Submitted by: Veronica Coffin
By: Brent Parrish
“In this country, the federal government can do pretty much whatever it wants to.”
—Rep. Pete Stark (D-Calif.)
“Congress has not unlimited powers … but only those specifically enumerated.”
“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.”
—Tenth Amendment, U.S. Constitution
“All laws which are repugnant to the Constitution are null and void.”
—Marbury v. Madison (1803)
So just what is nullification? It is the idea that a State or States have the right to nullify, or refuse to enforce, any federal law that is clearly unconstitutional. This is not some new and novel “legal theory.” It is the method recommended by the Framers to use when the federal government usurps power.
Naturally, nullification is quite controversial and utterly repugnant to those who champion big government and the centralization of ever more power in Washington, D.C.
A quick Google search brings up this WikiPedia definition for Nullification:
Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory of nullification has never been legally upheld by federal courts.
After reading WikiPedia’s take on nullification, I’m reminded of a quote by Thomas Jefferson: “The Constitution is a mere thing of wax in the hands of the judiciary which they may shape and twist into any form they please.”
It was Thomas Jefferson who wrote (emphasis added), “That a nullification, by those sovereignties [States] of all unauthorized acts done under the color of that instrument [the Constitution] is the rightful remedy.” Thomas Jefferson introduced the term “nullification” in the Kentucky Resolutions of 1798. James Madison wrote in the Virginia Resolutions of 1798 that the States are “duty bound to resist” when the federal government violates the Constitution.
Thomas E. Woods, Jr., author of the book Nullification, elaborates:
But Jefferson didn’t invent the idea. Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Patrick Henry and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.
As Jefferson warned, if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones. If the federal government has the exclusive right to judge the extent of its own powers, it will continue to grow – regardless of elections, the separation of powers, and other much-touted limits on government power. In his Report of 1800, Madison reminded Virginians and Americans at large that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.
A mere 10 years following the ratification of the U.S. Constitution, the second president of the United States, John Adams, signed into the law the Alien and Sedition Acts. The Sedition Act made it a punishable crime to criticize the government or its officials. People were actually put in prison for merely being critical of the president or Congress—including Matthew Lyon, a Vermont congressman who had fought for independence during the Revolutionary War! Is this not a grossly unconstitutional act that violates the very letter of the “free speech” clause in the First Amendment? You be the judge. The onerous Sedition Act is what prompted the Kentucky and Virginia Resolutions of 1798, also known as the “Principles of 98.”
The most common rebuttal by those who oppose the use of nullification is to cite the “supremacy clause” from the U.S. Constitution (Article VI, clause 2). A good illustration of this argument can be found in a 2011 article that appeared at TalkingPointsMemo.com.
The concept of states’ rights mostly clings to one interpretation of the Tenth Amendment, which says that “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.” Tenthers would say this means a state doesn’t have to follow federal laws the state believes exceed the federal government’s constitutional authority.
But this pretty clearly goes against the Supremacy Clause of the Constitution, in Article 6:
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 in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.
What is being implied by the above excerpt from the TPM article is a sentiment that has been echoed by others opposed to the idea of nullification—namely, that we cannot have the States picking and choosing which laws they want to obey or it would lead to anarchy. (Of course, unless it is liberals doing the nullifying … like nullifying federal marijuana prohibition statutes.) Actually, there is a lot of truth in that line of thinking. But it ignores a very important point that is clearly spelled out in the “supremacy clause.”
So, let’s just take a closer look at just what the “supremacy clause” says (emphasis added):
This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land …
The key point in the “supremacy clause” that is consistently ignored by those who favor giving the federal government ever more power over the States is the phrase “in pursuance thereof .” What does “in pursuance thereof” mean? It means “the carrying out of a plan or action” (pursuance) “of the thing just mentioned” (thereof).
What was just mentioned?
I would agree, that if the States decided to simply pick and choose which federal laws they would like to enforce, regardless if those laws were constitutional, then we would have a big problem. But the “supremacy clause” plainly states the “supreme law of the land” are those laws that closely follow (i.e. pursue) the Constitution.
For example, another argument commonly employed against nullification is what has been referred to as the “Nullification Crisis of 1832.” South Carolina wanted to nullify the Tariff Act of 1828. But the Tariff Act was constitutional according to Article I, Section 8, clause 1 of the U.S. Constitution, which states (emphasis added):
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States …
Congress has the power to impose tariffs on imports. But South Carolina wanted to nullify a constitutional law. In James Madison’s Notes on Nullification (1834), he discussed South Carolina’s theory that a State has a “constitutional right” to nullify any federal law, and the nullification is presumed valid, unless three-fourths of the States say it is not valid. Madison countered South Carolina’s bizarre theory by stating the federal government has delegated authority to impose tariffs. The Constitution requires tariffs be uniform throughout the United States. States cannot nullify tariffs authorized by the Constitution. One-fourth of the States do not have the right to dictate to three-fourths of the States on matters delegated to the federal government; and nullification is not a constitutional right. James Madison then invoked Jefferson, “[B]ut, when powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every state has a natural right in cases not within the compact ( casus non fæderis,) to nullify.” 
One of the more despicable charges often leveled by some who staunchly oppose nullification is that it is really just a “smokescreen for slavery.”
Thomas E. Woods, Jr. responds:
Nullification was never used on behalf of slavery. As I show in Nullification, it was used against slavery, which is why South Carolina’s secession document cites it as a grievance justifying southern secession, and Jefferson Davis denounced it in his farewell address to the Senate. Thus Wisconsin’s Supreme Court, backed up by the state legislature, declared the Fugitive Slave Act of 1850 unconstitutional (the mere existence of the fugitive-slave clause in the Constitution did not, in its view, suffice to make all the odious provisions of that act constitutionally legitimate). In Ableman v. Booth (1859), the Supreme Court scolded it for doing so. In other words, modern anti-nullification jurisprudence has its roots in the Supreme Court’s declarations in support of the Fugitive Slave Act. Who’s defending slavery here?
Historically speaking, nullification has been used to fight for free speech, free trade, unconstitutional searches and seizures, against military conscription, against the fugitive slave laws, etc. As Thomas Woods rightly points out, “The most lethal institution in history for minorities has been the centralized, modern government.”
Nullification is not sedition, lawlessness, rebellion, secession, treason, or even civil disobedience; it’s about upholding the Constitution; it puts power back in the States.
- Publius Huldah (Feb 16, 2015). The Dangers of an Article V Convention of States. Retrieved on April 22, 2015.