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Factsheet #101 on Rule of Law

February 8, 2012

Nullification: Unlawful and Unconstitutional

Nullification Is Unconstitutional

  • The Nullification Temptation: In order to challenge the federal government’s unconstitutional actions, states are looking for options to reassert their legitimate role in the constitutional structure of federalism. Unfortunately, despite good intentions, some have been tempted to embrace nullification—the claim that an individual state legislature has the authority to veto federal laws.

  • Supreme Law of the Land: At the center of our system of government is the United States Constitution: All federal and state officers and judges are bound by oath to support it and the laws of the United States made in pursuance thereof. The Constitution is the supreme law of the land—not the Supreme Court, the federal government, or an individual state legislature, for that matter.

  • Nullification Is Unconstitutional: The constitutional case against Obamacare can be made in detail and in general. State legislatures can do many things to object to, challenge, and seek the repeal of such federal laws. But there is no clause or implied power in either the national or the various state constitutions that enables states to veto federal laws unilaterally.

The Founders Rejected Nullification

  • We The PeopleNullification Is Bad History: Advocates of nullification often point to Madison and Jefferson’s drafting of the Virginia and Kentucky Resolutions of 1798—which protested the constitutionality of the Alien and Sedition Acts—as proof that the Founders advocated nullification. This is incorrect and misleading.

  • James Madison: Madison’s Virginia Resolutions did not speak of nullification or voiding laws, asserting that the resolutions did not “annul the acts” but were only “a legislative declaration of opinion on a constitutional point.” During the Nullification Crisis of 1832, Madison strongly denied John C. Calhoun’s theory of state nullification.

  • Thomas Jefferson: While Jefferson referred to nullification in the draft of the first Kentucky Resolutions (by which he meant a natural right to revolution outside the constitutional structure), the final language excluded the term and called on other states to join "in requesting their repeal at the next session of Congress." The 1799 version affirmed that the resolutions did not supersede federal law but were rather a “solemn protest” against the objectionable legislation.

The Constitutional Path

  • Madison’s Alternative: In the Virginia Resolutions, Madison asserted the power of states “to interpose for arresting the progress of evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” This meant various state actions designed to arouse public opposition, challenge federal actions, and ultimately change or stop the objectionable action. Recent state Health Care Freedom Acts, not to mention subsequent legal challenges and pending elections, are good examples of state action challenging Obamacare.

  • The Constitutional Way to Change Laws: Rejecting nullification as an option does not mean that the states or the people have no recourse. The Constitution itself lays out the best path to change unconstitutional laws: object to the law and change opinions (and political leadership) in the political process, defund and slow its implementation, change or repeal the law, challenge it in the courts, and, if necessary, amend the Constitution.

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