, at both the federal and state levels, take an oath to uphold the U.S. Constitution. Furthermore, all persons have a duty to obey God rather than man. And God requires, in Romans 13, that the established government, in this case, the government defined by the U.S. Constitution, must be honored and obeyed, unless that government establishment would require one to disobey Him. Therefore, it follows that any lesser magistrate, being a person who has taken a constitutional oath of office, not only may but must interpose whenever a higher magistrate both (A) violates the constitution or otherwise commands something contrary to divine moral law; and, (B) also refuses to correct the situation when petitioned to do so. If the higher magistrate refuses to correct the situation, then the lower magistrate must correct it, or else both are equally guilty of dishonoring their offices and hence of dishonoring God, who has established their office under Romans 13.

5. Interposition is not rebellion, but patriotism, and it is done lawfully, that is, openly and within the means provided by the operative constitution.

Interposition need not be violent. The Glorious Revolution of 1688 involved a complete regime change without bloodshed. King James II had proved himself a tyrant by compromising land titles in both England and the American colonies, by prohibiting town meetings, by dissolving the colonial charters and conglomerating several colonies into the Dominion of New England, by appointing Andre Andros as governor of New England without allowing for any representation of the local people, and by taking steps to force Catholicism on the Protestant people of England. All of this ran afoul of the English constitution. When negotiations with James II failed to bear fruit, Parliament interposed itself between the Crown and the people, inviting William and Mary to take the throne and driving James out of the country. In New England, the American colonists had a parallel Glorious Revolution all their own, ousting Andros and shipping him back to England for trial. Note that last point well. As much as they despised Andros, they did not deny him due process. The Glorious Revolution perhaps should not be called a “revolution” at all, for it proceeded constitutionally—or at least far more constitutionally than, say, the French Revolution. The Glorious “Interposition” of 1688, if we may rename it, led to the English Bill of Rights of 1689, in which Parliament and the new King, William, identified their shared understanding of Parliament’s rights and the Crown’s duties and, importantly, the limitations of royal power.

Interposition does not have to bring about a change of rulers, or the adoption of additional constitutional texts, as did the Glorious Revolution. Interposition can be as simple as one lesser magistrate refusing to enforce the edict of a higher magistrate because that edict violates the constitution. For example, Frederick the Wise, Elector of Saxony, interposed to protect Martin Luther after his life was endangered by the Edict of Worms in 1521. That edict, adopted by the romp diet remaining after the Diet of Worms dissolved, declared Luther an outlaw to the Holy Roman Empire. Other local princes in Germany also concurred that this imperial ban against Luther lacked constitutional validity; therefore, they refused to enforce it and instead interposed for the protection of Luther and his followers.

Interposition does not violate the constitutional order, but rather preserves and protects it, and in fact is mandated by both the constitution and those laws passed pursuant to it. The U.S. Constitution, for example, requires both federal and state office holders to take an oath to support that constitution. As a more specific example, the Oath of Enlistment for Cadets at the the United States Military Academy, as prescribed by Congress (10 U.S. Code 4346), reads as follows:

I, _____, do solemnly swear that I will support the Constitution of the United States, and bear true allegiance to the National Government; that I will maintain and defend the sovereignty of the United States, paramount to any and all allegiance, sovereignty, or fealty I may owe to any State or country whatsoever; and that I will at all times obey the legal orders of my superior officers, and the Uniform Code of Military Justice.

Notice that an Army Cadet does not vow to obey all orders whatsoever that a superior officer may issue, but rather to support the U.S. Constitution and to obey “the legal orders,” or, as cadets are trained to reply upon questioning, “Lawful orders only, sir!” The U.S. Constitution asserts, in Art. VI, para. 2, that the Constitution itself is the “supreme Law of the Land,” with treaties and federal laws, state constitutions, and state laws each taking a subordinate place in the hierarchy of law. Therefore, the Oath of Enlistment requires obedience to the U.S. Constitution first, and obedience to lower-level law only when it conforms to the U.S. Constitution. Notice, also, the reference in the Oath of Enlistment to the Uniform Code of Military Justice, which includes procedures ensuring due process. Every soldier has a duty to uphold these standards, regardless of any order by a superior officer to the contrary.

Since Romans 13 and 1 Peter 2 (as discussed earlier) indicate that the divine moral law requires obedience to the established government, and since the U.S. Constitution is the established government, it follows that the Oath of Enlistment, like the similar oaths taken by elected and appointed political officeholders, involves not merely a civic duty but also a moral duty to obey the Constitution above any order to the contrary that a superior officer may issue. Hence, we may conclude that interposition is a moral, lawful, and constitution duty; interposition is patriotic, not revolutionary.

6. Some situations may be unclear, leaving room for much debate as to how the principles mentioned earlier ought to be applied.

There may be ambiguity or other confusion regarding what a nation’s constitution requires. The brief account of the Glorious Revolution given above perhaps was too one-sided. People of good faith may raise questions as to patience or prudence with respect to awaiting a suitable reply for a petition for redress of grievances. Should Parliament have negotiated longer with James II? Or had the king already proven himself an incorrigible tyrant, worthy only of being deposed?

