For being such a simple concept, nullification sure does cause a lot of confusion. For some, nullification only counts if certain criteria are met. These criteria typically follow the John Calhoun method of nullification, by which states attempt to veto federal laws and penalize anyone who attempts to enforce them.
The Calhounian method, which is inherently combative, is certainly one way that states can nullify federal laws. But it is far from being the only way. At the Tenth Amendment Center we use the definition that nullification is “Any act or set of acts which renders a law null, void or just unenforceable.”
In our view it is not necessary to specifically seek to veto a federal law. Nullification can occur just by the states refusing to cooperate with unconstitutional actions of the federal government. When states refuse to cooperate with unconstitutional laws, the enforcement of those laws becomes cumbersome to the point of being impossible.
This view was common in the founding era. Alexander Hamilton put it this way: “…acts of the (federal government) which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such.” How would you treat an act of usurpation? By ignoring it.
Abel Upshur, a contemporary of Calhoun who was Secretary of State under President John Tyler, affirmed the founders’ vision of non-compliance as nullification. Upshur stated, “It is admitted on all hands, that when the federal government transcends its constitutional power…the (states)…are no longer under any duty to respect or obey it.”
This understanding has survived the test of time. Writing in 1985, H. Newcomb Morse, a professor of law at Pepperdine University, wrote, “…nullification occurs when the people of a state refuse to recognize the validity of an exercise of power by the national government which, in the state’s view, transcends the limited and enumerated delegated powers of the national constitution.”
There are some who will say that the confrontation method is the only valid exercise of nullification, that state non-compliance doesn’t effectively nullify federal law. This is untrue and the founding generation would have disagreed with this assertion. What’s more, those who insist that non-compliance isn’t nullification do more harm than good, for they cut off an entire line of action that states can take to halt the enforcement of unconstitutional laws.
The point here is not to disparage other methods of nullification. That’s not what we’re about. The point here is to show that to insist that nullification is only one thing is not only factually incorrect, it is counterproductive. State non-compliance can be, and in fact has been, a very effective strategy by the states in maintaining constitutional fidelity.
Sometimes the most effective form of opposition is simply saying no.
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