Nullification: Old Wine in New Bottles

 The doctrine of nullification, a pernicious pillar of southern resistance to the federal government in the 19th and 20th centuries, promotes a constitutional theory that was emphatically rejected by the framers of the Constitution when they cast the Articles of Confederation into the ash can of history.  

      Legislators across the country have resurrected this discredited doctrine and have introduced legislation that, in one way or another, would assert state authority to declare “null and void,” federal laws and executive orders with which they disagree. In essence, these measures would create, variously, state legislative committees, tribunals and councils on federalism, that would possess sweeping authority to convene a meeting and thereby halt efforts by states to comply with, or enforce federal acts, which they believe to have exceeded the power of the federal government.

     The power of a few legislators who serve on these tribunals could be exercised to prevent compliance with laws that govern any part of our lives. In substance, a handful of men and women would be substitutes for the historic method of challenging federal laws and acts in courts of law. 

    In a nutshell, our legislators’ constitutional theory rests of the false claim that, in 1787, the states exercised sovereign authority to create the Constitution. Accordingly, the sovereign states might, at any time, assert the authority to nullify federal laws that they regard as unconstitutional. Southern secessionists followed the logic of this theory and plunged the nation into Civil War. Now, various state legislators have unsheathed the sword of nullification and laid it at the neck of federal laws that they regard as unconstitutional.  As we have observed in previous columns on the subject of federalism, the premises behind their constitutional theory, and reasoning behind them, are severely flawed and find no support in our constitutional architecture.

     Let us recall some constitutional fundamentals. In the Constitutional Convention, the framers drafted a Constitution, which, if ratified by the people, would replace the Articles of Confederation, a governmental scheme that was grounded in the concept of state sovereignty. That system, the framers agreed, had been a disaster, chiefly because the principle of state sovereignty precluded effective national governance. 

     In Philadelphia, the framers replaced “state sovereignty” with “popular sovereignty” which, they believed, meant that the authority of the Constitution flowed from “the people” and not the states. Since state governments, like the federal government, were creatures of the Constitution, and would draw their powers from the Constitution, they could not be party to their own creation. But the American people, the framers held, possessed the ultimate legal authority—a principle articulated in the Declaration of Independence—and could create a government of their choosing. The proposed Constitution, moreover, would have no authority, the framers reasoned, until the sovereign people—not the states—breathed life into it through the ratification process. 

         The assertion that states could nullify federal law would eviscerate the Supremacy Clause of Article VI, flip the Constitution on its head and return America to the plan of the Articles of Confederation, which the framers rebuked. The Supreme Court has consistently rejected the theory of nullification in a string of decisions since the founding, and with good reason. Otherwise, each of the 50 states might claim the power to decide for itself what the law of the land is, a claim that would scuttle our constitutional enterprise.

       There is irony in these legislators’ resort to nullification. Most of them, I suspect, would declare that the Constitution should be interpreted in accordance with the aims and intentions of those who drafted the Constitution, which is the cardinal principle of Originalism. In this instance, however, they are betraying their principles and platform, as well as their professed loyalties, since the framers espoused popular, not state, sovereignty.

      From time to time, over the years, many citizens have expressed frustration with federal laws and acts. For some, those governing public lands, or health care or possession of firearms, have deserved condemnation. For others, regulations in the areas of civil rights, education and the environment, have generated anger and protests.

    State legislators have tools in their belts to challenge laws and acts that they believed have transgressed federal authority. In addition to bringing lawsuits, they may pass joint resolutions to protest measures, and they may petition Congress to provide remedies and correct the offensive acts. But as long as the laws in question remain on the books, states, in accordance with the Supremacy Clause and more than two centuries of constitutional governance, are required to comply with them and prepare for their implementation.