Is Nullification Unconstitutional?

Now on some level, we shouldn’t care: resisting violent people who claim the right to expropriate you and force you around is a natural right, and doesn’t rely on any parchment guarantee.

But I for one prefer to address my opponents from every angle I can, including their own.

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: “This Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.”

In other words, the standard law-school response deletes the most significant words of the whole clause. It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not “in pursuance thereof” and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, “This Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.”

Hamilton himself explained at New York’s ratifying convention that while on the one hand “acts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,” at the same time “the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.” In Federalist 33, Hamilton noted that the clause “expressly confines this supremacy to laws made pursuant to the Constitution.”

At North Carolina’s ratifying convention, James Iredell told the delegates that when “Congress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.” In December 1787 Roger Sherman observed that an “excellency of the constitution” was that “when the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.”

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state’s reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states’ powers is not the purpose of and is alien to the structure of that document.

James Madison urged that the true meaning of the Constitution was to be found in the state ratifying conventions, for it was there that the people, assembled in convention, were instructed with regard to what the new document meant. Jefferson spoke likewise: should you wish to know the meaning of the Constitution, consult the words of its friends.

Federalist supporters of the Constitution at the Virginia ratifying convention of 1788 assured Virginians that they would be “exonerated” should the federal government attempt to impose “any supplementary condition” upon them – in other words, if it tried to exercise a power over and above the ones the states had delegated to it. Virginians were given this interpretation of the Constitution by members of the five-man commission that was to draft Virginia’s ratification instrument. Patrick Henry, John Taylor, and later Jefferson himself elaborated on these safeguards that Virginians had been assured of at their ratifying convention.

Nullification derives from the (surely correct) “compact theory” of the Union, to which no full-fledged alternative appears to have been offered until as late as the 1830s. That compact theory, in turn, derives from and implies the following:

1) The states preceded the Union. The Declaration of Independence speaks of “free and independent states” (and by “states” it means places like Spain and France) that “have full power to levy war, conclude peace, contract alliances, establish commerce, and to do all other acts and things which independent states may of right do.” The British acknowledged the independence not of a single blob, but of a group of states, which they proceeded to list one by one.

The states performed activities that we associate with sovereignty. Massachusetts, Connecticut, and South Carolina outfitted ships to cruise against the British. It was the troops of Connecticut that took Ticonderoga. In New Hampshire, the executive was authorized to issue letters of marque and reprisal. In 1776 it was declared that the crime of treason would be thought of as being perpetrated not against the states united into an indivisible blob, but against the states individually.

Article II of the Articles of Confederation says the states “retain their sovereignty, freedom, and independence”; they must have enjoyed that sovereignty in the past in order for them to “retain” it in 1781 when the Articles were officially adopted. The ratification of the Constitution was accomplished not by a single, national vote, but by the individual ratifications of the various states, each assembled in convention.

2) In the American system no government is sovereign, not the federal government and not the states. The peoples of the states are the sovereigns. It is they who apportion powers between themselves, their state governments, and the federal government. In doing so they are not impairing their sovereignty in any way. To the contrary, they are exercising it.

3) Since the peoples of the states are the sovereigns, then when the federal government exercises a power of dubious constitutionality on a matter of great importance, it is they themselves who are the proper disputants, as they review whether their agent was intended to hold such a power. No other arrangement makes sense. No one asks his agent whether the agent has or should have such-and-such power. In other words, the very nature of sovereignty, and of the American system itself, is such that the sovereigns must retain the power to restrain the agent they themselves created. James Madison explains this clearly in the famous Virginia Report of 1800:

The resolution [of 1798] of the General Assembly [of Virginia] relates to those great and extraordinary cases, in which all the forms of the Constitution may prove ineffectual against infractions dangerous to the essential right of the parties to it. The resolution 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, 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.

In other words, the courts have their role, but in “great and extraordinary cases” it would be absurd for the states, the fundamental building blocks of the United States, not to be able to defend themselves against the exercise of usurped power. The logic of sovereignty and the American Union demand it.