A century after the Glorious Revolution, another constitutional debate broke out in the British Empire, in part historical and in part political. As for history, some American colonists in the years preceding 1776 interpreted the Glorious Revolution as a solidification of the long-standing Anglo-Saxon principle of representative government; in other words, the chief fault of James II was that he refused to have his power balanced by an elected assembly. Politically applied, this version of history meant that George III now was committing the same error, refusing to have his power balanced by the local colonial assemblies. On the other hand, leaders in England had drawn a different history lesson from the Glorious Revolution: it was not so much the power of local assemblies, but the power of Parliament that had been vindicated in 1688. Therefore, during the colonial crisis of 1765–1776, Parliament must again assert its supremacy—this time over the colonial assemblies. Whose version of history, and whose political theory, was correct? What exactly was the “British constitution” in this case?

Although the United States has a written constitution, ambiguities persist there, too. During the American Civil Rights Movement, questions abounded as to the meaning of the Fourteenth Amendment. Does “equal protection of the laws” include an equal right to educational opportunities? If so, does racial segregation inherently prevent that right from being realized? If so, then the federal government has the constitutional authority to order all schools to be racially integrated. If not, then even if racial segregation is otherwise unfair or unwise, the federal government should leave the matter for the states to resolve on their own.

In ambiguous instances such as these, a judgment call must be made, and each officer—each “lesser magistrate”—is entitled to make such a judgment, provided also that this officer willingly submit to the constitutional framework for due process if others accuses him of judging wrongly.

7. As a result of the ambiguities surrounding the application of the principles of interposition (#6), Christians may at times disagree over such matters in good conscience.

For example, some Christians disagreed with others at the time of the American Revolution, and at least in theory each side could have done so in good conscience. Until 1765, the colonial assemblies had been operating more or less in harmony with the Crown and Parliament, with all of them functioning under a shared British constitution. Romans 13 meant honoring one’s local colonial government and honoring the Crown and Parliament simultaneously. Starting in 1765, however, a series of disagreements over how to interpret the British constitution—in particular, concerning where to draw the line between the authority of the local colonial governments and Parliament—resulted in a growing rift between these levels of government. Joining their efforts in the Continental Congress, the colonial assemblies petitioned Parliament and the Crown for a redress of grievances and also took steps to ensure the safety of their people’s lives and property. In other words, Congress interposed itself between the colonists and the imperial government to protect their constitutional rights as English subjects.

When the imperial government refused to consider the pleas of Congress, but instead dissolved the people’s local governments, the colonists no longer could remain loyal to both the empire and the colonial assemblies. It was not a question of whether to obey the moral law of Romans 13, but rather of whether to obey the Crown and disobey one’s colonial assembly, or whether to obey the local assembly and disobey the Crown. Individuals had to choose loyalty to one over loyalty to the other, as we see tragically in the split between Benjamin Franklin (patriot) and his son William (loyalist). The most honorable way to decide was to inquire which of the two competing governments upheld the constitution more faithfully, but unfortunately even well-intended persons could interpret that constitution differently. Hence, the Revolution no longer could be prevented.

As noted earlier, the American Civil Rights Movement provides additional examples of how unclear the “correct” application of interposition can be. Part of the debate dealt with racial segregation: is it ever moral? could it be justified as a measure for public safety? Part of the debate was constitutional: what role should the federal and state governments each assume? At Central High in Little Rock, Arkansas, in 1957, Governor Orval Faubus interposed between a federal court order for school integration and his people. At least, that is one way of telling the story. On the other hand, what Faubus also did was to block the integration plan developed by the local school board. Arguably, then, the school board was also practicing interposition—in this case, protecting the rights of the local black students from the governor. So who was the real hero? The lessons here are many, one of them being that interposition is not so easy to navigate, another being that interposition may occur simultaneously with, and intertwined with, other political strategies; two parties in a multi-leveled government might even be interposing against each other!

The fact that some historical examples have muddied the waters should not, however, dissuade anyone from seeking greater clarity. Anyone taking one of the oaths mentioned earlier should, in fact, feel duty-bound, first, to understand that oath and, second, to fulfill it loyally. To utter the oath in ignorance or deception commits a far graver betrayal of one’s civic duty than to practice interposition imperfectly. Let no one, therefore, reject the principle of interposition solely because its applications are sometimes unclear or its supposed practitioners are sometimes dishonorable. More often than not, genuine heroes may be found on the pages of history that record instances of interposition.

Let’s learn from those heroes and live from those heroes, or else ignore them—and?—“and spend our sunset years telling our children and our children’s children what it was once like in the United States where men were free.”

 

Dr. Ryan C. MacPherson is the founding president of Into Your Hands LLC and the author of several books, including Rediscovering the American Republic (2 vols.) and Debating Evolution before Darwinism. He lives with his wife Marie and their homeschooled children in Mankato, Minnesota, where he teaches American history, history of science, and bioethics at Bethany Lutheran College. He also serves as President of the Hausvater Project, which mentors Christian parents. For more information, visit www.ryancmacpherson.com.

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TAGS: Christianity, Liberty, Interposition, Rule of Law

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