Nullification Station: States' Power Over Federal Law

Nullification is a constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. The theory was set forth by Thomas Jefferson and James Madison in the Kentucky and Virginia Resolutions in 1798. The Kentucky Resolutions declared the Alien and Sedition Acts unconstitutional and altogether void and of no force in the state of Kentucky. The Virginia Resolutions sought to nullify the acts through the Virginia Resolution of 1798, written by James Madison. The theory of nullification argues that states have the power to invalidate federal laws, treaties, or judicial decisions they find to be in violation of the U.S. Constitution. However, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws.

The Supremacy Clause

Nullification is the theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. Thomas Jefferson and James Madison set forth the theories of nullification and interposition in the Kentucky and Virginia Resolutions in 1798. However, the power to make final decisions about the constitutionality of federal laws lies with the federal judiciary, not the states, and the states do not have the power to nullify federal laws. This has been repeatedly rejected by the federal courts, including the U.S. Supreme Court.

Interposition

The concepts of interposition and nullification were first introduced in the Kentucky and Virginia Resolutions of 1798, written by Thomas Jefferson and James Madison, in response to the Alien and Sedition Acts passed by the federal government. The Alien Act empowered the president to deport aliens deemed a threat to national security, while the Sedition Act criminalized "false, scandalous and malicious" speech critical of the federal government.

The Kentucky Resolutions, drafted by Jefferson, asserted that the Constitution was a "compact" among the states, delegating specific powers to the federal government while reserving all other powers for the states. According to Jefferson, if the federal government exceeded its delegated powers, each state had the right to "nullify of their own authority" any violation of the Constitution.

The Virginia Resolutions, drafted by Madison, introduced the concept of "interposition." Unlike nullification, interposition does not involve a state declaring that a federal law is void and unenforceable within its borders. Instead, interposition is a more moderate approach where a state declares a federal law unconstitutional but continues to enforce it. The state then communicates with other states, attempts to enlist their support, and takes joint action such as petitioning Congress to repeal the law or proposing constitutional amendments.

The theories of interposition and nullification have been repeatedly rejected by state and federal courts, including the US Supreme Court, which has upheld the Supremacy Clause of the Constitution, declaring federal law superior to state law. However, the concepts continue to be invoked in modern political debates, particularly regarding issues like healthcare regulation, firearms law, abortion, and birthright citizenship.

State sovereignty

The concept of state sovereignty in nullification is based on the idea of "compact theory," which posits that the states created the federal government through a compact or agreement. According to this theory, the states are the interpreters of the federal government's authority, not the federal courts. Thomas Jefferson and James Madison, authors of the Kentucky and Virginia Resolutions of 1798, respectively, are often credited with originating the theory of nullification.

Nullification supporters argue that the power to declare federal laws unconstitutional is inherent in the concept of state sovereignty and is one of the powers reserved for the states by the Tenth Amendment. They contend that before the Constitution was ratified, the states functioned as separate nations. In their view, the Constitution is a contract or compact among the states, through which they delegated certain powers to the federal government while retaining all other powers for themselves. This includes the inherent right to judge compliance with the compact and to nullify federal laws that violate it.

However, federal courts, including the U.S. Supreme Court, have consistently rejected the theory of nullification. They maintain that the Constitution was established directly by the people, as stated in its preamble: "We the people of the United States." The Supremacy Clause of the Constitution, found in Article VI, establishes the superiority of federal law over state law, stating that the Constitution and federal laws made in pursuance thereof are "the supreme Law of the Land." This clause underscores the principle that federal law takes priority over conflicting rules of state law.

The Tenth Amendment

Nullification is the theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. The Tenth Amendment, which was ratified on December 15, 1791, is often invoked by supporters of nullification, who argue that it reserves certain powers for the states and the people. The text of the amendment is as follows:

> "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people."

However, it is important to note that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states. The federal courts, including the Supreme Court, have consistently rejected the theory of nullification, holding that the states do not have the power to nullify federal laws. They have decided that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that the federal judiciary has the final power to interpret the Constitution.

Jury nullification

In the United States, jury nullification has been used to oppose laws that the jury perceives as unjust, such as the Fugitive Slave Act, which penalized runaway slaves, alcohol prohibition during the Prohibition era, and draft evasion laws during the Vietnam War. Jury nullification can also occur when a jury refuses to convict due to their own biases in favour of the defendant.

The legality of jury nullification is a contentious issue. Some argue that juries should not be instructed on jury nullification, and that engaging in it would violate the juror's oath. However, courts have agreed that jury nullification is a power that jurors have and that they cannot be punished for exercising it. The Fifth Amendment's Double Jeopardy Clause prohibits the appeal of an acquittal, ensuring that defendants found not guilty cannot be retried for the same crime.

Despite the protection afforded to jurors, there have been instances where individuals advocating for jury nullification have faced legal repercussions. For example, Julian P. Heicklen, a jury nullification activist, was charged with jury tampering for distributing pamphlets about jury nullification outside courthouses. In another case, Keith Wood was arrested and charged with felony obstruction of justice and misdemeanor jury tampering for handing out fliers about jury nullification in front of a courthouse. The felony charge was dismissed, but he was convicted on the misdemeanor charge. However, the Michigan Supreme Court later overturned Wood's conviction.

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