Note: This piece was originally written to counter anti-nullfication talking points in South Carolina.
Nullification is historically, morally and philosophically the rightful remedy
Doesn’t the Supremacy Clause make state nullification unconstitutional?
No. The Supremacy Clause reads: This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; …shall be the supreme Law of the Land. Only laws made in pursuance of the Constitution – that is, in keeping with the powers enumerated to the federal government – stand as legitimate laws. All other acts are usurpation, and by definition null, void and of no force. An illegal act cannot stand supreme. In fact, it is criminal and should be punished like any other crime.
The General rule is that an unconstitutional statute, though having the form and name of law is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment and not merely from the date of the decision so branding it. An unconstitutional law, in legal contemplation, is as inoperative as if it had never been passed. Such a statute leaves the question that it purports to settle just as it would be had the statute not been enacted.
Since an unconstitutional law is void, the general principles follow that it imposes no duties, confers no rights, creates no office, bestows no power or authority on anyone, affords no protection, and justifies no acts performed under it. – 16 Am Jur 2d, Sec 177 late 2d, Sec 256
Doesn’t the Supreme Court make the final determination on the constitutionality of an act?
No. Nowhere does the Constitution grant the SCOTUS sole authority to determine the extent of federal power. The people of the states created the federal government and delegated it specific powers, reserving all other powers to themselves, their state and local governments and their sheriffs. The South Carolina ratifying document makes this fact clear.
This Convention doth also declare, that no section or paragraph of the said Constitution warrants a construction that the states do not retain every power not expressly relinquished by them, and vested in the general government of the Union.
If the people of South Carolina delegated powers and placed limitations on them in the first place, it logically follows that, in the last resort, the people of South Carolina (through their elected representatives) determine the extent of the power that they delegated.
Thomas Jefferson succinctly outlined the final authority of the states in the Kentucky Resolution of 1798.
The government created by this compact (the Constitution) was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers; but that, as in all other cases of compact among powers having no common judge, each party (the people of each state) has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.
In order to invalidate nullification, you must dismantle the entire premise that the ratifiers based their approval of the Constitution upon. You must unravel Jefferson’s logic.
Isn’t Nullification racist?
During the Civil Rights battles of the 1950s and 60s, some southerners did appeal to the principle of nullification in an attempt to sustain segregation. But the improper use of a tool does not negate the value of that tool. Just because a murderer uses a hammer to bludgeon his victim to death does not diminish the hammer’s utility for driving nails. In fact, northern abolitionists appealed to the principles of nullification, even quoting John Calhoun by name, to support their position and resist the draconian Fugitive Slave Act of 1850. This act denied due process to any black person accused of escaping slavery. Northern states passed personal liberty laws in defiance of this “court-approved” federal act, and granted due process rights to black people accused of escaping slavery. These states also refused to cooperate with federal officials facilitating slave roundups. Supporters of nullification stand on the moral high ground. They can uphold the legitimacy of the principles while condemning their use by segregationists. On the other hand, anti-nullifiers must emphatically reject the principles in all cases, even when used by northern states to protect the basic civil liberties their black citizens. The anti-nullifier stands and cheers in support as federal officials haul black men and women, some of them legitimately free citizens, south into slavery on the mere word of a white man. They not only cheer, they obediently join in the chase, as directed by the Fugitive Slave Act.
No enumerated power gives the federal government the authority to create and run a health care system. That responsibility remains with the states and the people. It counts as a gross overreach of power in the same vein as the Sedition Act of 1798 and the Fugitive Slave Act of 1850. Are you going to allow Pres. Obama to blatantly break the highest law of the land? Are you going to obediently cooperate with him? Or are you going to do your duty and stop him in South Carolina?