Tocqueville gives us good reasons to think that constitutional amendment is the best path to avoiding judicial supremacy.
The nation is deeply polarized, with enormous political differences among the states and their respective citizens. In the November 2020 election, California voters favored the Biden-Harris ticket over President Donald Trump by more than five million votes and a margin of 29 points. In other states, voters preferred Trump over Biden-Harris by a similarly lopsided margin. In Tennessee, where I live, Trump won over 60 percent of the vote, and in my home county the split was 71-27 percent. Despite the opposition of over 74 million voters, constituting an electoral majority of 25 states, in winner-takes-all fashion the Biden-Harris administration is pursuing an unprecedented agenda of far-left policies, including H.R. 1, the PRO Act, the Equality Act, multi-trillion-dollar spending programs, the Green New Deal, statehood for the District of Columbia, and many controversial executive orders. These proposals have galvanized conservative resistance, often under the banner of the Tenth Amendment.
In our constitutional system, the federal government is supposed to exercise only the limited powers expressly granted to it, and the states are supposed to retain all powers not so expressly delegated. The hallmark of a federal system is that the states continue to exist as meaningful political units—sovereign entities, albeit part of the Union—not as mere appendages of the federal Leviathan. A majority of states (27) have Republican governors. Federal policies emanating from the nation’s capital are anathema to many citizens. Accordingly, some conservatives and libertarians in red states, viewing the unfolding Biden-Harris agenda with alarm, have begun talking about “nullification.” Legislation embracing various forms of nullification has been proposed in Republican enclaves such as Montana, Wyoming, South Dakota, Texas, and Oklahoma.
What exactly does this mean, and is it a feasible option?
A Checkered History
“Nullification” is a term that has been used throughout the life of the Republic in a variety of ways. Writing anonymously, Thomas Jefferson and James Madison advocated the doctrine of nullification in the Virginia and Kentucky Resolutions in 1798, enacted by those states in opposition to the Federalist Party’s Alien and Sedition Acts. The resolutions, although not identical, both affirmed that states retain authority under the Constitution to determine the validity of federal legislation and to declare laws unconstitutional. The resolutions were strongly-worded protests, and called for other states to join in opposition to the objectionable federal law. While the resolutions condemned the Acts as unconstitutional, they did not expressly threaten non-compliance or resistance, and disavowed any move toward secession. The resolutions ultimately were calls for Congress to repeal the Alien and Sedition Acts.
The legislatures of Virginia and Kentucky implicitly contended that the Supremacy Clause in Art. VI only applies to federal laws made “in Pursuance” of the Constitution, and that states could decide whether laws are unconstitutional. The Constitution is a compact, the resolutions emphasized, that states had entered into only based on the limited powers granted to the federal government and the rights retained by the states. Obliterating those limits would constitute “tyranny,” in Jefferson’s ghost-written (and somewhat florid) words for the Kentucky Resolution. Virginia, in contrast, averred that an unlimited federal government would “transform the present republican system of the United States into an absolute, or at best, a mixed monarchy.” Yet, unless states affirmatively defy an objectionable federal law, protests in the name of nullification are mere words.
Despite the resolutions’ lack of teeth, nullification was a bold position in 1798, when the structure of the Republic remained an open question. Given our intervening history, it seems even more tenuous in 2021.
The repeal of the Alien and Sedition Acts following Jefferson’s election in 1800 obviated a nullification crisis, but the issue of nullification re-surfaced in 1832-33 during the presidency of Andrew Jackson when the state of South Carolina purported to declare “null and void” a federal tariff law (the Tariffs of 1828 and 1832) it found objectionable. Unlike the Virginia and Kentucky Resolutions, South Carolina’s Ordinance of Nullification threatened secession if the federal government attempted to collect tariff duties by force. Jackson, never one to back away from a fight, warned South Carolina that “disunion by armed force is treason,” and prepared to use military force against South Carolina if necessary. Jackson told a congressman from the Palmetto State that “if a single drop of blood shall be shed there in opposition to the laws of the United States, I will hang the first man I can lay my hand on engaged in such treasonable conduct, upon the first tree I can reach.”
Perhaps mindful of Jackson’s martial prowess, and with the inducement of a tariff-reduction compromise brokered by Sen. Henry Clay, South Carolina blinked and rescinded the nullification ordinance.
The Civil War was fought over secession, not nullification, and offers little useful guidance on the doctrinal question of states’ authority to declare federal laws unconstitutional (while providing plenty on the question of secession). Nor are any of the minor skirmishes over nullification in the 19th century particularly dispositive.
The Framers never squarely addressed nullification. In Federalist No. 46, Madison suggested that the dual sovereignty of the states would serve as a check on federal authority exceeding its proper bounds:
[S]hould an unwarrantable measure of the federal government be unpopular in particular States, which would seldom fail to be the case, or even a warrantable measure be so, which may sometimes be the case, the means of opposition to it are powerful and at hand. The disquietude of the people; their repugnance and, perhaps, refusal to co-operate with the officers of the Union; the frowns of the executive magistracy of the State; the embarrassments created by legislative devices, which would often be added on such occasions, would oppose, in any State, difficulties not to be despised; would form, in a large State, very serious impediments; and where the sentiments of several adjoining States happened to be in unison, would present obstructions which the federal government would hardly be willing to encounter. . . . [The federal government] will not possess the confidence of the people, and its schemes of usurpation will be easily defeated by the State governments, who will be supported by the people….[T]he powers proposed to be lodged in the federal government are as little formidable to those reserved to the individual States, as they are indispensably necessary to accomplish the purposes of the Union; and that all those alarms which have been sounded, of a meditated and consequential annihilation of the State governments, must, on the most favorable interpretation, be ascribed to the chimerical fears of the authors of them. (Emphasis added)
Proponents of nullification sometimes ascribe to this essay support for their doctrine as a check on federal overreaching, but Madison did not go that far. The essence of Federalist No. 46 is pro-ratification “happy talk” directed at suspicious states, placating them with assurances that, as a practical matter, federal usurpation—the “annihilation” of state governments—was not possible. In this, and many other respects, the skeptical and pessimistic Anti-Federalists were prescient.
