Nullification is Unconstitutional
posted at 9:44 pm on June 12, 2012 by Patrick Ishmael
A few weeks ago, we had a lengthy conversation in Show-Me Daily’s comments about whether it would be constitutional for Missouri to nullify the Affordable Care Act (ObamaCare). Then last week, the Heartlander published a story on the “nullification” issue wherein I was quoted reiterating my concerns with such proposals. (For context, my Heartlander remarks were drawn from an interview I gave the publication in early May, before Missouri’s legislative session ended.)
Generally, I would let my prior remarks speak for themselves, but given the continuing interest in the topic, I think it is worthwhile to revisit the issue at least one more time.
Is there a constitutional right for states to nullify federal laws? The answer is “No.” As the Heritage Foundation notes, the nullification question was decided far more conclusively than some have suggested, and was decided in substance by the founding generation and its immediate successors. The right did not exist then, and it does not exist now.
Although James Madison’s work is frequently cited to support nullification arguments, the fact is he did not advocate for nullification in 1798. To the contrary, Madison — often recognized as the “father of the Constitution” — vehemently asserted that no nullification right existed for the states, “with a surprise hereafter, that any other [interpretation] should ever have been contended for.” Even President Andrew Jackson, a staunch and boisterous defender of states’ rights, rejected nullification as a right reserved for the states.
There is no “secret” or “forgotten” history here. Whether things “should have” turned out this way and whether they did are very different questions, and they should not be confused as being the same. While I love a good philosophical discussion about how the best or ideal government would be structured, I would be in error if I expressed my philosophy as a history in spite of the history. There is no provision in the Constitution for states to “nullify” a federal law, and I hope the liberty-minded will decline to try and breathe life into such an interpretation.