By Jim Sykes
Nullification is the procedure available to states that allows that state to refuse to enforce unconstitutional federal laws within that state’s borders.
The people of the states created the federal government and listed the limited (enumerated) powers granted the federal government. All actions by the federal government that exceeds those powers are unconstitutional. As Thomas Jefferson and James Madison wrote in their 1798 and 1799 Kentucky and Virginia Resolutions, “nullification is the rightful remedy” when the federal government exceeds its constitutionally enumerated powers and the states are “duty bound to resist” when the federal government violates the Constitution.
The Declaration of Independence established “free and independent states that have full power ... to do all acts and things which independent states may of right do.” The Articles of Confederation says that the states “retain their sovereignty, freedom, and independence.” After the delegates to the convention in Philadelphia signed the Constitution, it required ratification by a minimum of 9 states before becoming effective, and then, only in those states ratifying it. In our system of government, the people of the states are the sovereigns and they have the right and responsibility to enforce the provisions of the federal Constitution. The constitution cannot enforce itself. All levels of government exercise the sovereignty of the people through the people’s elected representatives.
By the very nature of our government, the American citizens of each state retain the right and power to determine if their elected representatives have exceeded the authority granted to them.
Jefferson warned, “if the federal government is allowed to hold a monopoly on determining the extent of its own powers, we have no right to be surprised when it keeps discovering new ones and it will continue to grow.” In his report of 1800, Madison reminded Americans that the judicial branch was not infallible, and that some remedy must be found for those cases in which all three branches of the federal government exceed their constitutional limits.
The “supremacy clause” of the Constitution, found in Article 6, states, “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.”
The key, of course, is the italicized phrase. All laws "which shall be made in Pursuance thereof", or those clearly enumerated in the document, were supreme, State laws notwithstanding. In other words, the federal government was supreme in all items clearly listed in the constitution. The Supremacy Clause applies ONLY to constitutional laws, not unconstitutional laws.
The Tenth Amendment to the Constitution reads, “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.”
Clearly the intent of this amendment was to mitigate any design the federal government had on enlarging its powers through the “supremacy clause.” If the power was not enumerated in the Constitution and the States were not prohibited by the Constitution from exercising said power, then that power was reserved to the States or to the people. When asked to read between the lines to “find” implied powers, Thomas Jefferson responded that he had done that, and he “found only blank space.”