Can Federal Law Be Nullified By the States?

Originally published on the Bastrop GOP website

Nullification is usually associated with states’ rights by people who frown upon the overreach of the national government. We have had these debates for over 200 years and will probably continue to have the debates in the near future. However, nullification of federal laws under the U.S. Constitution is strictly prohibited under Article VI Section 2:

This Constitution, and the Law 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, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

The popularity of nullification has increased and decreased over time depending on the political climate. It is a result of people believing that the national government has abandoned the idea of the protection of natural rights and replaced it with protecting the power of the government. If you understand the original concept of the federal government, in which a limited government was split between the national and state level then you would also understand why the Founders were intent on this form of government.

What are the onerous things the federal government is doing that we would consider an overreach – health care, environmental issues, and overregulation are among those items that many Americans considered an overreach of the national government. The national government entering issues that they were never intended to solve gives a perception of the government picking winners or “groups” over the individual. So how do we solve these problems? Do we nullify laws or secede?

People continue to have this debate, and it is a vibrant one because they are seeing the same phenomenon across all issues – a tendency and inclination to expand the powers of the government. People want a restraint on the government but don’t seem to have an outlet to express this view because we view all three branches as colluding with each other. What happens is that we don’t as Americans promote lawlessness and we are not yet at the point of revolution like our Founders were, so the populace turns to the states and nullification. These are great conversations, but the idea of nullification is unconstitutional as there is no right in the U.S. Constitution for states or individuals to nullify federal law.

But that doesn’t mean that there are no other forms of resistance. That resistance being the judicial system and the election of representatives that will do what the people and the states want done but not secession. Remember we didn’t secede from Great Britain; we fought a revolution that was based on natural rights and a long train of abuse and usurpations. Revolution though needs to be the last step in the process because it cannot be for light and transient reasons unlike the Civil War where secession happened over a single issue - slavery.

Historically speaking, both Jefferson and Madison took up the issue of nullification through the Kentucky and Virginia Resolutions. Unlike the Kentucky resolution which used a radical approach, the Virginia Resolution used the idea that a plurality of states needs to show an unjustness of a law when determining that a law should not be followed. Both resolutions were written in direct opposition of the Alien and Sedition Act which was blatantly unconstitutional.

Fast forward to the march to the Civil War, Jefferson Davis disavowed nullification deeming it unconstitutional even though he argued in favor of secession which was also unconstitutional because secession is usually based on the premise of a light and transient cause verses a long train of usurpation and trampling of natural rights. In other words, you cannot stomp your feet, take your toys home, and say you don’t like something and are not going to follow it.

One of the reasons why nullification and secession took hold in the country during the years leading up to the Civil War is because of Senator John Calhoun and his speaking ability where he established a new basis for the founding of our country by rejecting the Federalist papers and Publius’s argument of an energetic but limited government. He disagreed with the idea that the government was established to protect natural rights and that no state is sacred. He is also separating the Declaration from the Constitution and saying the Constitution is a standalone document. This is an incorrect interpretation because you cannot have the Constitution without the Declaration. Calhoun believes there is a constitutional right to nullify and secede only because he is interpreting the Constitution to be a standalone document and a compact between the states. This is again incorrect because the Constitution is a compact between the people of the states and not the state governments. We know this because the preamble of the Constitution states “We the people” not “We the states of the United States.”

Calhoun makes his argument because of the Missouri Compact which was a compact between the states. Northerners are saying that Congress has the right to make laws outlawing slavery, but Southerners cite the Northwest Ordinance (ironically written by a slaveholder, Thomas Jefferson) stating that while it may allow Congress to legislate in the Northwest Terrority (as it was then known) it was only done by a compact of the states. It wasn’t an actual act of the National government. So while this instance goes directly to the concept of slavery, one could make the same argument today on a different issue and say a law originating in a way which it should under the Constitution is wrong because we disagree with it and therefore, we can nullify it.

So where does this argument come from? Does it come when there is a belief that all three branches have conspired to ignore the will of the people like what happened with the Alien and Sedition Act or when sections disagree on an issue such as slavery and what recourse do the people have when their rights are tramped on? The view is that there is no recourse through the judiciary because if all three branches have conspired then the Supreme Court cannot be the final arbitrator of the Constitution. However, this is where people are wrong because the Supreme Court is not the final arbitrator of the Constitution.

Where does that leave the people if they feel that the Judiciary is not an option then elections are the next option. Hamilton suggests in Federalist 1 that it is up to people to reflect and choose. He states:

"It has been frequently remarked, that it seems to have been reserved to the people of this country to decide, by their conduct and example, the important question, whether societies of men are really capable or not, of establishing good government from reflection and choice, or are they forever destined to depend, for their political constitutions, on accident and force."

 The people’s remedy to unjust laws is elections and we have seen this in our own lifetime. We have seen this with the healthcare debates in 2010 and most recently with the overreach of the Biden administration. Each time the people returned sanity to all three branches with the expectation that the people’s voice will finally be heard.

Therefore, if we want to have a sound government based on “We the People” then we must do our part to check on government overreach and it is not through nullification or secession (unless there is a long train of abuses and usurpations) it is through the judiciary and if they cannot be trusted then it is through the election process. Our Founders gave us the ability to take back our country and we can and have done it countless times in the past. It appears we have also done it as recently as the 2024 election and if that doesn’t work then we can do it again in two years if necessary.