Nullification: An Unconstitutional Remedy
NC Institute for Constitutional Law
Recently, some groups have attempted to revive the doctrine of nullification, which holds that a state can invalidate what it believes are unconstitutional federal laws based on states’ rights under the Tenth Amendment to the U.S. Constitution. Nullification is not a new idea, having come to life in the Kentucky and Virginia Resolutions of 1798 and again at various points in U.S. history. John Dinan, Contemporary Assertions of State Sovereignty and the Safeguards of American Federalism, 74 Alb. L. Rev. 1637, 1639-1640 (2011). However, nullification not only lacks any basis in the Constitution but also is directly contrary to the most basic principles of federal supremacy and judicial review contained in the Constitution. U.S. Const. art. VI, cl. 2; Marbury v. Madison, 1 Cranch 137, 177 (1803). It should be no surprise, then, that nullification has never been widely accepted as a solution to alleged unconstitutional federal actions, and it has been flatly rejected and repudiated by a unanimous U.S. Supreme Court. Cooper v. Aaron, 358 U.S. 1, 17 (1958). Though nullification may be an attractive option for those who feel the federal government has encroached too far on the powers of the states and the rights of citizens, it is not a constitutional remedy.
Past Assertions of the Nullification Doctrine
At best, the history of nullification can be characterized as a “checkered past.” Ryan Card, Note & Comment, Can States "Just Say No" to Federal Health Care Reform? The Constitutional and Political Implications of State Attempts to Nullify Federal Law, 2010 B.Y.U.L. Rev. 1795, 1798 (2010). Modern-day nullification supporters are quick to point out that James Madison and Thomas Jefferson are credited with first proposing a form of nullification in the Kentucky and Virginia Resolutions of 1798 as a means of opposing the suppressive Alien and Sedition Acts. Drew R, McCoy, The Last of the Fathers: James Madison & the Republican Legacy, 139 (1991). During the Nullification Crisis of the 1820s and 30s, John C. Calhoun and other South Carolinians claimed to take up Madison and Jefferson’s mantle as they pushed for nullification of federal tariffs on imported goods. McCoy 139-40. Although these nullifiers “posed as Madisonians and Jeffersonians of the first order,” James Madison, who was still living, disputed their claims. McCoy 140. “Madison intensely criticized and rejected Calhoun's theory of nullification,” saying that allowing a single state to nullify a federal law “would ‘altogether distract the Govt. of the Union & speedily put an end to the Union itself.’” Card, 2010 B.Y.U.L. Rev. 1795, 1810-1811. In both private and published letters, Madison argued that the nullifiers misunderstood the situation in 1798 and had perverted the principles he and Jefferson had expounded in the Resolutions three decades prior. McCoy 140-41. Madison maintained that the Resolutions had been a tool to galvanize public opinion and effect reform through the ballot box, “within the purview of the Constitution,” ultimately leading to Jefferson’s election as President in 1800. McCoy 142. According to Madison, it was not the goal of the Resolutions to “assert a right in the parties to the Constitution of the United States individually to annul within themselves acts of the Federal Government, or to withdraw from the Union.” McCoy 141.
Ironically, the doctrine of nullification has been employed by both sides of the issue of racial equality, at different points in history. Northern abolitionists used it to bolster their opposition to enforcement of the Fugitive Slave Act of 1850. Dinan, 74 Alb. L. Rev. 1637, 1640. When the U.S. Supreme Court overturned a Wisconsin Supreme Court’s ruling that the federal Fugitive Slave Act was unconstitutional, Ableman v. Booth, 62 U.S. 506 (1859), the Wisconsin legislature passed a resolution declaring, “Resolved, That this assumption of jurisdiction by the federal judiciary, in the said case, and without process, is an act of undelegated power, and therefore without authority, void, and of no force.” Herman V. Ames, State Documents on Federal Relations: The States and the United States, 148 (1906) (available online at http://www.constitution.org/hames/sdfr.htm). However, in the mid-1900s segregationists in southern states used nullification to rationalize opposition to desegregation. For instance, in order to prevent federally mandated integration, Arkansas passed an amendment to its state constitution to prohibit desegregation. Timothy S. Jost, Can the States Nullify Health Care Reform?, 362 N. Engl. J. Medicine 869, 870 (2010). Virginia even went so far as to shut down its public schools in one county. Jost, 362 N. Engl. J. Medicine at 871.
No Support for Nullification in the Constitution
The Tenth Amendment does not authorize nullification. It states: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The Supremacy Clause declares that federal laws are “the supreme Law of the Land…any Thing in the Constitution or Laws or any State to the Contrary notwithstanding.” U.S. Const. art. VI, cl. 2. Moreover, the Supremacy Clause declares that “the Judges in every State shall be bound thereby[.]” U.S. Const. art. VI, cl. 2. Moreover, the Constitution vests the “judicial Power of the United States…in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” U.S. Const. Art. III, § 1. This “Power shall extend to all cases…arising under this Constitution[.]”U.S. Const. Art. III, § 2; See also Marbury v. Madison, 1 Cranch 137, 177 (1803) (affirming the principle of judicial review).
Nullification Lacks Legitimacy and Has Been Rejected by the Supreme Court
Though written by revered Founding Fathers, Jefferson and Madison, the Kentucky and Virginia Resolutions earned only negative response from the North and gained no traction in the South. Richard Hofstadter, The Idea of a Party System: The Rise of Legitimate Opposition in the United States, 1780-1840 117-18 (1969). In fact, the Resolutions were never endorsed by another state, and were affirmatively rejected by ten states. Card, 2010 B.Y.U.L. Rev. 1795, 1809. As noted above, during the Nullification Crisis in South Carolina, Madison went to great lengths to distance himself from the nullifiers. The South Carolina movement failed to gain support from any other state. Card, 2010 B.Y.U.L. Rev. 1795, 1811. More than a century later, despite a handful of southern states that endorsed nullification as a response to federal desegregation orders, the legal community and courts thoroughly repudiated the doctrine. Card, 2010 B.Y.U.L. Rev. 1795, 1812; Cooper v. Aaron, 358 U.S. 1, 17 (1958). The unanimous Court in Cooper quoted former Chief Justice Marshall who, speaking for a previous unanimous Court, said “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . ." Cooper v. Aaron, 358 U.S. at 18 (quoting United States v. Peters, 5 Cranch 115, 136 (1809)). In other words, states cannot nullify federal laws.
While many Americans justifiably feel that the federal government has overstepped its constitutional bounds in recent years, the doctrine of nullification is not the answer. Nullification has a dubious historical track record, finds no support in the Constitution, is clearly rejected by several constitutional provisions, lacks any serious legitimacy as a legal doctrine, and has been repudiated by the Supreme Court. Reverence for the Constitution and the rule of law require rejection of the doctrine of nullification.