A Power Forgotten: Nullification; Yesterday, Today, and Tomorrow

A Michigan circuit court recently penned an opinion on the Michigan Medical Marijuana Act. The opinion bases its reasoning in the Constitution’s Supremacy Clause, which binds all courts to uphold Federal law. While the opinion is logically sound in the instance it addresses, it fails to consider a critical constitutional check on federal authority: state nullification.

Article 6 of the U.S. Constitution states that “this Constitution, and the Laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the constitution or laws of any state to the contrary notwithstanding.”

At first glance it appears that states and judges are bound in all instances by federal law. But further examination reveals an important distinction. Article 6 explicitly states that only federal laws made “in pursuance” of the Constitution may receive supremacy. The supremacy clause only holds in situations when federal law is constitutional. The 10th Amendment gives further credence to this distinction: “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Any and all actions outside the federal government’s constitutional jurisdiction are reserved to the states and the people.

These two constitutional provisions establish a necessary check (nullification) on federal power. The federal government is a binding collection of states which are themselves a collection of individuals. Thus, the federal government derives its power from the states and the consent of the governed, which can and must use this power to hold the federal government accountable. The 1798 Kentucky Resolution states “that the several states composing the United States of America are not united on the principle of unlimited submission to their general government . . . and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force.” The 1799 Virginia Resolution adds “that it views the powers of the federal government as resulting from the compact to which the states are parties . . . and that, in case of . . . dangerous exercise of other powers, not granted by the said compact, the states . .  have the right . . . to interpose . . for maintaining . . . the authorities, rights and liberties, appertaining to them.” The federal government resulted from a compact of the member states. They lend the federal government its powers and are the ultimate judge of the use of those powers. To give the federal government universal authority to judge the legality of its own laws is illogical and dangerous.

While much of current judicial opinion sides against state nullification, the movement is still afoot. After the Institute for Justice lost its case in Kelo v. City of New London, it turned to state courts and legislatures; a majority of which – including Michigan – took steps to amend their own eminent domain laws, nullifying the Supreme Court ruling. And if the Supreme Court upholds the constitutionality of the Patient Protection and Affordable Care Act, a similar movement is sure to begin.

Nullification is a necessary constitutional check on federal power. The states, not the federal government, are the final arbiters of federal power.


One thought on “A Power Forgotten: Nullification; Yesterday, Today, and Tomorrow

  1. You are a man of another era! Maybe a better era? It is indeed interesting to think of what the trajectory of our country would have looked like had the court not unanimously struck down nullification in Cooper v. Aaron. The possibility of Arkansas continuing to ignore the Brown v. Board of Education decision seemed to scare the court enough to gut the theory of state nullification in Cooper: “[the Brown decision…which in the case was a proxy for federal government laws] can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them.” The unanimous ruling in Cooper seems to have indefinitely shelved nullification as you suggest.

    Although, I must say, your mentioning of Kelo highlights an interesting potential manifestation of nullification theory. If states cannot directly nullify, it does seem that they frequently indirectly nullify court rulings (even if they aren’t supposed to). The D.C. v. Heller case was similar in that the city of D.C. mitigated much of the decision’s impact by passing a series of restrictive laws that still render handgun possession within city limits nearly impossible (I understand that DC is not technically a state, but the example remains relevant. And after Chicago v. McDonald there is expected to be a lot more lawsuits determining the constitutionality of other gun restrictions there). Maybe this could be called “nullification by another name.” Does nullification live???

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