Nullification of the Constitution – Mark Pulliam

“Nullification” is used imprecisely to refer to many different things, not all of which are controversial. Resolutions by state officials expressing opposition to particular federal laws, declarations of non-cooperation (such as cities proclaiming themselves “sanctuaries” for illegal aliens), and even enacting state laws permitting the sale and use of controlled substances banned by federal law are permissible because states cannot be compelled to enforce federal laws. Federalism forbids the national government to “commandeer” state resources to enforce federal law. This dates back to the antebellum Supreme Court decision in Prigg v. Pennsylvania (1842). Neither, however, can states interfere with the enforcement of federal law or unilaterally override the federal courts’ interpretation of the Constitution and federal statutes, contrary to the Constitution’s Supremacy Clause.

Proponents of nullification tend to conflate the foregoing actions without distinguishing among them, envisioning statements of protest, Second Amendment sanctuaries, withholding state funds, and outright defiance. A proposed Tennessee bill that I am most familiar with (S.B. 2775), for instance, is broad enough to cover all of these forms of “nullification.” My objection is limited to the notion that state officials have the authority to declare federal actions (laws, regulations, policies, and court decisions) “null and void” if the state deems them unconstitutional. S.B. 2775 decrees that nullified laws “must be resisted.” The proposed Tennessee bill even empowers state judges to ignore controlling federal precedents (including Supreme Court decisions) as they see fit. Imagine a jurisprudential Tower of Babel!

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. 

via lawliberty.org

I like Mark Pulliam, perhaps because I might have had lunch with him during Reagan 2 or Bush 1. But I might be misremembering. I also like the idea of nullification, especially as things are going. Isn't it what sanctuary cities are all about? Personally, I think it's inevitable. Just wait and see.