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Thursday, December 17, 2009

Nullification: Friend of Liberty

By: Daryl Luna at:
In Defense of the Constitution

Editor's Preface: It is a real thrill to publish the following article here at THL. As events unfold in Washington, I have found my own thoughts turning more and more to nullification as a means to defend our liberties. Here, Daryl Luna, who blogs at In Defense of the Constitution, explains what nullification is and skillfully lays out the historical, Constitutional, and political case for nullification and the 10th Amendment assertion of states' rights against an ever-more-abusive Federal government. I'll let Daryl take it from here:

Thomas Jefferson once proclaimed when referring to the checking of federal power, “In questions of power, then, let no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”

In our current age it is rare to find anyone who reveres the rule of law, understands adherence to a standard, or seeks preservation of a covenant. Because of a deficiency in those willing to check federal power we have seen our Constitution and the liberty it protects trampled at every turn. Therefore, if freedom is to long endure and weather this current storm, we must fight back against unconstitutional encroachment. Nullification may be the most viable option to see this accomplished.

Nullification is the act of a state declaring federal legislation that is repugnant to the Constitution to be unconstitutional, thereby rendering it void and inoperative within the borders of that state. In other words, nullification is an act by the state to resist unconstitutional acts by the federal government and thus protect liberty. With the feds lacking legal authority for such legislation, a state has every right and duty to protect its citizens. In fact, this concept is at the heart of Federalism and American Constitutionalism.

The concept of nullification truly found its genesis in America after the passage of the grossly unconstitutional Alien and Sedition Acts under President John Adams. Seeking fidelity to the Constitution and wanting to protect the liberty of the citizenry, Thomas Jefferson and James Madison crafted the Kentucky and Virginia Resolutions (respectively), asserting that a state could judge the constitutional merits of federal legislation and—if found wanting—nullify the law.

Since that time nullification has been evoked a number of times with differing degrees of success. While it has throughout our history been admired by those who love liberty and have a strong view of states’ rights, statists of all sorts have long been harshly critical of the concept. Whether their motive be a desire for concentrated power or one’s own ambition exceeding the bounds of the Constitution, those who have made themselves enemies of nullification have often been enemies of liberty (see Abraham Lincoln and Andrew Jackson for proof). But not even all who favor strong, centralized power have been against nullification. Our very own “big government” Founder, Alexander Hamilton, legitimized the idea in Federalist #85 noting, “We may safely rely on the disposition of the state legislatures to erect barriers against the encroachments of the national authority.”

Nullification is definitely one such barrier, and it can be an effective one at that. For proof of this, remember how the Bush-era Real ID Act was gutted by state legislatures. But we must ask, “Is nullification a constitutionally permissible barrier for states to erect?” I would answer, “Absolutely.” In fact, nullification is more than merely permissible; it is necessary for liberty to prosper and our Constitution to be protected.

A general understanding of the Constitution makes a few things clear. First, as Madison noted in Federalist 45, "The 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." The Tenth Amendment is meant to assure this truth, and conversely, that legitimate federal power is indeed quite limited. Second, only the powers laid out in the Constitution are legitimate, which we can clearly see from looking to Article 6 paragraph 2 of the document:

“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” (emphasis added)

As can be seen, only laws made in pursuance of the Constitution are to be the supreme law of the land. It follows, therefore, that laws not made in pursuance of the Constitution are not the supreme law of the land. The Constitution sets the legal bounds in which government can operate. When our government acts outside these bounds it practices lawlessness; Alexander Hamilton called such unauthorized lawmaking an “act of usurpation.” Therefore, state governments have a duty to not adhere to these liberty-forsaking “acts of usurpation.” In fact, such state protection is one of the very reasons our Founders chose federalism for our governing system: the states could act as a check on federal actions.

Only legitimate acts should be treated legitimately. Federal acts which break the covenant with the people of the states and their government are and must be void. And it is up to the very states that entered into that covenant agreement (i.e. the Constitution) to protect the liberty of its citizenry through nullification.

As I have already mentioned nullification has spanned our Constitutional history in this nation from the founding to the present—the Real ID nullification being a good, recent example. Currently, “Tenth Amendment” legislation proposed (and in many cases passed) by state legislatures has been a shining example of states seeking to nullify federal firearms legislation within state lines. Moreover, some states have fought back against the federal drug war, seeking to allow the states to handle their internal matters.

Furthermore, plagued with the looming possibility of a national health insurance mandate, the state assembly of Missouri has introduced a bill which would prohibit the federal government from compelling national health coverage its citizens. These are all great examples of how liberty has been defended through nullification. If we had a proper view of nullification, things like the national healthcare plan would not scare us as greatly. Federal tyranny finds no roots when states stand for liberty and constitutional obedience.

I am convinced the issue of state sovereignty as laid out in the Constitution will be the battle line on which our cause for liberty will be won or lost. We cannot give up ground on the issue of states’ rights and we cannot expect to succeed in protecting our liberty from federal encroachment without states willing to nullify legislation that is repugnant to the constitution. It is not the job or the responsibility of the court to do so. It is up to you and me and who we choose to represent us.

We have the tools to call for an end to this usurpation of our rights and liberties. We can demand faithfulness to the constitution and nullify any law that fails in that regard.

If we elect governors and representatives at the state level who are willing to let the Constitution be their guide, stand up against a federal government that’s out of control, and invoke nullification as a legitimate means of protecting liberty and the Constitution meant to defend it, there may yet be hope. If we neglect to stop unconstitutional acts at the state level, our liberties will die at the hands of unchecked tyranny.

In Defense of the Constitution,

Daryl Luna

Note: For answers to some common criticisms and a more thorough study of nullification I recommend the articles found here and here.


  1. Jury nullification is another power that is not invoked nearly enough by the people of the United States to combat laws that clearly infringe upon human liberty. Unfortunately, many jurors are convinced by judges and prosecutors that they are not allowed to nullify a case and waive this right.

  2. Juries and states should be willing to courageously defy the authorities who seek to limit their legitimate Constitutional rights regardless of the consequences. Sadly, most of us have been turned into a nation of wimps unwilling to do anything confrontational that requires intestinal fortitude. The skinny little Chinaman standing in front of an advancing tank in Tiannamin Square years ago shames us all.

  3. d.eris (re: jury nullification) ABSOLUTELY!

    Nicely said, F M!

  4. Nullification is an interesting idea, but it is not likely to meet with success unless the states act en masse--in which case, it could hardly meet with failure.

    The question is how to get the states to see that acting in this manner is in their interests. They cannot even presently tear their faces away from the federal teat.

    There needs to be a process of strengthening the states generally, of feeding their egos, and giving them actual power to make their wills and desires known at the federal level. Repeal of the 17th amendment would be a great start. As the states become stronger, their threats will be more likely to be heeded by the federal government.

  5. You bring up an interesting point, but I'm not sure that I agree (which is not to say that I am sure that I disagree). I don't know that a single state (say Texas) acting with unity and resolve against Washington couldn't win its liberty back.