And as for “but Madison later claimed he never supported nullification!” see my NullificationFAQ.com, and/or pages 288-290 of my book Nullification.

At Odds

No. It’s using the constitution and the government against the people that’s unconstitutional such as the 16th and 17th amendments. Then, somehow turn around the meaning and definition of the “rule of law” to indoctrinate people to obey such arbitrary laws.

The dominating arguments are all backwards. It is not the pro-nullifiers that want to nullify the constitution or America’s ideals or the rule of law; it’s the anti-nullifiers who want to keep the unconstitutional lawlessness intact. The constitution and laws that are “necessary” already have been nullified by the federal and state governments. The pro-nullifiers just want them back.
http://www.facebook.com/gtmorin Greg Morin

Tom, wish you could have had a guest spot on Colbert last week after Cliff Sloan – to nullify his anti-nullification arguments. It was literally painful to watch. http://www.colbertnation.com/the-colbert-report-videos/423308/january-29-2013/gun-control—state-sovereignty—cliff-sloan
Anonymous

“This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.”

Pretty much every appeal that statists make to the Constitution is odd.
Dan Haggerty

Tom – Your effort in Iowa will be especially important now that Uber Neocon Karl Rove has established a PAC with the express purpose of opposing Tea Party candidates and removing Tea Party Officeholders. While there is not total overlap between TP members and Paulians, the Paulians will get the same treatment .

Good Luck
Gill O’Teen

Would these be the same “law professors” who hold that “the right of the people to keep and bear Arms, shall not be infringed.” applies only to a militia and not to ‘infringements’ they approve? Would these be the same whizzers of smart who think “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof” means I cannot pray in a public place before lunch, or that I’m only free to follow a religion whose beliefs are politically correct? I used to teach adult ed inside a prison. One of my ‘benefits’ was free lunch in the residents’ cafeteria. Believe me, those meals needed all the prayer I could say in the time allowed, and I didn’t care that there were watching eyes and I might offend someone.
Tyler

I wrote a small blog post on nullification if anyone is interested, most of the information of which I am indebted to Tom, of course. http://principledliberty.blogspot.com/2013/01/the-nullification-debate.html
JackofSpades

What I got from that argument is that Tom Woods is a Neo-confederate.

Slavery, racism, the racism of slavery, and neo-confederate.

Argument refuted chump.
Anonymous

I think one thing libertarians need to make clear is that we don’t blindly follow old documents. Yes the constitution is important and every line has written for a reason. But I think the libertarians utopia is anarchy, or course as with the nature of utopia’s that’s probably not possible. Natural law and the actual theory of liberty is what we should be preaching.
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Jim

I think its important for libertarians to take the Constitutional approach as well as a less centralized approach. For one thing – when we’re talking about the Constitution we aren’t talking about any anarchist theorizing – the document actually exists and is sort of in use today, so it’s not abstract. For example, try explaining how people will resist the invading barbarian hordes without the Good Ol’ Fed and watch the eyes glaze over. I’m not not a Constitutionalist, but it does provide a sort-of government limiting starting point that we’ve already got. Not bad!

As for utopia, that’s not really the point of liberty. I think Leonard Read has it right in his response to “well how will you anarchists provide defense, or for the poor, or get your junk mail?” – Read says “I don’t know.”

https://mises.org/daily/5786/I-Dont-Know
Jim

I meant that @thorax232:disqus – sorry about that.
Michael Mills

Damn you beat me to it… I was going to open up with “Raaaaacism…” And end with “Braiiins…”
Silver

But the point of a Free market is that none of us know. The point is that competition brings about the best answer, so to ask how exactly something is going to happen is moot because the best of competition rises to the top.

Also, the barbarian hordes (just like in ancient rome) have the most incentive to attack when the government of today is attacking their cities and drone bombing their people. There’s very little incentive to attack an extremely prosperous (lack of a state) people who causes them no harm. Aside from the fact that they’ll probably end up migrating here.

