What is State Nullification?

By Thomas E. Woods, Jr.
Capitol Weeky

For those unclear on the concept, what is the basic principle of Nullification?

Nullification is Thomas Jefferson’s idea, articulated most clearly in his Kentucky Resolutions of 1798, that if the federal government passes a law that reaches beyond the powers delegated by the states, the states should refuse to enforce it. Jefferson believed that if the federal government is allowed to hold a monopoly on determining what its powers are, we have no right to be surprised when it keeps discovering new ones. If they violate the Constitution, we are “duty bound to resist,” to quote James Madison’s Virginia Resolutions of 1798.

What are some examples of states using nullification and the tenth amendment historically?

Virginia and Kentucky raised the prospect of nullification against legislation in 1798 that made it a crime to criticize the President or Congress. They did so at a time when most judges and most states thought this was just fine and perfectly constitutional. New England states refused to comply with the execution of Jefferson’s embargo. In 1814, Daniel Webster urged the states to resist if military conscription were enacted. On numerous occasions, northern states did their best to obstruct the enforcement of the Fugitive Slave Act of 1850, aspects of which they considered unconstitutional notwithstanding the Constitution’s fugitive-slave clause. Wisconsin’s legislature passed a resolution in 1859 defending their inaction, and quoting Jefferson’s Kentucky Resolutions of 1798 word for word.

Have states used nullification more recently?

Issues relating to health care, gun ownership, and medical marijuana are perhaps the most obvious, with states either defying or prepared to defy unconstitutional federal interference in these areas. Medical marijuana is a particularly good example, since the Supreme Court ruled against it, the Justice Department is against it, and yet it still goes on. More than a dozen states allow it in direct defiance of the federal will. If the people are determined to resist a law they believe violates the Constitution and are prepared to stand up against it, the federal government may well have to back down – as it did on medical marijuana and on the REAL ID Act of 2005.

What are the historic connections between the ideology of the founding fathers and Nullification?

The War for Independence was fought over the principle of local self-government, so of course it would make no sense for Americans to turn around and establish a strong central government that would trample on local self-government. Indeed they did no such thing.

The Virginia ratifying convention of 1788 is instructive. Skeptics of the Constitution feared that it would produce a government without limits. Supporters of the Constitution assured them that the federal government would possess only those powers “expressly delegated” to it. George Nicholas, who would become the first attorney general of Kentucky, assured Virginians that if the federal government attempted to impose “any supplementary condition” upon them – that is, if it tried exercising a power beyond those expressly delegated to it – then Virginia would be “exonerated” from that measure. With this assurance Virginia barely voted to ratify the Constitution.

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