It is not often that I disagree with Mark Pulliam on matters related to the Constitution. And I don’t entirely disagree with his lead essay, “Nullification of the Constitution”—at least not with the bottom-line position on the flurry of state “nullification” provisions over the past few years. Though I have not followed them closely, they mostly seem performative and unserious. And I agree with him that any serious attempt at full-on nullification—a state actively preventing the enforcement of federal law—today would likely be impossible and counterproductive, given that the idea of states having their own obligations to their own people is now a foreign concept to contemporary political practice.

Where I disagree with Pulliam is in his account of the Constitution’s federalism and the history of early republic versions of nullification. As with my previous writing on the subject, I do not argue in absolute terms—that the original constitution definitively allowed for a state to nullify federal laws. But I will argue two points: First, given certain assumptions about the Constitution—ones that were common in the early republic—nullification was a perfectly plausible extrapolation from the nature of the federal union. Second, the various theories of nullification addressed a very real and serious question about ultimate authority in the constitutional system—a question that can’t be swept under the rug the way Pulliam wants to.

To properly assess early theories of nullification, one must first recognize that the precise contours of federalism were not stipulated by the Constitution’s text, and there was no consensus in the early republic about the precise character of the federal union. Given that fact, many of the arguments revolved around certain premises regarding what we might call the “small-c constitution”: the nature and character of the American political system writ large. (Many of John Marshall’s expansions of federal judicial power, for instance, relied on an unwritten premise that any functioning political system must have uniformity of law, which can only be achieved with hierarchical lines of authority leading to the central government’s Supreme Court.)

Arguments for nullification relied on a view of the small-c constitution which emphasized the preexistence of the states in relation to the federal government. Unlike the federal government, the states did not owe their existence as political communities to the Constitution; nor did state governments derive their authority from it. The Constitution recognized these facts and altered them only in specific and explicit ways—as indicated by the Tenth Amendment. Many citizens could therefore see the Constitution as a “compact” between thirteen political communities—one that continued a pre-existing federation, while establishing a somewhat more powerful government for that federation. The central government still possessed only the specific authority delegated to it by the agreement of the people of the different constituent states through ratification. And the state governments still had a basic obligation to protect their citizens from illegitimate power.

I won’t litigate the compact theory here for the sake of space, except to say that, in my own estimation, one can find more evidence for it in the history of constitution-building from 1776 to 1797 than one can find for rival interpretations, including those that are more widely accepted today. Indeed, even the most ardent nationalists at the time of ratification often recognized that they needed to speak the language of compact and federation.

For those who saw the federal union in terms of a compact, the question of policing those constitutional limitations was not just important, but absolutely essential to the whole political system. What happens when the people (and the various institutions of government) no longer agree on what was and what was not delegated? Pulliam begs the question, I believe, by pointing to the Supremacy Clause as forbidding any state nullification. That clause elevated “this Constitution” and “laws,” to a place of supremacy, but it did not elevate the national government above those of the states. Far from settling the matter, then, it merely introduces the question: what is “this Constitution” and what are valid “laws”?

Different theories of nullification took slightly different approaches, but they shared a sense that—given the nature of the constitution as a federation among distinct states—the power to police the limits of the central government could not be vested solely in the hands of the central government itself, thus making it a judge in its own case. To do so would be to replace the federation of states with the same kind of unlimited sovereign power that the King-in-Parliament had asserted against the states. It turned a federation effectively into a unitary system of government.

Jefferson’s Kentucky Resolutions looked to state legislatures to act essentially as guardians of their peoples’ rights and spokespersons for the states. That, of course, made the state legislature a judge in its own case, which is why he and Madison both thought an appeal to the rest of the states was also necessary. Calhoun’s iteration was more sophisticated, recognizing an equal power in both the federal and state governments to interpret the Constitution and act accordingly, which of course leads to an impasse. That impasse might prompt a compromise solution or prompt the federal government to reverse course. If not, however, the only way to seek an absolute and final determination was to approximate as best as possible the authority that authorized all national power to begin with—the people of the states who ratified it and who retained the authority to amend it. This came first by an appeal to the people of the objecting state in convention, and then by an appeal to the other states to call conventions and decide the question by the Constitution’s three-quarters amendment standard. It was an attempt to get as close as one could to the original consensus that gave rise to the Constitution—a process that could at least tell us whether such a consensus still exists today.

To be sure, Pulliam is right to say that nullification is not a “panacea,” and I don’t think many of its historic defenders presented it as such. Calhoun defended it this way in the “Fort Hill Address”:

That our system should afford, in [] extreme cases, an intermediate point between these dire alternatives [submission or revolution], by which the Government may be brought to a pause, and thereby an interval obtained to compromise differences, or, if impracticable, be compelled to submit the question to a constitutional adjustment, through an appeal to the [people of the] States themselves, is an evidence of its high wisdom: an element not, as is supposed by some, of weakness, but of strength; not of anarchy or revolution, but of peace and safety.

