In my previous post, “State Sovereignty Basics,” I summarized some of the historical evidence in support of the idea of State Sovereignty. (Strictly speaking, only the People are sovereign, but we say that the states have sovereignty in the areas over which the People delegated power to them).
In the previous post, I alluded to the fact that this conception of the Union could hold the key to reigning in the federal government. Specifically, I was referring to the doctrine of State Nullification, which I will describe in this post.
My definition of nullification is a broad one: any action that prevents or hinders enforcement of a legislative act of a higher authority. When I say a “higher authority” I mean this in an equivocal sense. The People are the highest authority, the only true sovereigns. But legally, it is understood that state laws have force over individuals, and federal laws are supreme over state laws. So when I refer to state nullification, I mean state action that prevents or hinders the enforcement of federal acts.
Some may balk at the notion that a state can obstruct a federal act (federal law is supreme!). Firstly, it must be noted that nullification need not be outright resistance to federal law. A state can engage in non-cooperation, refusing to comply with a federal law without actively obstructing it. This is based on the “Anti-Commandeering Doctrine” – the principle that the federal government cannot force the states to enact a federal program or enforce a federal statute. This doctrine is solidly grounded, even backed by the Supreme Court, as described in this report by Mike Maharrey at the Tenth Amendment Center.
But states can engage in outright obstruction of some federal acts. Only a constitutional federal act is supreme over state laws. Any sober reading of the “Supremacy Clause” (Article VI, clause 2 of the Constitution) makes this clear. As Hamilton explains in Federalist #33:
If a number of political societies enter into a larger political society [e.g. the states forming the federal government], the laws which the latter may enact, pursuant to the powers intrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed… But it will not follow from this doctrine that acts of the large society which are NOT PURSUANT to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. [Emphasis Added].
Hamilton’s reasoning is in alignment with the understanding that the States, with the consent of the People, delegated specific powers to the federal government. If an act is outside the bounds of these delegated powers (i.e., is unconstitutional), it is not law, and the states are under no obligation to comply.
In fact, they are obligated to resist.
This is what Jefferson and Madison argued in 1798 after the federal government under the Adams administration had passed a series of acts called the Alien and Sedition Acts. In response, Jefferson penned what was later enacted by the Kentucky legislature as The Kentucky Resolutions of 1798. Similarly, Madison authored his own response, which was adopted by the Virginia legislature and became known as the Virginia Resolutions of 1798.
[T]his commonwealth is determined, as it doubts not its co-States are, to submit to undelegated, and consequently unlimited powers in no man, or body of men on earth: that in cases of an abuse of the delegated powers, the members of the general government, being chosen by the people, a change by the people would be the constitutional remedy; but, where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy [Thomas Jefferson in The Kentucky Resolutions of 1798. Emphasis added].
[I]n case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact [the Constitution], the states who are the parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them. [James Madison in the Virginia Resolutions of 1798. Emphasis added]
But who decides what is Constitutional?
Jefferson and Madison rejected the idea that the Supreme Court is the exclusive judge of constitutionality.
Here’s Jefferson in the Kentucky Resolutions of 1798:
[T]hat the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party [i.e. state] has an equal right to judge for itself, as well of infractions as of the mode and measure of redress. [Emphasis Added].
The judicial branch is also a part of the federal government; it is absurd to think it could be the ultimate judge the limits of its own powers. Madison echoes Jefferson’s argument in his Virginia Report of 1800 (adopted by Virginia as a follow-up to the Resolutions of 1798):
The [Virginia] resolution [of 1798] supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department, also, may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution [the states], to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority as well as by another–by the judiciary as well as by the executive, or the legislature. [Emphasis Added].
I hope this introduction to nullification was useful. I plan to write more on this topic, including historical and current implementation of nullification. Let us know in the comments if you have any questions, concerns, or other thoughts, and we will try to incorporate them into future posts.
In this post, I was concerned only with state nullification, though there are many other kinds of nullification that fit the broad definition. This includes nullification by sheriffs, jury members, and individual citizens in varying capacities. Hopefully I can describe some of these further in future posts.
If you are looking for more information on state nullification, Tom Woods wrote the book on nullification, “Nullification: How to Resist Federal Tyranny in the 21st Century”, which I recommend everyone to read. He also put together an excellent online resource to answer common objections to nullification, nullificationfaq.com.