by Michael Maharrey

After contemplating our founding documents in depth, extensively researching the ratification debates and thoughtfully analyzing the philosophical foundation that our system of government rests upon, Idaho Assistant Chief Deputy Attorney General Briane Kane declared the principle of nullification unconstitutional and a threat to the United States.

Well, except for the contemplation, research and analysis part.

In actuality, Kane cozied up to the favorite straw-men those opposing nullification always seem to hang around with. You know – secession, the Civil War, racism.

Kane told a crowd at the ACLU Union of Idaho event that nullification would lead to states seceding from the Union. The Idaho Reporter reports he “mentioned the Civil War numerous times in his presentation on nullification.”

I wonder if Kane realizes that none other than the president of the Confederacy, Jefferson Davis, called nullification and secession “antagonistic principles.”

Nullification and secession, so often confounded, are indeed antagonistic principles. Nullification is a remedy which it is sought to apply within the Union, and against the agent of the States. It is only to be justified when the agent (the federal government) has violated his constitutional obligation, and a State, assuming to judge for itself, denies the right of the agent thus to act, and appeals to the other States of the Union for a decision; but when the States themselves, and when the people of the States, have so acted as to convince us that they will not regard our constitutional rights, then, and then for the first time, arises the doctrine of secession in its practical application.

In fact, throughout the history of the Republic, supporters have viewed nullification as a safeguard to preserve the Union by providing a check against federal overreach. Thomas Jefferson alludes to this in the first written expression of the principles of nullification, the Kentucky Resolutions of 1798.

…to assure them that this commonwealth continues in the same esteem of their friendship and union which it has manifested from that moment at which a common danger first suggested a common union: that it considers union, for specified national purposes, and particularly to those specified in their late federal compact, to be friendly, to the peace, happiness and prosperity of all the States: that faithful to that compact, according to the plain intent and meaning in which it was understood and acceded to by the several parties, it is sincerely anxious for its preservation: that it does also believe, that to take from the States all the powers of self-government and transfer them to a general and consolidated government, without regard to the special delegations and reservations solemnly agreed to in that compact, is not for the peace, happiness or prosperity of these States.

In 1833, Judge Abel P. Upshur wrote a pamphlet defending the Virginia Resolutions of 1798, which were written by James Madison and approved by the Virginia legislature shortly after passage of Jefferson’s Kentucky Resolutions. Together, the resolutions provide the framework for nullification – known as the Principles of ’98.

Upshur’s pamphlet stands as one of the most insightful and complete defenses of nullification ever written. Like Jefferson and Madison, he viewed nullification as a safeguard, a way to deal with federal overreach without resorting to revolution.

“If there be no such principle, is not the Federal Government as unlimited in its powers as any other Government, whatever be its form, whose encroachments upon the rights of the citizen can be repelled only by rebellion or other application of physical force?” he wrote.

Upshur went on to explain that nullification was a mechanism to check federal power, while remaining within the Union. He noted that James Madison called federal usurpation “the progress of evil” and insisted states were “duty bound” to resist it. Resistance does not include secession, which Upshur likened to running away.

In the first place, a State which withdraws from the Union beaks the Union. This is true, ex vi termini, and therefore, need not be proved. But I have already shown the Resolutions of 1798, proceed upon the idea, that the Union is to be preserved; and indeed, that is the main object of resistance, as therein contemplated. In this respect, therefore, secession is not a means of resistance within those resolutions.

In the second place, the resistance therein contemplated, must be such as will “arrest the progress of evil.” Will you be so obliging to tell me, sir, how a usurped power can be resisted, by giving way to it? In one way, indeed, the evil may be arrested by secession; the usurped power may be rendered nugatory, by withdrawing from its reach, all the subjects upon which it can exercise itself. I can scarcely imagine, however, that this tame and submissive idea, was entertained by the statesmen of 1798. It appears to my humble understanding, that secession, so far from being a form or resistance to usurped power, is the precise reverse; it is neither more nor less than a running away from the oppressor. And so far from “arresting the progress of evil,” it encourages and invites the evil, by removing all restraint from the wrong-doer. In this view, therefore, it is not within the resolutions of 1798.

Nullification protects people’s liberty, provides a remedy for unwarranted, unconstitutional federal overreach and serves as a safety valve, preserving the Union in its intended form.

Civil Wars happen when a powerful central government decides to get its way by force.

Kane goes on to assert that allowing states to nullify unconstitutional acts (which I might add are null and void by definition) creates a dangerous concentration of power.

No, really.

“If you advance the theory of nullification, you’ve created an unchecked power, because who is it to tell the state that they’re wrong on nullification? There isn’t anyone,”  Kane said.


So, let me wrap my head around this. Devolving power to 50 different state legislatures and allowing them to assert their authority to nullify unconstitutional acts creates unchecked power, but allowing five out of nine federal demi-gods  serving as the final arbiter somehow represents a bulwark against tyranny?

Yeah. And adding a bucket of water to a cup of bleach concentrates the bleach.

Kane nullifies his own concentrated power argument, complaining that the principle creates a “buffet of law.”

“You have zero uniformity,” he said.

Umm…isn’t that the point of federalism? That each state retains its sovereignty and makes its own decisions regarding, “all objects which, in the ordinary course of affairs, concern the lives, liberties and properties of the people, and the internal order, improvement and prosperity of the State?”* Besides, uniformity remains within the sphere of power properly granted to the federal government. Remember, we’re not talking about states arbitrarily ignoring any old law they want to. We are talking about nullifying federal acts clearly outside the power granted by the Constitution. If a rogue state were to simply try to ignore laws duly passed, other states would surely keep it in check. But when an actual constitutional violation occurs, other states will naturally join in defending their citizens.

I highly recommend Kane go back and actually do some contemplation, research and analysis. Perhaps he will come to see the importance of nullification and the check on real concentrated power it affords.

*See Federalist 45 -Madison

Mike Maharrey

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