I want you to think of some congressional laws, Supreme Court decisions, and executive actions that make you think “Are they even allowed to do that?” Personally, I think of the enacted stimulus bills & federal gun regulations (and potential ones under our current administration), the Obergefell decision, and President Biden’s recent executive orders promoting gun control. Each of these instances of federal action—and many throughout our country’s history— seem to fall outside the purview of the US Constitution; they are unconstitutional. A more fundamental question is this: what do we do when the Constitution is treated as nothing more than mere parchment? There are certainly anti-liberty policies, decisions, and orders, yet they remain constitutional. But, when federal actions are unconstitutional, it holds a higher degree of illiberality. This encroachment upon liberty, federalism, and sovereignty must be met with what is called nullification.
What is nullification? Essentially, it is when a state within the union actively refuses to enforce a federal law, decision, order, or any federal action it deems to be not “in pursuance” of the Constitution (unconstitutional). It is traditionally understood that the states compose the “fourth branch” of the American government. This political doctrine of nullification gives teeth to the US Constitution when it matters most—a time where states & their citizens are threatened by the federal government. What are some examples of unconstitutional federal action? If Congress were to pass a law making Islam the official religion of the United States of America, it would be in violation of the 1st Amendment. Thus, states would have the opportunity and maybe, the duty to nullify this unconstitutional law. Another example is compelling states to permit homosexual marriages. Nothing in the Constitution explicitly allots to the federal government such a power. The argument could be made that the decision itself violates the 10th Amendment. It is a power reserved by the states since it has not been delegated to the federal government. So, the argument goes, states can nullify this Supreme Court decision if they so choose.
Nullification is more than a thought experiment. Since the start of the Biden administration, there has been a wave of nullification bills across many states with the intent of refusing to enforce any unconstitutional law, decision, or order. Recently, Missouri’s legislature passed HB 85, the Second Amendment Preservation Act, which, across the board, nullifies any “federal laws, rules, orders or other actions which restrict or prohibit the manufacture, ownership, and use of firearms, firearm accessories or ammunition exclusively in Missouri.” The bill states that such actions by the federal government are “unauthoritative, void, and of no force.” Texas and Wyoming’s Sovereignty Acts (HB 1215 & HB 256 respectively) are bills that explicitly acknowledge the right to nullify any unconstitutional federal action. This is only a glimpse into the nullification movement in the United States of America.
Nullification comes down to this: the protection of federalism, maintaining the prerogatives of states, and pursuing the US Constitution. The doctrine is intimately connected to the core principles of our Founding Era. This is true both constitutionally and historically. Nullification is most exemplified by two giants of the Southern tradition: Thomas Jefferson and John C. Calhoun. Jefferson introduced nullification in America with his 1798 Kentucky Resolution, a response to the Alien and Sedition Acts. The Kentucky Resolution states that “nullification… of all unauthorized acts… is the rightful remedy” for a state. For Jefferson, the two acts violated the 10th Amendment; no such powers were delegated to the federal government, therefore it was a power reserved by states. Another key example of nullification is by John C. Calhoun and South Carolina during the Nullification Crisis of 1832. In 1828, Calhoun wrote in his South Carolina Exposition and Protest, that because the power of protecting certain economic interests, like that of manufacturing, is not expressly delegated to Congress, “it seems to be expressly reserved to the States.” South Carolina declared the Tariff Acts of 1828 & 1832 to be “held utterly null and void.” In defiance of “King Andrew” Jackson and his federal tyranny, South Carolina won for states a compromise tariff bill – one that was constitutional.
Nullification is rooted in the US Constitution and in American history. It is what gives teeth to the Constitution when it needs them most: in defiance of federal tyranny. It is what preserves federalism, maintains the prerogatives of states, and confirms the federal government’s pursuance of the US Constitution. Hopefully, this nullification effort does not fade away, that its early and immediate success gives it life. States can and ought to fight against unconstitutional federal action. If we practice nullification, following in the Southern tradition of Thomas Jefferson, the author of the Declaration of Independence, and John C. Calhoun, whom even John F. Kennedy called a “forceful logician of state sovereignty,” then the United States of America will persevere.
The views expressed in this article are the opinion of the author and do not necessarily reflect those of Lone Conservative staff.