Nullification in Three Questions

by Ben Lewis

As public awareness of nullification continues to grow, supporters of centralized power continue to demean it as antiquated and dangerous. They claim that nullification is unconstitutional, citing the fact that it is not mentioned in the Constitution.

Curiously, it doesn't seem to trouble them that the powers they want to give the federal government are also not mentioned in the Constitution.

These people are, of course, wrong about the constitutionality of nullification. Their arguments have been proven incorrect time and time again. But their misunderstanding of nullification goes deeper than just constitutional confusion. People who argue against nullification misunderstand the views of the founding generation entirely.

The founders' true views on nullification can be ascertained by answering three simple questions.

1. Does the Constitution limit the scope of the federal government?

Undeniably, the answer is yes. The writers of the Constitution went to great lengths to lay out exactly what the federal government would be permitted to do. In addition to these written limitations, under the legal norms of the day any responsibility that was not explicitly delegated to the government was understood to remain with the people.

This is why men like Pennsylvania's James Wilson said that a Bill of Rights was unnecessary. Because the Constitution did not mention anything about giving the federal government the authority to regulate something like speech, it was understood that the right to free speech was already protected. Since the Constitution only grants authority to the federal government on specific topics, anything that it attempts to do outside of these grants is unconstitutional. The Bill of Rights, particularly the Ninth and Tenth Amendments, merely formalized this understanding.

The anti-nullifiers combat this point by saying that some clauses, typically the Commerce, General Welfare, Necessary and Proper and Supremacy Clauses, give widespread powers beyond what was specifically enumerated. What these people fail to realize (or at least hope that others won't) is that these clauses refer only to the actions that the federal government can take in pursuance of constitutional laws.

This is why the Supreme Court's 2012 finding about the constitutionality of Obamacare is incorrect. Yes, Congress has the power to tax, but not in pursuance of unconstitutional laws. The only reasonable understanding of the Constitution is that it most certainly limits the scope of the federal government.

2. Does it make sense that the Founders would not provide for the possibility that the federal government would ever attempt to go beyond these limits?

Of course not. The writers and ratifiers of the Constitution were highly suspicious of centralized power, so it's absolutely ludicrous to say that they would trust the federal government to confine itself to its delegated powers. If they had this sort of faith in government, they wouldn't have spent months writing and debating the Constitution in the first place.

Much of the Constitutional Convention and the state ratification debates centered on how the federal government could be kept within its limits. Proponents of the Constitution were confident that any unconstitutional legislation could be handled within the structure of the federal government, but their opponents would have none of this argument. They believed that the Constitution would be intentionally misinterpreted by politicians to give themselves increasing amounts of power. There needed to be additional safeguards in place.

These concerns led directly to the Bill of Rights.

3. What government unit would have the final authority to act as a check on federal overreach?

To quell the concerns of the opponents, advocates for ratification assured their audiences that the states would be able to resist unconstitutional legislation. Roger Sherman of Connecticut said, "One excellency of the Constitution is that when the government of the United States…leaps those bounds and interferes with the rights of the State governments they will be powerful enough to check it."

Even Alexander Hamilton, an avid proponent of ratification and a sworn enemy of laissez-faire Jeffersonianism, supported this notion. During the New York ratification debates Hamilton said, "The laws of Congress are restricted to a certain sphere, and when they depart from this sphere, they are no longer supreme or binding."

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In Federalist 33 Hamilton stated that the "acts of the (federal government) which are not pursuant to its constitutional powers…will be merely acts of usurpation, and will deserve to be treated as such." Hamilton said further that, "the state governments possess inherent advantages, which will ever give them an influence and ascendency over the national government, and will forever preclude the possibility of federal encroachment. That their liberties…can be subverted by the federal (government), is repugnant…."

In these statements we have the framers' answer for who has the final authority to stop the federal government's forays into unconstitutional areas. It is the states. They provide the essential check that protects the rights of the people. How are the states to check instances of federal overreach? By simply treating them as "acts of usurpation" and deeming them to be "no longer supreme or binding." In other words, by nullification.

By answering three questions we have been able to build a case for nullification that is logically consistent with the Constitution as it was sold to the states. What's more, we have shown that it is the arguments against nullification that cannot be squared with the beliefs of the framers. So while the anti-nullifiers shed crocodile tears for the Constitution, they also argue against the guiding principles of the American Revolution, the principles of divided authority and limited centralized power.

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