Something between revolution and submission. That’s not a panacea. And there would certainly be more practical difficulties with the process than Calhoun would have acknowledged, even had other states accepted its legitimacy. But it’s not a crazy or anarchical proposition—especially to those who understood the Constitution to be a federal compact. Nor is it a practice that, had it been accepted as part of the political framework, would have destroyed the Constitution, at least not any more than giving it over to a handful of judges.

A knee-jerk reaction against the very concept of nullification, moreover, leads Pulliam to endorse wrong-headed notions of the constitutional order and overlook the genuine problems with judicial supremacy.

Ultimately, Pulliam’s argument does not hang on any clear, large-C Constitutional meaning. Rather, it relies on a different notion of the small-c constitution. He presents the nation or union as eclipsing the states in status and importance such that the effectiveness and uniformity of the application of national power takes precedence over the independence of localities. “The issue, in a nutshell,” he argues, “is who has ultimate authority to determine the validity of federal laws. Dual sovereignty does not connote parity; the union, once formed, must be paramount.”

This emphasis on ultimate authority residing in a particular government institution reflects the preoccupation of the modern nation-state, but I do not think it is the language of the American constitutional tradition, which is well-versed in the notions of plural authority, limited and delegated power, and popular sovereignty. The notion of sovereignty that Calhoun appealed to was an underlying, often sleeping authority that delegated only certain powers to the institutions of government. None of those institutions could therefore be understood as an ultimate or sovereign authority. That does mean there will be uncertainty and tension surrounding the parameters of the Constitution’s meaning, which requires faith that self-governing people can resolve such tensions without superintending power. Maybe that’s wrong, but it’s certainly very American.

One does not need to subscribe to nullification (or to the compact theory as a matter of history) to see a serious problem with making a single institution of the national government the final, unquestionable authority over what the Constitution means. That great and awful authority dwarfs any power granted by the Constitution, for it contains within it the power to transform the Constitution. Pulliam breezily accepts the most extreme form of judicial supremacy in citing uncritically the Court’s opinion in Cooper v. Aaron. The case’s practical result was undoubtedly salutary, but wrapped in that righteous garb was the Warren Court’s judicial equivalent of “L’État, c’est moi”: The Court’s pronouncements have the same status as the Constitution itself. That is the nullification of the Constitution.

Pulliam is right, of course, that nullification was never accepted and that America has followed the path that he endorses. That fact, however, is at best a two-edged sword.

On the one hand, I agree that it creates a practically insurmountable objection to full-scale nullification today (though lesser forms of resistance, like refusal of enforcement, remain viable). For a state to try to actively prevent the enforcement of a national law today, it would face not only the same headwinds Virginia, Kentucky, and South Carolina faced in the early republic, but it would also have to contend with the ingrained belief in national and judicial supremacy, and with the damning moral example of its use in civil rights resistance. To overcome that sort of stacked deck, a state would have to marshal an incredible amount of political capital and have a near-unanimous people behind it, something unimaginable in today’s political climate. And it would have to do so in a time when the belief that America is a federation of self-governing states has been eclipsed. That is why I agree with Pulliam that the nullification legislation proliferating in red states today is unlikely to do much good in resisting federal overreach. It is probably just another form of political posturing that will likely be abandoned when challenged.

On the other hand, Pulliam must reckon with the results of the nationalist path America took. It is commonplace to observe that the American Constitution is characterized by its attempt to balance and check power. If one branch of the federal government had been left with no direct means of defense against the others, it would hardly be surprising to see the others run roughshod over its proper authority. Is it any different when it comes to the states? Is the expansion of the federal government over the past century, and all the dire political consequences that have come with it, unrelated to the fact that the states have no direct ability to defend their authority against the national government? If we vest ultimate authority in the institutions of government, should we be surprised when they do not limit themselves?

Again, one need not endorse nullification to recognize the problem of having a constitutional system that reserves a large sphere of power to the individual states but then relies solely on the good graces of the central government to protect that sphere. Perhaps the alternative would have been worse. Perhaps allowing for nullification would have taken us back to the supposed flaws of the Articles of Confederation, as Pulliam suggests. If that kind of weak, distant, and debt-ridden central government is worse than the kind of powerful, all-pervasive, and debt-ridden central government we have now, then one can make that case. But that is an argument about likely consequences and least-worst options, not one that appeals to national uniformity and centralized authority as a point of principle.

The window for making state nullification a part of the American political landscape closed long ago, and barring drastic shifts in public self-understanding, it does not seem likely to reopen any time soon. But that fact does not demonstrate the superiority of the nationalist, unitary alternative that we have followed. Nullification was one proposed response to a serious problem inherent to our written constitutional order. Rejecting that answer didn’t make the problem go away.

Any opinions expressed are the author’s and do not necessarily reflect those of Liberty Fund.