Nullification Revisited

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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."

~ James Madison,
Federalist 45

Recent debates
over sweeping new federal laws have re-ignited old quarrels concerning
the proper constitutional role of the federal government and the
rights and reserved powers of the states. As a case-in-point, on
February 1, 2007, the Montana State House of Representatives unanimously
passed two bills condemning the federal REAL ID Act as an improper
use of federal legislative power. Both bills were designed to exempt
Montana from the Act; however, the bill introduced by Representative
Diane Rice of Harrison, Montana, went a step further, stipulating
that, "the legislature of the state of Montana hereby nullifies
the REAL ID Act of 2005, as it would apply in this state".

Read that again:
"The legislature of the state of Montana hereby nullifies the
REAL ID Act". Nullifies. Hmmm, there’s a word we haven’t seen
in awhile, and with good reason. You see, the word "nullify"
like its conceptual kissing cousins "secession," "states
rights," "delegated powers," and sometimes even "Constitution"
belongs to a special class of political four-letter words, so called
for the reason that they are verboten in polite conversation amongst
the political mainstream. In that parlance, they are akin to the
type of words that self-conscious adults tend to spell-out in front
of small children so as to avoid embarrassment, and are allowed
to be spoken only in a historical context, and only when accompanied
by an obviously derisive tone of voice.

For this reason
it’s understandable that the use of this little three-syllable word
"nullify" will make some people skittish. Like a hand-grenade,
the word is small but loaded with explosive potential, enough even
to cow some otherwise hardy and ruggedly individualistic Montanans.
According to, Hal Harper, an advisor to Montana
governor Brian Schweitzer, downplayed the significance of the word
‘nullify’ when commenting on Diane Rice’s bill, stating that it
"is simply a synonym for ‘repeal’ and carries little significance
beyond demanding that the federal government reverse its law."
Technically, what Harper says is true; the word "nullify"
can be used as a synonym for "repeal," although that is
not its primary meaning, and its use in this context is rather dubious.
To see what I mean, try using ‘repeals’ in place of ‘nullifies’
in the sentence that I quoted from Ms. Rice’s bill. When you do
this, you get: "the legislature of the state of Montana hereby
repeals the REAL ID Act of 2005." Nope, I’m sorry, Hal, but
this doesn’t work. Montana didn’t pass the REAL ID Act, so it can’t
very well repeal it; and nowhere in Ms. Rice’s bill do I see any
call for the federal government to "reverse its law".
The bill simply states that the REAL ID Act "is inimical to
the security and well-being of the people of Montana, will cause
unneeded expense and inconvenience to those people, and was adopted
by the U.S. congress in violation of the principles of federalism
contained in the 10th amendment to the U.S. constitution,"
and that the state "nullifies" it "as it would apply
in this state."

the rest of the article

25, 2009

Robert Hawes
is the author of One
Nation, Indivisible? A Study of Secession and the Constitution
He maintains a blog at

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