Should States Be Able To Nullify Federal Laws?

We are all familiar with the three branches of the federal government: executive, legislative and judicial. We were taught that it was an ingenious plan to make sure no one body had too much authority; that the checks and balances in this system would prevent the government from getting out of control and it would help in making sure no one branch was violating the Constitution.

When I first started getting interested in politics and really learned about the Constitution I always felt like there would always be one flaw in it, and that is that the Constitution, being just a document, had no way of really preventing the government from disobeying it. If the congressmen themselves many times have no idea what kind of laws they are allowed to pass, who can we trust to make sure the Constitution isn’t being violated? A dictator could easily make sure things are done according to his law, but there are obvious problems with giving one man or a group of men unlimited authority to create and enforce laws.

The founders did take this into account, however. They knew how dangerous it would be to allow the federal government to police itself, even with its three branches. It is not beneficial to any of the three branches to limit the federal government’s powers since they all belong to the same government.

The fourth branch is the one that we are rarely taught about: the states. Those who love to dictate how other people should live their lives would like us to believe that the federal government should be more powerful than the states; that what the feds say, goes. This obviously makes no sense since it was the states who created the federal government, not the other way around. The states ratified the Constitution and gave the federal government a list of things that it could do. The tenth amendment explicitly 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.”

Nullification, or State Interposition, is the act by a state, of ignoring federal law because it feels the law violates the Constitution.

The first example of nullification occurred in 1798. The Sedition Act, signed into law by president John Adams, essentially made it illegal to criticize the government. Many newspaper writers were sent to jail for doing just that. This law was in obvious violation of the First Amendment. What were the states to do in this case? Kentucky and Virginia drafted statements declaring this law to be unconstitutional. Thomas Jefferson wrote, in the Kentucky Resolutions of 1798:

…[T]he several States composing, the United States of America, are not united on the principle of unlimited submission to their general government…[T]he 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.

In this article, Thomas Dilorenzo talks about the second example of nullification:

After President Jefferson enacted a trade embargo in response to British theft of American ships and the kidnapping of American sailors, New England legislatures nullified the embargo act by quoting Jefferson himself.

Proponents of Nullification often get accused of being pro-slavery. The implication is that only those that believe in the rights of the states to allow slavery can possibly speak in favor of Nullification. That is interesting since nullification was used by Wisconsin, for example, to protect slaves by ignoring the Fugitive Slave Act, which forced states to return slaves within their borders who had fled from other states.

In another post, I discussed the 17th amendment and how it took power away from the states. Unless we repeal the 17th amendment and the states understand that they have the power to nullify federal laws, nothing else that we do is going to prevent the federal government from continuing to grow and become even more dictatorial.

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  • ___j___

    This is one of the few places where your analysis seems flawed to me. Article 6, clause 2, is pretty clear — the Constitution, federal laws, and federal treaties ratified by the Senate (and scotus precedent is clear that those *are* in a hierarchical order) cannot be nullified. “Judges in every State [of the union] shall be bound thereby, any Thing in the [state] Constitution or Laws of any State to the Contrary notwithstanding.”

    Early quotes about state nullification are not useful here. Since the 14th amendment, scotus rulings have begun to consistently apply the bill of rights (specifically 1 thru 8) to state laws as well as federal ones. There used to be, prior to the civil war, tacit agreement that state laws COULD sometimes trump the bill of rights, such as imposing a state religion. The first amendment establishment-clause was seen as applicable to preventing imposition of a national religion by congress or the president, but as not restricting states!

    The legal doctrine of incorporation-of-the-bill-of-rights, based on the 14th amendment language, says that MA cannot impose the puritan religion on citizens of that state, any longer. Similarly, it says that states cannot infringe on the 2nd amendment rights of their citizens, and other useful stuff.

    The trouble, of course, is that you have to get all the way to the scotus to overturn even a municipal statute. McDonald v Chicago required several years, and fancy lawyers. Therefore, although I disagree that classical nullification — the idea that states can simply ignore federal laws they disagree with when they wish — is any use nowadays, there is still a useful kernel here. Most people seem to call it interposition, and it is related to the movement for Constitutional sheriffs. The key difference is that, unlike nullification which allows state law to overturn ANY federal law they dislike, interposition is usually seen as a way to halt the application of bureaucratic regulations, municipal laws, state laws, state constitutions, federal laws, and international treaties… when and if and only to the extent that those statutes are themselves unConstitutional with the plain text of the founding document.

    The point of interposition is twofold: first of all, it benefits citizens who can enjoy their liberties *without* waiting years for their case to wend through the expensive and baroque judicial system. Here is a guy that was handing out anti-TSA flyers and videoing the scene; when the airport’s authoritarian pooh-bah tried to kick him out, then to stop him from videoing, then to stop handing out flyers, the local deputy sheriff intervened on 1st amendment grounds. Here is a clip where the pooh-bah is trying to violate the 4th amendment, and the cop sets him straight — See also, SWAT teams versus raw milk.

    The other benefit of interposition is long-term, but perhaps more important. It puts people into local elected office, and into citywide elected office, and into the statehouse, who are SERIOUS about the idea of following what the Constitution says. This is clearly a win, because folks that get elected to low-level offices can move up.

    So: I submit to you that nullification holds no water. I also don’t think that secession holds any water, for civil-war-related reasons, and pragmatic reasons. Much like the idea of third-party candidates these things are superficially appealing… but fail miserably. The idea of interposition is very simple: when you take an oath to defend the Constitution against all enemies, foreign and domestic, you ought to keep that oath. (Cf the similar oath-keepers group.)

    The biggest advantage of interposition is that it is fixing the justice system from *within* the justice system, much like running liberty candidates in the Republican Party primaries is fixing the party from within the party hierarchy. Interposition is *already* the supreme law of the land: nothing trumps the Constitution! Secession and nullification are, by definition, risky extrajudicial maneuvers.

  • ___j___


    Replace the smiley (above) with numeral eight followed by an rparen

    [the 1st through the 8th amendments are incorporated nationwide]