State Nullification of Unconstitutional Federal Laws
Nullification is the processes by which a state declares an unconstitutional federal law null and void within its territory/jurisdiction. The first expression of these principles after ratification of the Constitution came in 1798 when Virginia and Kentucky protested the blatantly unconstitutional Alien and Sedition Acts. The Virginia and Kentucky Resolutions of 1798 eventually became known as the “Principles of ’98.”
States are final judge as to what the Constitution means
While the Supreme Court is the highest tribunal in the land, the sole and final authority to interpret the Constitution is not vested in a Supreme Court, inferior federal courts, or in any other branch of the federal government. The states, as parties to the agreement, have the last say as to whether the agreement has been violated. James Madison, a nationalist in his own right, made clear it was, “essential to the nature of compacts, that, where resort can be had to no tribunal superior to the authority of the parties, the parties themselves must be the rightful judges, in the last resort, whether the bargain made has been pursued or violated.” Madison continued, “[t]he states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated.”
There is nothing radical about nullification. The power for a state to declare a federal law null and void within its own territory is consistent with the logic of the Constitution. The states, which are the partners to the constitutional partnership agreement, are the principal sources of power and authority. To say the federal agent, or the Supreme Court in particular, is the final arbiter of any disputes between the states and the federal government would put a self-interested party in charge of deciding disputes. This would be absurd. It would be like putting an employee in charge of adjudicating the scope of his authority in a dispute between himself and his employer.
Federal Government and Advocates of Centralized Government Hate Nullification
Nationalists and the “liberal” elite hate the idea of nullification because it puts states back into a position of power to protect the people of the states against unconstitutional federal encroachments. Given that most federal laws are unconstitutional, nullification stands as a threat to the criminal racket in Washington DC. As such, nullification stands as a check against the absolute and unlimited power of the modern federal government.
While formal state nullification has not occurred in recent American history, nullification does have a proud and distinguished history. In addition, more informal modes of nullification are occurring today. Below are examples, both past and present, when nullification has been used to override unjust and unconstitutional federal laws.
State medical marijuana laws and ignoring enforcement of federal drug/marijuana laws.
States refusing to enforce the REAL ID Act of 2005 (requiring national identification cards for Americans)
State nullification of federal gun laws and registration requirements
State anti-drone legislation
State anti-TSA (airport frisking) legislation
States such as Arizona and Utah making gold and silver legal tender.
For more on state nullification and modern nullification movements, see the Tenth Amendment Center.