The nation is deeply divided, with huge political differences among the nations and their individual citizens. In the November 2020 election, California voters favored the Biden-Harris ticket on President Donald Trump by over five million votes along with a margin of 29 points. In other states, Republicans favored Trump over Biden-Harris by a similarly lopsided margin. Back in Tennessee, where I live, Trump won over 60 percent of the vote, and also in my house county the split was 71-27 percent. Regardless of the resistance of over 74 million Republicans, constituting an electoral majority of 25 nations, in winner-takes-all fashion the Biden-Harris government is pursuing an unparalleled schedule of far-left policies, including H.R. 1, the PRO Act, the Equality Act, multi-trillion-dollar paying programs, the Green New Deal, statehood to the District of Columbia, and lots of contentious executive orders. These suggestions have galvanized conservative resistance, often under the banner of the Tenth Amendment.
In our constitutional system, the federal government is designed to exercise only the limited powers explicitly granted to it, and the states are supposed to keep all powers not so expressly delegated. The benefit of a federal program is that the states continue to exist just as meaningful governmental units–autonomous entities, albeit part of the Union–not as mere appendages of the federal Leviathan. The majority of nations (27) have Republican governors. Federal policies ranged from the country’s capital are anathema to a lot of citizens. Thus, some conservatives and libertarians in red states, seeing the unfolding Biden-Harris schedule with alarm, have started discussing”nullification.” Legislation embracing a variety of types of nullification was proposed in atomic enclaves like Montana, Wyoming, South Dakota, Texas, and Oklahoma.
What exactly does that mean, and can it be a viable alternative?
A Checkered History
“Nullification” is a phrase that’s been used throughout the life of the Republic in many different ways. Composing anonymously, Thomas Jefferson and James Madison advocated the doctrine of nullification at the Virginia and Kentucky Resolutions in 1798, enacted by those states in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, although not identical, both affirmed that states retain authority under the Constitution to ascertain the validity of federal legislation and also to declare legislation unconstitutional. The resolutions were strongly-worded protests, and called for other states to join in resistance to the federal law. While the resolutions condemned the Acts as unconstitutional, they did not explicitly threaten non-compliance or resistance, and disavowed any movement toward secession. The resolutions ultimately were calls for Congress to repeal the Alien and Sedition Acts.
The legislatures of Virginia and Kentucky implicitly claimed that the Supremacy Clause in Art. VI only applies to federal legislation made”in Pursuance” of the Constitution, and that states could decide whether legislation are unconstitutional. The Constitution is a compact, yet the resolutions emphasized, which claims had entered into just dependent on the limited powers granted to the federal government and the rights held by the states. Obliterating those constraints would constitute”tyranny,” in Jefferson’s ghost-written (and somewhat florid) words to the Kentucky Resolution. Virginia, in contrast, averred that an unlimited federal government would”transform the present republican system of the USA to an absolute, or at best, a mixed monarchy.” Yet, unless states affirmatively resist an objectionable government law, protests in the name of nullification are just words.
Regardless of the resolutions’ lack of teethnullification was a bold position in 1798, when the construction of the Republic remained an open issue. Given our history, it appears more tenuous in 2021.
If a state believes that a federal statute or executive order violates the Constitution, the remedy is to challenge its constitutionality in court, even as state attorneys general frequently do.The repeal of the Alien and Sedition Acts following Jefferson’s election in 1800 obviated a nullification crisis, however the dilemma of nullification re-surfaced in 1832-33 through the presidency of Andrew Jackson as soon as the state of South Carolina supposed to announce”null and void” a federal tariff legislation (the Tariffs of 1828 and 1832) it found objectionable. Contrary to the Virginia and Kentucky Resolutions, South Carolina’s Ordinance of Nullification threatened secession if the federal government tried to collect tariff duties by force. Jackson, none to back away from a fight, cautioned South Carolina who”disunion by armed force is treason,” and ready to use military power against South Carolina if needed. Jackson told a congressman in the Palmetto State who”if a single drop of blood will be shed in resistance to the legislation of the USA, I’ll hang the first man I can put my hand on participated in these treasonable behavior, on the first tree I could achieve.”
The Civil War has been fought on secession, maybe not nullification, and provides little useful advice on the doctrinal matter of states’ ability to declare federal laws unconstitutional (while providing plenty on the question of secession). Nor are any of those minor skirmishes over nullification in the 19th century particularly dispositive.
The Framers never squarely addressed nullification. In Federalist No. 46, Madison indicated that the dual sovereignty of these states would serve as a check on federal authority surpassing its proper boundaries:
Proponents of nullification occasionally lent to the essay support to their doctrine as a check on federal overreaching, but Madison didn’t move that far. The basis of Federalist No. 46 is pro-ratification”happy talk” aimed at dubious states, placating them with assurances that, as a practical matter, federal usurpation–the”annihilation” of state governments–was not possible. Inside this, and a number of other respects, the more skeptical and pessimistic Anti-Federalists were prescient.