The poor’s defense is provided by the same means that the poor gets most things they can’t afford. Either by charity (which the past has shown is very abundant if not restricted), by working for the institution that they need to be provided from, or even by mooching. Prosperous businesses care very little about people receiving their services for free if they are still raking in profits. The problem of the free rider is really only a government problem. Besides, the poor will be almost non-existent in a society that does not inhibit any action that could make them prosperous.

The constitution is “kinda” working??? Kidding, right?? Patriot act? NDAA??… meh
Jim

When I say “kinda” I mean that it has provided some deteriorating hedge against the total state for over 200 years. It also provides something specific to fall back to. Sure, it sets up a federal government in the first place. And it does directly allow many of the problems of government overreach we face today. It doesn’t work. But it hasn’t been completely incompetent at limiting it. After all, nothing limits bureaucracy like bureaucracy! And it does cause that! So, yeah, it is “kinda” working.

As for the rest, I’m not sure where you think the difference of opinion is. I referenced the article by Read to illustrate that libertarianism is not utopian.
Silver

you’re right on the utopia issue. I misunderstood your point. sorry.
devo

the constitution should not be our anchor, liberty is the goal.
Dorwin Dow

For the federal government to deny nullification is for the federal
government to itself exercise a sort of nullification, only of the constitution
as a whole, by essentially asserting – contrary to the constitution – that the
states and their respective peoples are forever bound to it as property under a
master. But the nature of the contract is such that the federal government is
the creature subject to the will of its creator. The federal government has no
protection from the states dissolving it, and no right to alter the nature of
the agreement as if it was a separate party to the agreement with authority to
bargain for itself – its very existence stands or falls by the agreement, it is
not an independent agent. But alas, as its prophets breathe life into this
beast, it now acts as if it is a self-existent entity creating its own
constitution and absorbing all authority into itself so as to rule over
everything. This is the structure of despotism, and because it is created by
scoundrels without honor or principles, it will inevitably take on the
character of its creators. Gentlemen, we have ourselves a tyrant, however softly
and gently he may grind us into the dirt with its boots. At this point, nullification
by the people – that is, by the state, the county, the sheriff, the jury –
seems to be the only effective way remaining to stop feeding this beast. We
might argue about what is a valid cause or suitable process for nullification,
but nullification itself is not arguable. Until men are sinless and do not break
their agreements, nullification is valid for just cause. It is a natural and
unalienable right woven into the very fabric of existence. We cannot be bound
to another man’s lies and fabrications.
Dorwin Dow

Let me clarify. It is the federal government which is unlawfully practicing nullification. When the states properly practice nullification, this is a lawful and orderly means of enforcing the constitution. When the federal government begins to enforce its denial of state nullification, then we need look no further for the signs of a despotism. It is in our presence and already working.
BB

You are incorrect in referring to a libertarian society as utopian. Rothbard in For a New Liberty addresses this erroneous charge specifically:

““In short, the term “utopian” in popular parlance confuses two kinds of obstacles in the path of a program radically different from the status quo. One is that it violates the nature of man and of the world and therefore could not work once it was put into effect. This is the utopianism of communism. The second is the difficulty in convincing enough people that the program should be adopted. The former is a bad theory because it violates the nature of man; the latter is simply a problem of human will, of convincing enough people of the rightness of the doctrine. “Utopian” in its common pejorative sense applies only to the former. In the deepest sense, then, the libertarian doctrine is not utopian but eminently realistic, because it is the only theory that is really consistent with the nature of man and the world.”

Excerpt From: Murray N. Rothbard. “For A New Liberty.” Ludwig von Mises Institute. iBooks.
This material may be protected by copyright.
Gil

As written prior to the U.S. Civil War.
Anonymous

You really are a moron.

That He recognizes the fact that the individual States have the power to decide about slavery is not an endorsement of it.

Here’s the strongest endorsement of slavery I’ve yet seen.

“I have no purpose, directly or indirectly, to interfere with the
institution of slavery in the States where it exists. I believe I have
no lawful right to do so, and I have no inclination to do so.”

