Mark Pulliam on Nullification
Michael Ramsey
At Law & Liberty Forum, Mark Pulliam: Nullification of the Constitution. From the introduction:
In an era of norm-bending politics, it is no wonder that concerned citizens seek simple solutions to complex problems. On the right, some beleaguered conservatives have embraced the notion that the Constitution, properly understood, allows states unilaterally to nullify federal laws they believe to be unconstitutional. I addressed this topic in Law & Liberty a few years ago, but proponents of nullification continue to urge state legislatures to enact statutes to overturn federal laws (and judicial decisions) with which they disagree.
In recent decades, hundreds of “nullification” bills have been introduced in more than three-quarters of the states, many of them issue-specific protests against Obamacare, gun control, the Federal Reserve, regulation of raw milk, and other federal actions anathema to conservatives. I do not regard these measures as true examples of “nullification” because they are essentially statements of disagreement or vows of non-cooperation, rather than declarations of defiance in the name of state sovereignty. Only the latter rests explicitly on the claim that states can judge the constitutionality of federal laws—and to refuse to obey laws they deem to be contrary to the Constitution.
However, in some cases true nullification laws have been proposed, and even passed, creating a process for states to disregard federal laws if the state (generally acting through its legislature) finds the laws to be ultra vires, and therefore null and void. Utah recently enacted such a “Constitutional Sovereignty Act,” which could provoke a showdown with the federal government if and when a particular action is declared invalid by the Beehive State. Similar bills are pending in Missouri, Wyoming, and Tennessee.
Many Americans regard their national government as a hostile “regime” and are looking for any possible way to push back against centralized, often illegitimate authority. In a republic, the solution is constructive civic engagement, not futile resistance—unless, of course, the goal is disunion.
I hope this forum will provoke an informed dialogue on an issue that has roiled the nation since its founding—the respective roles of the federal and state governments in interpreting the Constitution.
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The brand of nullification advanced by proponents such as the John Birch Society, the Tenth Amendment Center, and libertarian author Thomas Woods is not limited to protests and non-cooperation. It amounts to full-blown resistance to the federal government, presuming that the states are not bound by federal laws they consider to be unconstitutional. This form of nullification, which emasculates the Supremacy Clause, is secession-lite. In fact, one representative article in JBS’s The New American is titled “Secession? Why Not Nullification?” This misguided argument undermines our union and misreads the Constitution.
With a response from John G. Grove: Nullification and Ultimate Authority. From the introduction:
It is not often that I disagree with Mark Pulliam on matters related to the Constitution. And I don’t entirely disagree with his lead essay, “Nullification of the Constitution”—at least not with the bottom-line position on the flurry of state “nullification” provisions over the past few years. Though I have not followed them closely, they mostly seem performative and unserious. And I agree with him that any serious attempt at full-on nullification—a state actively preventing the enforcement of federal law—today would likely be impossible and counterproductive, given that the idea of states having their own obligations to their own people is now a foreign concept to contemporary political practice.
Where I disagree with Pulliam is in his account of the Constitution’s federalism and the history of early republic versions of nullification. As with my previous writing on the subject, I do not argue in absolute terms—that the original constitution definitively allowed for a state to nullify federal laws. But I will argue two points: First, given certain assumptions about the Constitution—ones that were common in the early republic—nullification was a perfectly plausible extrapolation from the nature of the federal union. Second, the various theories of nullification addressed a very real and serious question about ultimate authority in the constitutional system—a question that can’t be swept under the rug the way Pulliam wants to.
Further responses are expected.
I think states (and anyone else) can refuse to follow laws they think are unconstitutional. But there may be legal and practical consequences. In particular, as to legal consequences, my view is that the Constitution's designation of the Supreme Court as "supreme" means that it determines, within the legal systems of the national and state governments, which laws are constitutional and which aren't; states are bound by that determination until they can get it overturned by legal means, and the federal government can enforce that obligation upon the states. I'm not sure where that puts me in this debate.