Nullification, often linked to states’ rights by those wary of federal overreach, has been the subject of heated debates for over two centuries. These discussions, with their rich history and complex implications, are likely to persist. However, it is important to note that nullification of federal laws under the U.S. Constitution is strictly prohibited under Article VI Section 2:
This Constitution, and the Law 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.
The popularity of nullification has increased and decreased depending on the political climate. This is because people believe that the national government has abandoned the idea of protecting natural rights, which are inherent to all individuals, and replaced it with protecting the government’s power. If you understand the original concept of the federal government, in which a limited government was split between the national and state levels, then you would also understand why the Founders were intent on this form of government.
What onerous things does the federal government do that we would consider an overreach? Health care, environmental issues, and overregulation are among those items that many Americans consider an overreach of the national government. The national government entering issues it was never intended to solve gives a perception of the government picking winners or “groups” over the individual. So, how do we solve these problems? Do we nullify laws or secede?
People continue to have this debate, which is a vibrant one because they are seeing the same phenomenon across all issues – a tendency and inclination to expand the powers of the government. People want a restraint on the government but do not seem to have an outlet to express this view because we view all three branches as colluding. What happens is that we do not, as Americans, promote lawlessness, and we are not yet at the point of revolution like our Founders were, so the populace turns to the states and nullification. These are great conversations, but nullification is unconstitutional as there is no right in the U.S. Constitution for states or individuals to nullify federal law. The debate over nullification was particularly heated during the time of the Alien and Sedition Act, a controversial law that criminalized criticism of the government and was seen as a clear overreach of federal power.
However, this does not mean that resistance is futile. The judicial system and the election of representatives who align with the will of the people and the states are viable alternatives. It’s important to remember that we didn’t secede from Great Britain; we fought a revolution based on natural rights and a long train of abuse and usurpations. Revolution should be the last resort, not the first, as it cannot be for light and transient reasons, unlike the Civil War, where secession happened over a single issue – slavery.
Historically speaking, both Jefferson and Madison addressed the issue of nullification through the Kentucky and Virginia Resolutions. Unlike the Kentucky Resolution, which took a radical approach, the Virginia Resolution used the idea that a plurality of states needed to show the unjustness of a law when determining that a law should not be followed. Both resolutions were written in direct opposition to the Alien and Sedition Act, which was blatantly unconstitutional.
Fast forward to the march to the Civil War, Jefferson Davis disavowed nullification, deeming it unconstitutional, even though he argued in favor of secession, which was also unconstitutional because secession is usually based on the premise of a light and transient cause versus a long train of usurpation and trampling of natural rights. In other words, you cannot stomp your feet, take your toys home, and say you do not like something and will not follow it.
One of the reasons why nullification and secession took hold in the country during the years leading up to the Civil War is because of Senator John Calhoun and his speaking ability where he established a new basis for the founding of our country by rejecting the Federalist papers and Publius’s argument of an energetic but limited government. He disagreed with the idea that the government was established to protect natural rights and that no state is sacred. He also separates the Declaration from the Constitution and says the Constitution is a standalone document. This is an incorrect interpretation because you cannot have the Constitution without the Declaration. Calhoun believes there is a constitutional right to nullify and secede only because he interpreted the Constitution as a standalone document and a compact between the states. This is again incorrect because the Constitution is a compact between the people of the states and not the state governments. We know this because the preamble of the Constitution states, “We the people,” not “We the states of the United States.”
Calhoun makes his argument because of the Missouri Compact, a compact between the states. Northerners are saying that Congress has the right to make laws outlawing slavery. However, Southerners cite the Northwest Ordinance (ironically written by a slaveholder, Thomas Jefferson), stating that while it may allow Congress to legislate in the Northwest Terrority (as it was then known), it was only done by a compact of the states. It was not an actual act of the National government. So, while this instance goes directly to the concept of slavery, one could make the same argument today on a different issue and say a law originating in a way that it should under the Constitution is wrong because we disagree with it, and therefore, we can nullify it.
So, where does this argument come from? Does it come when there is a belief that all three branches have conspired to ignore the will of the people, like what happened with the Alien and Sedition Act, or when sections disagree on an issue such as slavery and what recourse do the people have when their rights are tramped on? The view is that there is no recourse through the Judiciary because if all three branches have conspired, then the Supreme Court cannot be the final arbitrator of the Constitution. However, this is where people are wrong because the Supreme Court is not the final arbitrator of the Constitution, but it does play a crucial role in interpreting and upholding the Constitution, which is the ultimate law of the land.
Where does that leave the people? If they feel that the Judiciary is not an option, then elections are the next option. Hamilton suggests in Federalist 1 that it is up to people to reflect and choose. He states:
It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are capable or not, of establishing good government from reflection and choice, or are they forever destined to depend, for their political constitutions, on accident and force.
The people’s remedy to unjust laws is elections, a process that has proven successful time and again. We saw this during the healthcare debates in 2010 and, most recently, in response to the overreach of the Biden administration. Each time, the people, through the election process, restored balance to all three branches, giving us hope that our voices will be heard.
Therefore, it is our responsibility, as citizens who want a government that truly represents us, to keep a check on government overreach. It is not through nullification or secession (unless there is a long train of abuses and usurpations) it is through the judiciary. If they cannot be trusted, it is through the election process. Our Founders entrusted us with the power to reclaim our country, and we have exercised this power countless times. It seems we did so as recently as the 2024 election, and if necessary, we can do it again in two years.
