For over a year, we’ve repeatedly heard from supporters of an organization called Convention of States Project that nullification can’t or shouldn’t be done because – “Nullification….is not in the Constitution.”
We’re not sure why this particular message comes from this direction, but it’s consistent, and common.
More important, though, this is a great example of the complete and utter lack of constitutional education in this country.
It’s the federal government that is prohibited from doing things that aren’t “in the Constitution.” Not the states.
States can do whatever is not expressly prohibited to them in the Constitution and whatever is not prohibited to them in their own constitutions.
Resolving whether nullification is a constitutional doctrine or not (it’s actually “extra-constitutional”) is a worthy discussion, but best-suited for another post.
The important takeaway here is the claim that a state can’t do something because it’s “not in the Constitution” flips the entire structure of the Founders’ design on its head. This is Constitution 101, and everyone should have this basic understanding of delegated and reserved powers. James Madison summed it up best in Federalist #45:
“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”