Do the States Have the Power of Nullification?

In a recently published book, Nullification, author Tom Woods maintains that states have a power to nullify laws that exceed the powers of Congress to enact. This claim has a long history, some of it distinguished–as in the case of Wisconsin’s resistance to the Fugitive Slave Act of 1850–some of it not. But is the claim warranted? Last week, I was on Freedom Watch, Judge Andrew Napolitano’s new show on Fox Business Channel to discuss the matter. Judge Napolitano blurbed Woods’s book and the segment was devoted largely to him making his case. I got to make 2 statements to the contrary. (Interestingly, Monica Crowley, a conservative commentator billed by the intro as a nullification supporter, only maintained that states absolutely could challenge some unconstitutional laws in court–something no one denies. She either did not understand the nullification position or was diplomatically ducking the question.)

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.

With this as background, here is the clip of the segment highlighting Woods, with me chiming in near the end.

When evaluating claims of constitutionality, there are always three ways to examine the matter: (1) What does the Constitution say and mean? (2) What has the Supreme Court said and meant? and (3) Are there now five justices to sustain the claim? For example, while I do not believe the original meaning of the Commerce Clause includes the power to regulate the insurance business (Issue 1), the Supreme Court has allowed Congress this power since the 1940s (Issue 2) and there are unlikely to be five justices willing to reconsider that New Deal era precedent (Issue 3). Therefore legal challenges to the health insurance reform bill should not be based on this claim, and none is so far as I know.

The strongest claims of the opponents of “Obamacare” is that there is no precedent upholding the individual mandate and a mandate of this kind is an improper means of exercising a federal power. And by conditioning 100% of Medicaid funding on states either setting up insurance exchanges or greatly expanding Medicaid coverage, Congress is “coercing” the states (See South Dakota v Dole in which conditioning 5% of highway funds was deemed to be insufficiently coercive) and thereby unconstitutionally “commandeering” their legislative and executive branches (see New York v U.S. [no commandeering of state legislatures] & Printz v U.S. [no commandeering of state executives]). Will there be five votes for either of these claims? No one really knows for sure, which makes these viable constitutional claims that are also consistent with original meaning.

Political activists should not waste their precious energies on sketchy constitutional theories such as the assertion of a state power to nullify unconstitutional laws that, for better or worse, have long been rejected by the Supreme Court–as Wisconsin’s was in Ableman v. Booth–that five justices certainly would not today support, and that rest on dubious claims about original meaning.

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