Two Constitutional Wrongs Don’t Make a Right: Why Conservatives Should Just Say “No” to Nullification

A number of states, including Missouri, Kansas, and Alaska either have passed or are considering state laws intended to invalidate federal statutes, most notably, federal gun laws. Many have modeled their bills on Montana’s “Firearms Freedom Act,” which was recently struck down by a federal appeals court. In so doing, they have drawn upon the political doctrine of nullification, according to which individual states have the right to pass legislation voiding any federal law that they believe to be unconstitutional.

Their inclination to do so is understandable since states are facing an increasingly overbearing federal government seemingly intent on infringing on state prerogatives and on the individual liberties of their citizens; however, this 

The History of Nullification

Historically, nullification has an ignominious lineage. Its chief architect was John C. Calhoun, former Vice President, Secretary of War and State, and U.S. Senator from South Carolina, who used the concept of nullification to defend states’ rights against federal tariffs and, ultimately, challenges to the institution of slavery.

The core premise behind Calhoun’s concept of nullification is that the states were, prior to the framing of the Constitution, independent sovereigns that consented to be bound by federal law only on certain conditions and that they retained enough of that sovereignty to “veto” unconstitutional federal laws. Yet the Constitution contemplates not a league of independent sovereigns but a federated republic. After 1787, the several states were not independent sovereigns in the same sense that Spain or France were independent sovereigns—for instance, they could not wage war, maintain diplomatic relations with foreign nations, or coin their own money. And, in the federated republic that was forged by the Constitution, duly enacted federal laws cannot be vetoed by individual states, even where they appear to encroach upon state prerogatives.

That is why James Madison, in opposing what he considered to be unconstitutional federal laws, did not press for legislation voiding those laws. The Virginia Resolution, which Madison drafted in 1798 in response to the Alien and Sedition Acts, were intended as “a legislative declaration of opinion on a constitutional point.”[1].

Via: Heritage Foundation

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