by Gennady Stolyarov II
The doctrine of nullification, i.e., the idea that states have the right to unilaterally render void an act of the federal government that they perceive to be contrary to the Constitution, finds its origins in the writings of Thomas Jefferson, most notably his 1798 Kentucky Resolutions, written to protest the Federalist Congress’s passage of the Alien and Sedition Acts.
Thomas Jefferson’s Kentucky Resolutions claim that the U. S. Constitution was a compact among the several states-whereby the states delegated certain limited powers to the U.S. government; any undelegated power exercised by the U. S. government is thus void.
Furthermore, the general government is not the final and authoritative judge of its own powers, since that would make the government’s discretion, and not the Constitution, the measure of those powers-but rather the parties to the contract, the states, have each an equal right to judge for themselves whether the Constitution has been violated as well as “the mode and measure of redress”-since there is no common judge of such matters among them.
Thus, every state can of its own authority nullify within its territory “all assumptions of power by others”-i.e., all perceived violations of the Constitution by the federal government.
The Kentucky Resolution uses the Tenth Amendment to justify a strict construction of the general government’s powers; any powers not expressly delegated to the U. S. government remain the province of the states or the people, and any exercise of those powers by the general government is void and can be struck down by the states on that basis.
Furthermore, Jefferson warns against construing the “necessary and proper” clause so broadly as to justify the assumption of undelegated powers by the general government; the intent of the clause was to only enable the execution of limited powers, not to indefinitely extend the general government’s scope. Otherwise, this part of the Constitution would be used “to destroy the whole residue of that instrument.”
Jefferson counsels the states to be vigilant against violations of the Constitutions and not hesitant to strike down unconstitutional measures by Congress or the President; he writes that “free government is founded in jealously and not in confidence” and therefore urges that “no more be heard of confidence in man, but bind him down from mischief by the chains of the Constitution.”
In other words, the states should not trust federal officials with non-constitutional powers simply because those particular federal officials might be trusted to use those powers benevolently; this kind of “confidence of man” leads to the destruction of free government.
Gennady Stolyarov II is an independent philosophical essayist, composer, amateur mathematician, contributor to Mises.org, editor-in-chief of The Rational Argumentator and The Progress of Liberty, and a high-ranking content producer on Associated Content.