Is Nullification Constitutional?


Georgetown law professor Randy Barnett has a fascinating post examining the constitutional arguments for and against state nullification of federal law, inspired by his recent appearance on Judge Andrew Napolitano's Freedom Watch show with Nullification author Thomas Woods. Specifically, Barnett examines James Madison's defense of the Virginia Resolution against the Alien and Sedition Acts and finds it lacking as a piece of originalist evidence in favor of nullification:

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]f 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.

Read the whole thing here.