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Is Nullification Constitutional?

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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.

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  1. Two important points

    1. The 10th Amendment is very specific in that it reserves to the states and to the people those powers not granted to the Federal authorities.

    2. An unconstitional law is not a law at all.

    1. Pretty much what I was going to say. The federal government is one of enumerated and limited powers. Those powers are the ones it has, and none beyond them. All other power is reserved the states and the people. A law exceeding those powers is ultra vires.

    2. But it is important as a libertarian activist that you not spread or push these ideas too far. You might not get invited to the right parties, or people might confuse you with a Glenn Beck supportin tea bagger.

      Actually, it was nice to see an objection that didn’t seem to contain any name zombie-style name calling at all. Just wish it wasn’t from a supposed libertarian.

      1. “or people might confuse you with a Glenn Beck supportin tea bagger”

        Are you saying if I am libertarian I must hate Glenn Beck and the Tea Party movement? Because I am a libertarian and am a Glenn Beck Insider and have been to Tea Party protests. What does that make me?

        1. No. I’m saying Barnett should worry more about freedom and less about being embarrassed by those he probably considers rubes. It’s pretty shitty of me really, I don’t know how cosmotarian Barnett really is, so I may be unfairly snarking him. But if a left winger pulled the same weak ass argument he was advancing, I wouldn’t even take it seriously, I’d just assume they were arguing in bad faith.

  2. Now I am confused. If it is not a federal power it is supposed to be a state or “people” power and those do not need to be listed anyplace. What else is going on here that I am missing?

    1. “What else is going on here that I am missing?”

      Statists are trying to justify tyranny in any way the can?

    2. You’re not missing it – you’ve got it neatly summed up.

      Of course the problem is, the statists can’t seem to fathom or handle that pretty simple concept.

  3. He may be right, but that doesn’t make him any less of a pussy.

  4. I don’t think the states can nullify the exercise by the federal government of one of the federal government’s enumerated powers.

    Of course, the ultra vires exercise of power by the federal government is unconstitutional, and should be void ab initio, subject to nullification by either the courts or the states. I suppose nullification by the states could be an exercise of powers reserved under the 10th Amendment.

  5. Whether it is “Constitutional” kind of misses the point. Under the Constitution, the Federal Government is prohibited from passing the kind of law that would be subject to nullification in the first place. So once nullification is on the table, we are already operating in an extra-constitutional space. It’s unlikely the founders considered nullification because to do so would require them to envision a Federal Congress that passes blatantly unconstitutional laws and a President and Congress that backs them up. In other words, for they’d have to contemplate things working out just like the Anti-Federalists claimed they would.

    1. Think of nullification as a state legislature doing everything it can to declare a federal statute an unconstitutional exercise of power.

      All a legislature can do is pass laws (in this case, a law nullifying the ultra vires federal law) that effect only that state.

      Because the federal law is an unconstitutional exercise of a power not delegated to the national government, the power to legislate on that topic is reserved to the states under the 10th Amendment, so the state nullification law is a law that is permitted by the Constitution.

      A court hearing a challenge should rule (1) The state law is a legitimate exercise of 10th Amendment powers, because (2) The federal law is not the exercise of an enumerated power. Oh, and by the way, (2) means the federal law is void as a matter of Constitutional law, as well as nullified by the state law.

    2. It’s unlikely the founders considered nullification because to do so would require them to envision a Federal Congress that passes blatantly unconstitutional laws and a President and Congress that backs them up. In other words, for they’d have to contemplate things working out just like the Anti-Federalists claimed they would.

      …which it has.

      1. Exactly. Which is why this constitutional analysis of nullification misses the point. A Supreme Court that was keen on nullification would have nullified all these unconstitutional statutes themselves. Nullification is the step taken after the courts have already failed, so it is pointless to opine on it’s “constitutionality”. Nullification has self executing constitutionality since it is a unilateral undertaking. So long as the state doing the nullifying believes nullification is constitutional, then it is.

        1. Nullification is the step taken after the courts have already failed, so it is pointless to opine on it’s “constitutionality”.

          That is extremely well put. And something about it seems chilling to me, because, yes, the courts have failed utterly, and my children will probably have to throw off and kill the beast that the Federal government has become.

  6. Okay, first, the judicial power, in all cases arising under the Constitution or the laws of the United States, is vested in the Supreme Court and inferior Federal courts, per Article III. So there is no retained right for the states to formally adjudicate whether a law is Constitutional or not; such power is delegated to a specific branch of the Federal Government.

    Second, under the Supremacy Clause, nothing in the laws of the states can negate a Constitutional law.

    Third, no unconstitutional law is actually of any force.

    So, when a state attempts to “nullify” a law, what is it doing? It can’t be formally judging the law to be unconstitutional; that power belongs to the courts. It can’t be negating a valid law; the Supremacy Clause prohibits it. It can’t be negating an unconstitutional law; an unconstitutional law is already of no force. So, in practice, what effect is there?

    At most, the legislature can be expressing its opinion that the law is unconstitutional. Which is perfectly fine, but, not actually very important. State legislatures pass non-binding resolutions all the time.

