Citizen Perspective: States have a Constitutional Right to Nullify Unconstitutional Federal Mandates:

Nullification: the states’ crisis response against an out of control federal government

February 23, 2011

NullificationNullification, or the refusal on the part of States to obey unconstitutional laws passed by the federal government, is a topic with two extremes. Those in favor of big uncontrollable government scoff as if the practice were nothing more than school boy rebellion while States concerned about the bankrupting consequences of a spend-thrift government are doing more than talking; they are making their own plans to simply say, "No," to government overreach.

Nullification is not theory, but rather a doctrine of law. It has been used in America since the colonial period - the colonies refusing to pay taxes to King George III when they were not allowed a voice in the decision (no taxation without representation).

Nullification was used in the early days of our republic when the federal government started over-stepping its authority (the Virginia and Kentucky resolutions of 1798, President Jefferson’s foreign trade embargo of 1807-09, etc.).

Today’s opponents of nullification, and states’ rights, like to call supporters racists who want to go back to slavery and Jim Crow. They should read their history. Nullification was used by Northern non-slave states as often as by slave-holding states. In fact, it was used by several non-slave states to prevent the return of runaway slaves to their masters. These states were refusing to obey the constitution itself - a rare case of morality over politics. The concept of nullification is about freedom of citizens from government slavery - personal freedom vs. collective subjugation.    

Thus, we have the historical precedent of states declaring federal laws, even Supreme Court decisions, null and void – declaring them either unconstitutional, immoral, or an undue burden on the states and/or their citizens. The states have won many of these battles. After all, it was the states that created the federal government, including the Supreme Court – so why can’t the states override a federal law, or even a Supreme Court decision? Is the central government, including the Supreme Court, above being held accountable to the states and citizens who created them?

As part of the current nullification movement, over forty states have re-declared their sovereignty, and have started exercising their rights. My state of South Carolina amends its constitution via popular vote. In 2010, two of four amendments on the ballot were:

  1. Right to hunt: a preemptive strike against potential gun bans and bans against killing Bambi's (which we’re overrun with).

  2. Secret union ballot: Another preemptive strike against card check. If unions were all that great, then they wouldn't need this method of coercion.

They both passed by great margins although, in the secret union ballot, Obama has threatened to sue South Carolina and several other states that passed similar measuresin support of his union buddies. These are simple examples of how states have stood up to the would-be central "master".

As mentioned before, states have successfully resisted not only unconstitutional laws, but even constitutional ones that were deemed immoral or an undue burden on their citizens.

Let’s explore further: let’s say that we all agree that a new federal law is completely constitutional—but that law would create an undue financial burden on the states and/or their citizens. Then don’t the states have a responsibility to their citizens to declare such a law null and void? Nullification is a valid response in situations such as this, not just in questions of constitutionality, but in questions of morality, financial burden, or logic.

As to logic, let’s say that the states agree with a law in principle, and that this law would not incur an undue burden—but there is a more logical alternative that would achieve the same totally constitutional goal at a cost that would be even less burdensome. Do the states not have a valid case to nullify the law and choose instead to pursue the other course that is more beneficial to their citizens and/or their state budgets?

And what if a state, or states, determines that there is no need for the law in the first place—it would serve no good purpose? Are they obligated to abide by an unnecessary law, especially if they disagree with it? For instance—I don’t think I, a citizen of S.C., should help pay to restore a mule barn in Ohio. Can you spell P-O-R-K?

And what about regulations created by unelected bureaucrats, that by congress’ inaction to the contrary, automatically become law? These are blatantly unconstitutional. Congress is a fiduciary organization to which the voters give authority, via the constitution, to pass laws—not to pass this responsibility to unelected bureaucrats who report only to the President and his czars.

Should the federal government, especially the aforementioned bureaucrats, be able to dictate how the states and citizens do their business, or should its role be limited to its Constitutional limits? The Constitution, after all, was a compact amongst independent sovereign states. Do we not still have that same sovereign status? If not, by what decree or amendment to the original compact? 

In 1798 Virginia and Kentucky resisted the central government’s attempt at excessive control over the states. These resolutions were used by other states in subsequent years as precedent to resist usurpations that affected their citizens. Note that individual states acted in the interest of their own respective citizens—they did not need a majority of states, or a constitutional convention, to act. As a sovereign entity, each state has a right, and a responsibility, to protect its own citizens, not only from foreign invaders, but also from domination by the central government and its bureaucrats.

It may surprise people to know that in recent years nullification has been successfully used against the Federal Government, not by the conservatives or tea party groups, but by some whom average Americans would consider the most liberal. In a recent article, Michael Bolden, founder of the Tenth Amendment Center, points out that in California the state openly defied the Supreme Court’s decision that the State could not grow or dispense medical marijuana. The Feds did not descend on the state and now 15 other states sell medical marijuana within their borders. California has also defied the Federal government in regard to sanctuary cities, but no immigration authorities have invaded the state, nor has there been a threat of a cut off of highway funding, etc. Nullification is, thus, simply refusing to obey a federal mandate and thereby rendering it irrelevant. When the states stand up, the federal government has a history of backing down.  

And what is the proper role, and size, of government? Thomas Paine said it best: “That government is best which governs least.” One study concluded that less than 15% of GDP is the optimum federal spending—enough to supply the needs of the citizens, not enough to build a bloated empire. Today the government is spending well over 50% of GDP and climbingsurely a situation for crisi economica if there ever was one.

Since our elected officials of late have chosen to flaunt their unwarranted authority, ignore our pleas and petitions, and ridicule us for daring to ask them to do their jobs—it’s past time that we put them in their places and let them know that we are their bosses, not the other way around. Nullification is the only remaining tool left to us.
So what are some burdens that should be considered for nullification?


“Nullification: How to Resist Federal Tyranny in the 21st Century” by Thomas E. Woods Jr.
“Red State Uprising: How to Take Back America” by Erick Erickson and Lewis K. Uhler

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