What Madison wrote in the Federalist is not controlling in any event. Does the Constitution—either in its text or as interpreted by the Supreme Court—allow states unilaterally to disregard federal law on the grounds that they believe the law is unconstitutional? The doctrine of judicial review and the Court’s later assertion of judicial supremacy in Cooper v. Aaron (1958) complicate the analysis, at least if “nullification” is used in the sense of defying or ignoring federal law. Cooper v. Aaron dealt with a form of nullification—the massive resistance to the desegregation ordered by Brown v. Board of Education (1954)—and unambiguously rejected it. The Court unanimously held that
Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3 “to support this Constitution.” . . . No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery.” (Emphasis added)
In short, the Constitution means what the Supreme Court says it means, and the decision of an unelected five-person majority is final and binding on the rest of the nation—just as the Anti-Federalists predicted. Unlike the weak alliance contemplated by the Articles of Confederation, under the Constitution unanimity of the states is not required for federal action.
Clearly, then, under the authority of Cooper v. Aaron individual states cannot simply defy federal law, or even the Supreme Court’s interpretation of the Constitution, no matter how sincere—or valid—their objection to it. If a state believes that a federal statute or executive order violates the Constitution, the remedy is to challenge its constitutionality in court, as state attorneys general regularly do. Defiance of the law—the aggressive form of nullification—is not consistent with the rule of law.
In recent decades, however, “nullification” has been used in a looser sense (sometimes referred to as “interposition”), in the context of states legalizing marijuana (the possession and sale of which are illegal under federal law), cities declaring themselves “sanctuaries” for illegal aliens, and the like. Opposition short of outright defiance is not forbidden by the Supremacy Clause.
Due to their dual sovereignty, state governments (and their political subdivisions) are permitted, within limits, to disagree with federal law. In a dispute concerning Pennsylvania’s objection to the federal Fugitive Slave Act, the Court held in Prigg v. Pennsylvania (1842) that the states cannot be compelled to use state law enforcement resources to enforce federal law. This principle, re-affirmed in New York v. United States (1992) and Printz v. United States (1997) as the notion that the federal government cannot “commandeer” state officials to enforce federal law, allows states to refuse to cooperate with federal authorities regarding the enforcement of laws they find objectionable, even if they cannot affirmatively interfere with the enforcement of federal law.
Sometimes mere non-cooperation is inaccurately called “nullification.” In the wake of the November 2020 election, some conservative states are mimicking the progressive model by proposing to become “Second Amendment sanctuaries.” A pending bill in Tennessee, for example, would prohibit “the state and political subdivisions from using public resources to enforce, administer, or cooperate with the enforcement or administration of” any law abridging the Second Amendment. Other jurisdictions are considering legislation declaring themselves “sanctuaries for the unborn,” in opposition to Roe v. Wade (1973) and its progeny. Laws restricting abortion would remain subject to challenge in federal court.
How far can this go? States are free to decline to assist in the enforcement of federals laws to which they object, but they cannot actively interfere with the federal government’s operations. In light of the overwhelming resources at the disposal of the federal government, non-cooperation by recalcitrant states is not a substantial impediment. Some proposals—under the rubric of “restoring state sovereignty”—go further, purporting to require state courts to reject federal judicial precedents when hearing cases challenging the constitutionality of federal laws. This approach is almost certainly unavailing under the Supremacy Clause.
Other proposals, such as constitutional amendments to overturn specific Supreme Court decisions, to require super-majorities of the Court to invalidate state laws, to allow Congress or the states to veto Supreme Court decisions and the like, as advocated by Texas Gov. Greg Abbott (among others), would seek to nullify federal law within the structure of the Constitution. This approach, while consistent with constitutional norms, is unlikely to succeed as a practical matter. As I noted in Law & Liberty in 2016, “34 states will never support a constitutional convention, and even if they did—and adopted these nine amendments—it is barely conceivable that three-fourths of the states (38) would ratify them.”
Some theories advanced by conservative activists are clearly extra-constitutional, such as the Reformation era “Lesser Magistrate Doctrine,” which is a pseudo-religious rationale for civil disobedience. Similarly, the Declaration of Independence—an announcement of rebellion—ultimately rested on mankind’s inherent right “to alter and abolish” an oppressive regime, “and to institute new Government.” This is a call for revolution, invariably leading to war. Therefore, it is a measure of last resort, not to be undertaken (or advocated) lightly. The road to Appomattox was littered with over 600,000 corpses.
It is unfortunate that the Biden-Harris administration, with the backing of the Pelosi-led House and the Schumer-led Senate, seems intent on pushing a divided country to the brink. Neither moderation nor respect for federalism temper the Democrats’ policy agenda. Americans dissatisfied with this situation have no easy—or simple—solutions. They are free to participate in and influence all levels of government, but only within the established institutional framework and using the recognized tools of legislatures, executives, and courts. This may not guarantee results, but it is the only legitimate path forward.
“Nullification,” in the sense of repudiating or defying duly enacted federal laws, is a futile act that, at best, will waste time and create disappointment; at worst, it will lead to armed confrontation of the type Andrew Jackson threatened in 1832-33. After the events of January 6, it should be clear that “going rogue” is not a viable strategy in the 21st century. In order to preserve constitutional government, Americans must work within the Constitution and its processes.