What is State nullification? (there are other forms as well)

Nullification is any act, or set of actions, taken by a state legislature finding a federal act unconstitutional, and rendering it null, void or simply inoperable in that state.

Where did nullification originate?

It finds its basis in the very structure of the Republic. The people of 13 independent, sovereign states agreed to form a political union and delegated specific, limited powers to the federal government through the Constitution, retaining all other power and authority to themselves. It logically follows that the political societies delegating power retain the authority to determine its extent, and take steps when the government they created tries to operate outside of those boundaries.
Virginia ratifying convention delegate George Nichols spelled out the principle when he assured his fellow delegates that Virginia would be “exonerated” if the federal government tried to exercise undelegated powers.

If thirteen individuals are about to make a contract, and one agrees to it, but at the same time declares that he understands its meaning, signification and intent, to be, what the words of the contract plainly and obviously denote; that it is not to be construed so as to impose any supplementary condition upon him, and that he is to be exonerated from it, whensoever any such imposition shall be attempted — I ask whether in this case, these conditions on which he assented to it, would not be binding on the other twelve? In like manner these conditions will be binding on Congress. They can exercise no power that is not expressly granted them.

Who first formalized the principles of nullification?

Thomas Jefferson and James Madison first formally articulated the doctrine in the Kentucky and Virginia Resolutions of 1798, responding to the clearly unconstitutional Alien and Sedition Acts. Jefferson asserted that the states were “not united on the principle of unlimited submission to their general government,” and “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” Madison made a similar case in the Virginia Resolutions, arguing that, “in case of a 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.”

Wasn’t nullification just used to protect slavery?

No. It was never used to uphold slavery. Through history, Americans have appealed to the principles to protect free speech, block military conscription, further economic freedom and protect the rights of runaway slaves.

Doesn’t the Supremacy Clause make nullification unconstitutional?

No. The Supremacy Clause reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land.

Only laws made in pursuance of the Constitution – that is, in keeping with the powers enumerated to the federal government – stand as legitimate laws. All other acts are usurpation, and by definition null, void and of no force. An illegal act cannot stand supreme.

The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of it’s enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.

Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it…

16 Am Jur 2d, Sec 177 late 2d, Sec 256

Doesn’t the Supreme Court make the final determination on the constitutionality of an act?

No. Nowhere is the SCOTUS granted the sole authority to determine the extent of federal power. It is a nonsensical position, since the Supreme Court is itself a part of the federal government. It’s a little like letting a UK player referee a basketball game between Kentucky and Indiana. In fact, the political society delegating the power retains the authority to judge the extent of that power and determine when an overreach exists. Jefferson makes this argument in the Kentucky Resolution of 1798.

The government created by this compact (the Constitution) 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; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.

Madison expounded on the idea in his Report of 1800.

However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert for ever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.

Further Reading:

The Kentucky Resolutions of 1798

The Virginia Resolutions of 1798

16 Am Jur 2d, Sec 177 late 2d, Sec 256




Mike Maharrey