Exactly what Madison wrote in the Federalist is not controlling in any event. Does the Constitution–in its text or as interpreted by the Supreme Court–allow states unilaterally to violate national legislation on the grounds that they believe the law is unconstitutional? The doctrine of judicial review and also the Court’s later assertion of judicial supremacy in Cooper v. Aaron (1958) complicate the investigation, at least if”nullification” can be employed in the feeling of defying or ignoring federal lawenforcement. Cooper v. Aaron coped with a form of nullification–the gigantic resistance to the desegregation arranged by Brown v. Board of Education (1954)–and unambiguously rejected it.
Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. 3″to support that Constitution.” … No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. (Emphasis added)
In short, the Constitution means what the Supreme Court says it means, and also the decision of an unelected five-person bulk is final and binding on the remainder of the state –just as the Anti-Federalists predicted. Contrary to the weak alliance contemplated by the Articles of Confederation, under the Constitution unanimity of the states is not required for federal action.
Clearly, then, under the authority of Cooper v. Aaron individual nations can’t merely defy federal legislation, or even the Supreme Court’s interpretation of the Constitution, however sincere–or valid–their objection for it. Defiance of the law–the most aggressive kind of nullification–is not in agreement with the principle of law.
In recent decades, though,”nullification” has been used in a looser sense (sometimes known as”interposition”), in the context of states legalizing marijuana (the possession and sale of which are prohibited under federal regulation ), cities announcing themselves”sanctuaries” for illegal aliens, and the like. Opposition brief of outright defiance is not forbidden by the Supremacy Clause.
Countries are free to decline to aid in the enforcement of federals legislation to which they aim, but they can’t actively intervene with the government’s operations. As a result of their double sovereignty, state governments (and their political subdivisions) are allowed, within limits, to disagree with federal law. In a dispute regarding Pennsylvania’s objection to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) that the states can’t be forced to utilize state law enforcement resources to enforce federal law. This principle, re-affirmed in New York v. United States (1992) and also Printz v. United States (1997) since the idea that the federal government cannot”commandeer” state officials to apply federal legislation, allows states to refuse to collaborate with federal government about the enforcement of legislation they find objectionable, even if they cannot affirmatively interfere with law enforcement of federal law.
Sometimes mere non-cooperation is inaccurately called”nullification.” In the aftermath of the November 2020 electionsome conservative states are mimicking the progressive model by proposing to eventually become”Second Amendment sanctuaries.” A pending bill in Tennessee, by way of instance, would prohibit”the state and political subdivisions from using public resources to apply, administer, or collaborate with law authorities or government of” any law abridging the Second Amendment. Legislation restricting abortion would stay subject to challenge in court.
How much can this go? Countries are free to decline to aid in the enforcement of federals legislation to which they aim, but they cannot actively intervene with the government’s operations. In light of the overwhelming resources in the disposal of the federal government, non-cooperation by recalcitrant states is not a significant impediment. Some proposals–under the rubric of”restoring nation sovereignty”–go further, purporting to require state courts to reject federal judicial precedents when hearing cases challenging the constitutionality of laws. This method is almost certainly unavailing under the Supremacy Clause.
Other suggestions, such as constitutional amendments to overturn specific Supreme Court decisions, to demand super-majorities of the Court to invalidate state legislation, allowing Congress or the states to veto Supreme Court decisions and the like, as advocated by Texas Gov. Greg Abbott (among other people ), could seek to nullify federal legislation inside the structure of the Constitution. This approach, while consistent with constitutional norms, is not likely to succeed as a practical matter. As I noted in Law & Liberty in 2016,”34 states won’t ever support a constitutional convention, and even if they did–and then embraced these nine amendments–it’s barely possible that three-fourths of those nations (38) would ratify them.”
Some theories advanced by conservative activists are clearly extra-constitutional, like the Reformation era”Lesser Magistrate Doctrine,” which is a pseudo-religious rationale for civil disobedience. Similarly, the Declaration of Independence–an announcement of rebellion–finally rested on humanity’s inherent right”to change and abolish” an oppressive regime,”and to institute new Government.” This is really a call for revolution, always leading to war. Because of this, it’s a step of last resort, to not be undertaken (or recommended ) lightly. The road to Appomattox was cluttered with over 600,000 corpses.
It is unfortunate that the Biden-Harris government, with the backing of the Pelosi-led House along with the Schumer-led Senate, appears intent on forcing a split country to the brink. Neither moderation nor respect to federalism temper the Democrats’ policy schedule. Americans frustrated with this situation don’t have any simple –or simple–options. They are free to take part in and affect all levels of government, however, just inside the established institutional framework and using the recognized resources of legislatures, executives, and judges. This might not guarantee results, however it’s the only legitimate route forward.
“Nullification,” in the sense of either repudiating or hammering duly enacted federal legislation, is really a futile action which, at best, can waste time and make disappointment; in the worst, it is going to lead to armed confrontation of the type Andrew Jackson jeopardized in 1832-33. After the events of January 6, it needs to be clear that”going rogue” is not a viable approach in the 21st century. In order to preserve constitutional government, Americans must operate within the Constitution and its own processes.