Is Nullification Unconstitutional?

Recently by Thomas E. Woods, Jr.: Nassim Taleb: Centralization a Negative, Not a Positive

Now on some level, we shouldn’t care: resisting violent people who claim the right to expropriate you and force you around is a natural right, and doesn’t rely on any parchment guarantee.

But I for one prefer to address my opponents from every angle I can, including their own.

These days we’re seeing a lot of newspaper columns condemning the idea of state nullification of unconstitutional federal laws. A common claim is that nullification is “unconstitutional.” I’ve addressed this claim in bits and pieces elsewhere, but I figured I’d write up one post I can use to counter this argument once and for all.

The most common claim, which one hears quite a bit from law professors (this is not meant as a compliment), is that the Supremacy Clause precludes nullification. “Federal law trumps state law” is the (rather inane) way we hear the principle expressed these days.

What the Supremacy Clause actually says is: u201CThis Constitution, and the Laws of the United States which shall be made in pursuance thereof…shall be the supreme law of the land.u201D

In other words, the standard law-school response deletes the most significant words of the whole clause. It’s safe to assume that Thomas Jefferson was not unaware of, and did not deny, the Supremacy Clause. His point was that only the Constitution and laws which shall be made in pursuance thereof shall be the supreme law of the land. Citing the Supremacy Clause merely begs the question. A nullifying state maintains that a given law is not u201Cin pursuance thereofu201D and therefore that the Supremacy Clause does not apply in the first place.

Such critics are expecting us to believe that the states would have ratified a Constitution with a Supremacy Clause that said, in effect, u201CThis Constitution, and the Laws of the United States which shall be made in pursuance thereof, plus any old laws we may choose to pass, whether constitutional or not, shall be the supreme law of the land.u201D

Hamilton himself explained at New York's ratifying convention that while on the one hand u201Cacts of the United States … will be absolutely obligatory as to all the proper objects and powers of the general government,u201D at the same time u201Cthe laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding.u201D In Federalist 33, Hamilton noted that the clause u201Cexpressly confines this supremacy to laws made pursuant to the Constitution.u201D

At North Carolina's ratifying convention, James Iredell told the delegates that when u201CCongress passes a law consistent with the Constitution, it is to be binding on the people. If Congress, under pretense of executing one power, should, in fact, usurp another, they will violate the Constitution.u201D In December 1787 Roger Sherman observed that an u201Cexcellency of the constitutionu201D was that u201Cwhen the government of the united States acts within its proper bounds it will be the interest of the legislatures of the particular States to Support it, but when it leaps over those bounds and interferes with the rights of the State governments they will be powerful enough to check it.u201D

Another argument against the constitutionality of nullification is that the Constitution nowhere mentions it.

This is an odd complaint, coming as it usually does from those who in any other circumstance do not seem especially concerned to find express constitutional sanction for particular government policies.

The mere fact that a state's reserved right to obstruct the enforcement of an unconstitutional law is not expressly stated in the Constitution does not mean the right does not exist. The Constitution is supposed to establish a federal government of enumerated powers, with the remainder reserved to the states or the people. Essentially nothing the states do is authorized in the federal Constitution, since enumerating the states' powers is not the purpose and is alien to the structure of that document.