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The Case Against Nullification

by @ 2:40 pm on July 9, 2010. Filed under History, Individual Liberty, U.S. Constitution

The once discredited idea of nullification, the idea that the individual states have the authority to nullify Federal laws inconsistent with the Constitution, is making a comeback thanks largely to a new book entitled Nullification: How to Resist Federal Tyranny in the 21st Century by Thomas Woods. Today, over at The Volokh Conspiracy, law professor Randy Barnett casts a very skeptical eye on Woods’ argument:

While there are some interesting structural arguments to be made on behalf of a power of nullification, of course it is not recognized by the text. And my doubts that it was thought by the founders to be a power reserved to the states is fueled by James Madison’s famed Report of 1800 in which he defended the Virginia Resolution objecting to the constitutionality of the Aliens and Sedition Act. I include a lengthy excerpt from Madison’s report in my casebook, including this telling passage near the end. (So readers have the full context, I include the paragraphs in full while putting in bold the more crucial language):

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

I realize this is only one statement by one founder. But if James Madison’s most famous defense of the earliest alleged act of state nullification expressly denies, or at minimum equivocates about whether, there is a literal power of nullification in states, then I would need to see pretty compelling evidence of original meaning to the contrary. And recall that no other state supported the Virginia and Kentucky resolutions. Indeed, Madison’s report was written to respond to criticisms lodged against the effort.

Indeed, if the man who pretty much wrote the Constitution and the Bill of Rights didn’t believe that there was a nullification power inherent in state authority, then that would seem to me to argue pretty succinctly that nullification is a bankrupt constitutional doctrine.

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