Nullification consists of any state or local action rendering an unconstitutional act null, void or simply unenforceable within that state.
As Bryant points out, nullification was first formalized by James Madison and Thomas Jefferson in the Kentucky and Virginia Resolutions of 1798. In his original draft, Jefferson asserted “where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy.” Madison used different language, writing that “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil.”
But Madison actually provided the blueprint for nullification in Federalist 46, prior to ratification. He called opposition to unwarranted federal actions “powerful and at hand.” His blueprint includes refusing cooperation with federal officials and “legislative devices” blocking federal acts. Madison said even in a single state, these actions would create “impediments.” And when several states act against a federal measure, it “would present obstructions which the federal government would hardly be willing to encounter.”
Bryant asserts “Talk of nullifying unpopular federal laws has been heard for more than 200 years. At present, none have successfully been nullified.”
Not the case.
Northern states successfully thwarted draconian fugitive slave acts denying basic due process to any black person accused as a fugitive slave. Personal Liberty Laws primarily involved noncooperation – denying use of state or local facilities to slave catchers and punishing state officers who cooperated. Some guaranteed jury trials to accused fugitives. And a few states took things a step further. Vermont law subjected fugitive slave hunters to arrest.
These northern efforts defying an 1842 Supreme Court decision were so effective that several southern states cited northern nullification (and they used that word) in their declaration of causes for secession.
More recently, states have nullified federal marijuana prohibition. The battle against unconstitutional federal marijuana laws started when California voters approved legalization of medicinal cannabis. The Supreme Court ruled that the feds could indeed regulate six plants grown in your own back yard in 2005, but that didn’t stop the momentum. Today 21 states have ignored the SCOTUS opinion and legalized medical marijuana programs. Last November, Washington and Oregon voters took the next step, approving full legalization. Recently, the Department of Justice essentially announced, “You go right ahead and ignore federal ‘law.’ It’s the law! But we won’t enforce it.” While federal marijuana laws remain on the books with sporadic enforcement attempts, state actions have rendered them practically a dead letter.
And state refusal to implement the Real ID Act of 2005 successfully thwarted that federal program. Eight years later, it still has not gone into full effect. The feds have essentially given up trying.
Despite these successes, Bryant calls nullification “dangerous.”
His argument depends on conflating secession and nullification. Proponents of nullification have always viewed it as a “moderate middle road” between unlimited submission and outright rebellion. Nullification does not seek to destroy the union, but preserve it by restraining the federal government to its constitutionally delegate powers.
Nevertheless, Bryant links secession and nullification, and then cries “danger!”
“Four years after the Civil War began it ended with the defeat of the Confederacy, the destruction of slavery, secession and for all practical purposes, nullification.”
Civilized people should find the notion that war and violence “settles” political debate extremely offensive. Let’s say Bryant claims 2+2=5. I object; so he bludgeons me over the head until I submit and acknowledge 2+2 does indeed equal five. Does that really settle the issue of 2+2?
In fact, the Thirteenth Amendment ended slavery, not Lincoln’s cannons. And the bloodshed between 1860 and 1864 did not alter the constitutional limits on federal power, annul the Tenth Amendment or delegitimize nullification as a principle.
The people of the states undeniably created a federal government of limited powers, leaving all other authority to the states and the people. That being the case, some mechanism must exist to check federal power. A limited institution that defines the extent of its own limitations cannot exist.
James Madison draws the only logical conclusion.
“The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.”
Nullification does not pose a danger. The true danger lies in an unrestrained federal government doing whatever it pleases.
Nullification was and remains the rightful remedy.