Lincoln’s first inaugural address.
Anonymous

Moron might be a compliment. I think the JackOfSpades is closer to an amoeba … maybe a single cell organism, that has a single response to stimuli. When “nullification” is mentioned, the responses is “racism.”
Anonymous

That’s exactly what I got out of the article: racism, slavery, cat-juggling, and delayed oil changes for your car. It’s hard to refute JackofHades eloquent missive.
Michael Mills

Wait, wait, tell me you guys didn’t take his response seriously? Seriously?!
JackofSpades

Not sure if serious (as the kids say), but if you are serious check out “Interview with a Zombie” (Tom’s June 29, 2010 entry).
Anonymous

Read the comment again, and don’t be so apt for a fight.
ed61va

If you think the Austrians are racists, check out this … Rothbard, M. N. (2013, January 29). The Brutality of Slavery – Murray N. Rothbard – Mises Daily. Mises.org. Retrieved January 29, 2013, from http://mises.org/daily/6347/The-Brutality-of-Slavery
Robert Roddis

We have to understand that statism is a religion to these statists (as opposed to being like a religion). I went to law school 1977-1980. These topics were never mentioned except once in onstitutional law class where we were warned the first day to never mention that constitutional interpretations of the power of the feds was changed during the New Deal.

These law professors know nothing of these topics. Our positions on nullification and/or Keynesianism/the Fed are nothing but blasphemy to them. To them it’s as if we were in an Islamic society and wanted to discuss Mohammed having sex with prostitutes. Or animals. They are defenders of the faith.
http://www.facebook.com/jordan.breon Jordan Breon

I have put forth this exact same argument, time and again. Sometimes I think my ideological brothers in the libertarian/anarchist camp give too much credit to our adversaries – they assume that in these people lies an ignorance, not a dogmatic slavish devotion to the State. The libertarian approach is often a calculated, reasoned approach, and the assumption is the statists will respond to logical arguments the same way.

It doesn’t work. The statist may believe he is being rational the same way a Christian fundamentalist thinks he is being scientific by using hard data in the Bible as prove of intelligent design. At heart, there is an unquestioning belief; for the latter it is belief in a supernatural, all-powerful God and the former it is an all-powerful, benevolent State. When you debate either of these groups, you’ll find that they assume you have the same religious devotion to a core principle and all arguments spring forth from it. It’s like doing math with a revised and reordered number system.
http://www.facebook.com/profile.php?id=1478243313 Dwight Johnson

The right of judicial review by the Supreme Court to determine the constitutionality of laws is itself unconstitutional. It was fabricated by John Marshall, putting the Supreme Court above the constitution by making itself the constitution’s final interpreter.

What’s wrong with that from a practical standpoint? The result has been a consolidation of power in the federal government, where the Supreme Court gives the go-ahead for the other branches of government to do anything and everything they fancy.

The Soviet Union was destroyed from within because it depended entirely on central planning of everything in society. We are approaching the same point of concentration of power in DC. And it is headed for the same downfall, a collapse under its own weight. That weight can be measured simply by looking at the mountain of debt being added to year upon year.

To correct this, the states should create a Court of the Constitution. Each state would have the same number of members as they have members of the Electoral College. It would have the sole power to review federal laws to determine their constitutionality. With so much power in the hands of the states, the flow of power would reverse, and accrue more and more to “the States respectively, and to the people” (10th Amendment).
Anonymous

There can be no rule of law where the king is the sole arbiter of the same.
Coup D’talk

Simpler than this actually. The states ratified the Constitution. Thus at any point that they decide that it is null, overreaching, invalid, etc, they have to power to withdraw their consent and validation of it. No different than a recall vote really. No more or less to it than that. The Constitution would not and cannot be the law of the land without the ongoing consent to be such by the states that authorized it to be such. People make a big show of convoluting this concept but it is as plain and simple as this. “We giveth, and thus have the power to take away”. The idea that the power of anything is owned by the grantee and not the grantor is an absurd, and unique in all reality to governments alone. If you have the means to build me a car, and I buy it, I don’t now own your factory. Yes, the very idea of Federal superiority is this absurd. In buying your car, I am simply the recipient of something that is far beyond my means or capability to provide for myself. I have no claim of ownership over you and all you own simply because you shared a bit of it with me to the extent that it benefits you. The relationship between the states that granted the Federal government its authority and the federal government as the recipient of this authority is really no different. This is all very simple and verifiable, and equally simple to change when people decide to start thinking again.