    1. Then why was there a hissy fit thrown ever time a state has done it?

    2. The Constitution is a contract between the states and the Federal Government. It has provisions which strictly limit the powers of the Federal Government. Under contract law, if one party attempts to assert rights or privileges not subject to the agreement, the other party has no obligation to respect those claims. That’s the essence of nullification. Also, nullification is merely the first step. It invalidates the law. But the Feds might try to press on anyway. That’s where interposition comes in. After a state declares, for example, the Drug War, nullified, they’d then use interposition to expel all DEA agents and to kill or jail any DEA agents who try to sneak back in.

      1. No, the Constitution is not a contract between the states and the Federal Government; the Federal Government is a creation of the Constitution, not a party to it. The Constitution is a compact between the states. See Article VII. And this contract between the various states explicitly specifies who gets to rule on disputes over its meaning. See Article III.

        The use of armed force to unilaterally impose an interpretation of a contract in defiance of expressly established resolution mechanisms is not, by any stretch of the imagination, a right or power of any person or entity. It is nothing more than crime.

        1. The states met together to form the Constitution, which is the rule book of the federal government. The federal government is a creation of the states. Article 7 does nothing to counter the contract argument.

          Besides; the argument over whether nullification is unconstitutional misses the point. The US Constitution itself was ratified illegally.

        2. The Constitution, at best, is a contract between the political representatives of the States (in their political capacities). Article III provides that “the judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution…[including] to Controversies to which the United States shall be a Party.”

          There is no mention of exclusive or supreme jurisdiction of the “judicial Power” there or elsewhere.

          The “supremacy” clause provides: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof…shall be the supreme Law of the Land.”

          Note the use of the term “Law.” At the time of ratification of the Constitution, only the uncodified “common law” would have been considered law by the state courts. The mere interpretation of legislation by a court, or its constitution, was not “Law”. Indeed, the law was rather discovered by the courts, not made by judicial fiat.

          Conclusion: The supremacy clause does not apply to the decisions of the federal judicial power regarding the wrongful interpretation of legislation or the Constitution, as a wrongful interpretation is not “law.” There is no other clause or provision in the Constitution that grants exclusive or supreme jurisdiction of the judicial power over the individual States regarding such interpretive decisions, thus allowing for nullification.

          NB: Upon the adopting of the 10th Amendment, it became even clearer that the States retain the power not granted to the federal government, which thus would include the power to nullify erroneus decisions of the federal judicial power.

    3. It can’t be negating a valid law; the Supremacy Clause prohibits it.

      True, which is why I don’t think the states can nullify a legitimate exercise of enumerated powers.

      It can’t be negating an unconstitutional law; an unconstitutional law is already of no force.

      Ah, but here’s the rub: Practically speaking, an unconstitutional law is in effect until someone with authority says it is not.

      Within any given state, the state legislature has the authority to pass laws within its 10th Amendment powers. With respect to the exercise of powers not enumerated to the federal government, those state laws are valid laws.

      So, you have a federal law that is ultra vires but is nonetheless still on the books until stricken off (which is what judicial review does, in effect). And you have a state law that is within the state’s powers under the Constitution that offsets that law unless and until the federal law is overturned judicially.

      1. No. The power to judge a law in violation of the Constitution is vested in Article III courts, and therefore not an Article 10 power. Regardless of the actual constitutionality of the law, the state cannot render a binding judgment as to the validity, any more than it can, by an act of legislature, make the binding judgment that an individual has committed a violation of Federal law.

        1. The positivist side vs. the pro-nullification side are never going to see eye-to-eye. We’ll point out that it makes no sense for only the federal government to determine the constitutionality of the law as this will inevitably lead to an expansion of federal power. We also might bring up the fact that nullification as a remedy is better than the more extreme alternative. But your argument more else consists of either ‘the courts have said X’ or say that the law says so. An argument based on logic will never mesh with an argument based on simple authority. Your parents probably said ‘Because I said so a lot’ and you probably obeyed them. That works for kids, not adults.

  7. DRM, the way to fit nullification into your analysis is to imagine that when the State ‘nullifies’ a ‘law.’ it is RECOGNIZING it as unconstitutional, and hence not a law at all.

  8. God, I fucking hate Reason.

    1. I am glad to know you are willing to engage in an intelligent debate on the issues of the day 🙂

      1. Glad I can count on the shills at Reason to take the Regime’s side.

        It’s clear the framers were for nullification. How else do the states keep the federal government–which they created–in check?

        1. I agree that the framers were for nullification. Now, how has Reason taken the Regime’s side.

  9. States have police powers. And, they are required by the 14th amendment to provide everyone with equal protection of its laws.

    Let’s say a state, through its own independent judgment, decides that a federal law is unconstitutional, and therefore not a law at all. Let’s further say that Federal agents come to take a person into custody pursuant to the non-existent law. Well, that’s kidnapping, plain and simple, and the state has a duty to equally protect that person from kidnapping, including arresting and trying the kidnappers.

    That would be nullification with balls.

    1. “Well, that’s kidnapping, plain and simple, and the state has a duty to equally protect that person from kidnapping, including arresting and trying the kidnappers.”

      I would love to see a state do that.

  10. A couple quick points:

    * James Madison believed that state nullification was only proper when normal constitutional mechanisms broke down. In Madison’s time, they never did. Today, we hav rampant violations of the Constitution and madison would endorse nullificatio to fight it.

    * a state legislature that makes a finding of unconstitutionality can just do it if the law is not constitutional.

  11. I wonder how long it took the Reason staff to find this. Once again, they show precisely how Libertarian they are when it comes to the centralization of power, namely, not at all.

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