The major argument used by those that oppose Nullification is the Constitution’s supremacy clause.
But in fact, the arguments for the supremacy clause ARE the arguments for nullification.
This Constitution, and the laws 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, anything in the Constitution or laws of any State to the contrary notwithstanding.
In the North Carolina state ratifying convention, Timothy Bloodworth articulated the consensus of those that opposed the supremacy clause when he said, “It appears to me to sweep off all the Constitutions of the states. It is a total repeal of every act and Constitution of the states. The Judges are sworn to uphold it. It will produce an abolition of the state governments. Its sovereignty absolutely annihilates them.”
So, was Timothy Bloodworth and others who opposed the Constitution and the supremacy clause because they believed they would not sufficiently limit federal power right, or were the Federalists right when they claimed the Constitution was indeed a limiting document?
The major architects of the Constitution, and those that led the fight for its adoption, laid down what the supremacy clause meant during the ratifying conventions. By doing so, they defended state sovereignty, and set the stage for the negation of unconstitutional actions.
Alexander Hamilton promised during the New York Ratifying Convention that the, “supreme Legislature has only general powers and the civil and domestic concerns of the people are regulated by the laws of the several States. … If the State governments were to be abolished, the question would wear a different face; but this idea is inadmissible. They are absolutely necessary to the system. Their existence must form a leading principle in the most perfect Constitution we could form.” And later he said, “I maintain that the word supreme imports no more than this — that the Constitution, and laws made in pursuance thereof, cannot be controlled or defeated by any other law. The acts of the United States, therefore, will be absolutely obligatory as to all the proper objects and powers of the general government…but the laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding”. And again In Federalist #33: “It will not, I presume, have escaped observation that it expressly confines this supremacy to laws made pursuant to the Constitution….” (Emphasis Added)
Thomas McKean, at the Pennsylvania Ratifying Convention, said, “The meaning [of the Supremacy Clause] which appears to be plain and well expressed is simply this, that Congress have the power of making laws upon any subject over which the proposed plan gives them a jurisdiction, and that those laws, thus made in pursuance of the Constitution, shall be binding upon the states”. (Emphasis added)
And from the first North Carolina ratifying convention, James Iredell said, “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.” (Emphasis added)
James Madison further defended the supremacy clause in Federalist #45 by stating, “The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.” (Emphasis added)
Then we have Noah Webster, writing as “America,” also explaining the Supremacy Clause. “You know that the powers of the Congress are defined, to extend only to those matters which are in their nature and effects, general. You know, the Congress cannot meddle with the internals police of any State, or abridge its Sovereignty. And you know, at the same time, that in all general concerns, the laws of Congress must be supreme, or they must be nothing.” (Emphasis added)
Repeatedly, the Federalist endorsed arguments establishing federal supremacy in the areas that were laid out in the enumerated powers of the Constitution, but in doing so they recognized that in ALL other areas, the states remained supreme. This is what has come to be known as “dual federalism” or “dual sovereignty,” and this is the common thread put forth in defense of the supremacy clause.
The ratifiers clearly intended that the states serve a check on the general government exceeding its authority.
Thus by their very defense, the proponents of the supremacy clause established the concept of nullification, if not in word. That came later with Thomas Jefferson. But the framers and ratifiers repeatedly stated that unconstitutional laws were “no longer supreme or binding” and “Congress cannot meddle with the internal police of any state, or abridge its Sovereignty.” They clearly intended for the states to be a “check” on the general government.
So, if the states where to be a check on the unconstitutional actions, how were they to do so?
Thomas Jefferson said in the Kentucky Resolves opposing the Alien and Sedition and Acts; “Resolved, that the several States composing the United States of America, are not united on the principle of unlimited submission to their general government … whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
And, …”that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who administer the government, and not the constitution, would be the measure of their powers…
That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour (sic) of that instrument, is the rightful remedy.” (Emphasis added)
And what did Madison say in the Virginia Act opposing the same Alien and Sedition Acts?
“That this Assembly (Virginia) doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact; and that in case of deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them. (Emphasis added)
“…That government was an agent. It could not be the judge of its own powers. To allow it to be so would mean nothing less than a government of unlimited power, a tyranny. The partners to the Constitution, the sovereign peoples of the States, were the final judges of what they had intended the Constitution to mean. When the general government exceeded its power it was the right and duty of the State to interpose its authority and defend its people from federal acts of tyranny – yes, to render a federal law inoperative in the State’s jurisdiction…” (Emphasis added)
Clearly, our founders “are not united on the principle of unlimited submission to their general government.” They established the means for the states to defend themselves and their citizens from a general government that exceeding its authority and that power is NULLIFICATION.
I think the best description of what NULLIFICATION is and is not is found in Nullification: It’s Official by Derek Sheriff.
Nullification is not secession or insurrection, but neither is it unconditional or unlimited submission. Nullification is not something that requires any decision, statement or action from any branch of the federal government. Nullification is not the result of obtaining a favorable court ruling. Nullification is not the petitioning of the federal government to start doing or to stop doing anything. Nullification doesn’t depend on any federal law being repealed. Nullification does not require permission from any person or institution outside of one’s own state.
So just what IS “official” nullification you might be asking?
Nullification begins with a decision made in your state legislature to resist a federal law deemed to be unconstitutional. It usually involves a bill, passed by both houses and signed by your governor. In some cases, it might be approved by the voters of your state directly, in a referendum. It may change your state’s statutory law or it might even amend your state constitution. It is a refusal on the part of your state government to cooperate with, or enforce any federal law it deems to be unconstitutional.
Nullification carries with it the force of state law. It cannot be legally repealed by Congress without amending the US Constitution. It cannot be lawfully abolished by an executive order. It cannot be overruled by the Supreme Court. It is the people of a state asserting their constitutional rights acting as a political society in their highest sovereign capacity. It is the moderate, middle way that wisely avoids harsh remedies like secession on the one hand and slavish, unlimited submission on the other. It is the constitutional remedy for unconstitutional federal laws.”