How long would the federal government last if the states forbade the payment of federal taxes and stood in defense of any effort to collect them within their borders? We know the FedGov is perpetually 2 weeks away from total bankruptcy. Imagine the FedGov and all its tyranny completely dissolved in 2 weeks. It could happen with almost no effort at all. The government is not some big, powerful monster that we all must acquiesce to. It is a fragile illusion, existing on a knife’s edge, and easy to topple and shatter to bits with little more than a gentle gust of wind. We don’t need guns and ammo. Just a little clarity and a few simple words and deeds.
Anonymous

Tyrant indeed! The whole filthy edifice is rotten to the core.
FarSide.Liberty

I’ve noticed that especially on political blogs, for many people, sarcasm/joking/irony/humor/subtlety wooshes right by.
Anonymous

The teeth of nullification is secession. Secession is as simple as divorce.

What wife, battered by her spouse, after enduring abuse at the hands of her husband, would logically conclude that she must seek her husbands permission to dissolve the bond of marriage, divide what property is commonly owned, and go her separate way peacefully? No rational person would advocate this!

And yet, given an obvious “long train of abuses” by the federal government against the states, a state not only cannot nullify a law, it also may not divorce itself of its abuser. According to who? The abuser, of course.
Anonymous

Meaning what? That the Civil War answered this question?

If so, then John Wilkes Booth answered the question of presidential tyranny.
Anonymous

Can’t swing a dead cat around here without hitting somebody’s delicate sensibilities…
Anonymous

There is still law. Congress can repeal the law of gravity, doesn’t mean pigs will fly.
Oiler

so is it 3000 or 5000 miles (non-synthetic). Al Gore and my oil life indicator say 5000, but warranty-fulfilling paranoia and most dealers say 3000.
REED RICHARDS

Tom,
If this article were not so pathetic, it would actually be laughable. The founding fathers did not intend for the “people” to be sovereign, far from it. That is why the U.S. Constitution does not mention what the states can and cannot do. The founding fathers did not intend for the states to do anything important other than commonplace, inane, administrative matters. And then, only in the context of what Federal Law stipulates. The founding fathers could have easily “enumerated” what powers the states have, but they did not. The U.S. Constitution was a Trojan Horse all along, and the states fell victim to it LIKE THE SUCKERS THEY WERE AND TO THIS DAY STILL ARE. Stefan Molyneux is 100 percent right. You either have no government, or you will end up with big dictatorial government that started out as “SMALL”.
Gil

The 14th Amendment pretty much means States’ rights take a hit.
Gil

Indeed, if the States were supposed to nation-states in their own right and the Federal Government some sort of toothless arbitrator then they shouldn’t have created it all.
Anonymous

No, the 14th assures that state and local governments cannot infinge on constitutionally protected rights any more than the federal government can.

If you want to argue the death of states rights, then the 17th is for you.
Gregor

How the heck did you get racism and slavery out of that???
http://www.facebook.com/bill.evelyn Bill Evelyn

Even Chairman Maobama is nullifying federal laws. He doesn’t abide by the Appeals Court in Washington DC. He doesn’t hold up laws like Defense of Marriage Act or the federal drug laws. Why can’t the states do the same?
Michael Mills

Look up Interview with a Zombie on youtube.
http://www.facebook.com/profile.php?id=612168383 Lars K Tennyson

Isn’t this very argument nullified by the Civil War and the 14th amendment? Their very existence would seem to prove that the federal government claims supremacy over the will of the state/people.
Even though our rights are God-given, the government in recent times have inferred, though not directly stated, that they, in fact, give us our rights. As corporate citizens of the United States through our participation in Social Security are we not now bound to the “laws of the land”?