State Nullification and the Supremacy Clause

Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:

State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.

What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.

Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states. The creature cannot tell the creator what the limits of its powers are. Only the states themselves have the final say over what their undefined and unenumerated powers are. And Madison said that if the central government should intrude into the state’s reserved powers, the states would have a “duty” to “interpose” and protect their citizens from harm.

Consequently, state nullification is not an act whereby a state refuses to comply with a federal law that it doesn’t like. Nullification is the claim that the supposed law is not a law at all because it is unconstitutional. To deny state nullification is to say the central government can define the limits of its own powers which makes our liberties a gift to us from the central government. That is what one is logically committed to who says the Supreme Court has the final say over what the reserved powers of the states are.

But who honestly believes that? The Constitution does not even remotely give the Supreme Court that power. And if an amendment to the Constitution were sent to the states for ratification stating that the Supreme Court has the final say over what the Constitution means, there is no chance it would be ratified by three quarters of the states. The people would not hand over the power to decide their fundamental liberties to nine unelected, politically well connected lawyers.

The Founders knew the central government would inevitably intrude into the reserved rights of the people, and they sought to prevent this with a system of checks and balances. The president can nullify a bill of Congress, but Congress by two thirds vote can nullify that act. The Supreme Court can nullify an act of Congress, or of the president, as unconstitutional. Congress can nullify the powers of the Court by restricting its appellate jurisdiction and by impeachment, and so on with many other nullifications.

We may call these horizontal nullifications operating between the departments of the central government. But what if, instead of checking each other, these departments began cooperating with each other to usurp power from the states to enhance central power and benefit the ruling class? To check this usurpation the horizontal checks are worthless. So the founders wisely recognized the need for a vertical check on central power arising from the people of the several states as sovereign parties to the constitutional compact. That vertical check is known as state interposition or nullification.  Jefferson considered this vertical check to be the most important of all. And it has been used throughout American history to protect the liberties of the people. New England states nullified the embargoes of Jefferson and Madison in 1808-09. They nullified the War of 1812, the draft, and did not participate. Later, Northern states nullified the fugitive slave laws. Orders of the Supreme Court were nullified by Wisconsin in 1859, and there are other cases.

The states, as sovereign parties to the constitutional compact, have the authority to interpose and to protect their citizens from unconstitutional acts of the central government. If you think Obamacare is bad, wait until you see what we are likely to confront in the future. Now is a historic moment for the states to step forth and erect a shield to protect their citizens from this latest of many intrusions into their reserved powers.We enjoy ample forms of constitutional nullification (both horizontal and vertical) to protect our liberties. But that does not mean they will be exercised. For instance, by a simple majority, Congress could, under Article III, nullify the Supreme Court’s control over school prayer, abortion, law enforcement, gun control, and a hundred other things by removing those topics from the Court’s appellate jurisdiction. But it has refused to exercise that power. The Republican Party controls the House which has exclusive control of the purse. The House by a simple majority could nullify Obamacare tomorrow by refusing to fund it, but it is not likely to do so. Instead the House cooperates in the expansion of central power. And so it goes.