Recently, a reader sent me material relating to “state nullification” of “unconstitutional” federal legislation.  In the material, the reader included a note where he stated that he knew that I opposed the idea of “state nullification,” but he thought I would find the material interesting – and I did find it to be a terrific read.  The concept of the power of the states to nullify federal laws goes back to the inception of the Constitution itself.  It has deep and – unfortunately – bloody roots.  The doctrine of nullification played some role in the events that led to Secession and the Civil War.

I then received an email from a friend that was questioning the right of citizens to oppose immoral laws – and the idea that jury nullification protected citizens from unjust and tyrannical governmental action.  In the span of such a short time, I received two divergent views espousing ideas of nullification as a defense to liberty and sovereignty – both state and individual.  It struck me as telling that people are talking about these things – and voicing these thoughts with increasing volume and intensity.  While both of these nullification concepts are interesting – there is only room here today to talk about one of them.  It is important to recognize, however, that both theories of nullification involve a conscious decision to thwart, oppose or violate the law based upon some personal assessment as to the validity of that particular legislation.

As to state nullification, I would only say that the concept presupposes the ability of states to unilaterally reject federal law – and thereby reject the Constitution itself.  From John Marshall’s decision in Marbury v. Madison, it was understood that the federal judiciary was created as the final arbiter of constitutionality of legislative action.  By entering into the Union, the states gave up some level of their sovereignty in return for membership – a seat at the table – and they ceded to the federal government some of their powers in return for the benefits of a united nation.  In particular, the Constitution – ratified by the states – ceded to the federal government the power to create a federal judiciary and the federal judiciary was intentionally created to balance out and check the power of the other branches of the federal government.  The concept of judicial review provided the ability of the federal courts to protect and defend against usurpation of power by the other branches of government.

This is our system of government – and the Constitution is the supreme law of the land.  It is rightly a revered document, and we need to recognize that the Constitution set up a mechanism that determines these issues – the federal judiciary itself.  Admittedly, there are times when there are issues that people passionately disagree – and people have different views on the scope of power that the federal government should possess – but the courts were entrusted to be the guardians of that document.  If the states simply decide that they have the power to ignore the federal courts, the very fabric of the Constitution itself is irreparably damaged.

This is not to suggest that every person will agree with every decision out of the United States Supreme Court – or any federal court for that matter – involving questions of constitutionality.  I know that I have personal disagreements with some of the decisions.  Given that the decisions in the Supreme Court are often decided by one swing vote, it is obvious that the issues are very divisive by their very nature.  Generally speaking, easy cases do not make their way to the Supreme Court – they are going to be winners and losers, joy and anger in every decision.

The Constitution itself provides a means to correct any errors – it is the amendment process – not a state nullification process which would allow states to simply pick up their ball and go home because they did not like the game anymore.  In fact, there is no specific provision in the Constitution that allows for state nullification of federal laws – but there is an entire section dealing with the amendment process.  If the Founding Fathers had intended to allow states to nullify federal law, then it stands to reason that such an important right would have been included in the Constitution itself.  Even during the early years of the union, the doctrine of state nullification was never truly accepted or advocated – and these were the people who knew and understood the Constitution and its intent far better than we ever will.

This is not to say that the concept of nullification is not intriguing.  It has been an attractive doctrine for the losing side in constitutional battles for centuries.  If it were a viable political or legal theory, it is safe to say that it would have been validated long before 2013.  At this point in our history, the concept of state nullification is used as a political tool – nothing more and nothing less –and a powerful political tool.  For a state to come out and declare a federal act a nullity is an extraordinary legislative action – but this does not mean that it has any force of law.  In reality, the only way to enforce nullification is to enter into open rebellion – ignore the federal law and the federal courts – and force the federal government to enforce its laws.  As I said, the idea of nullification has bloody roots.

Please submit any questions, concerns, or comments to Susquehanna County District Attorney’s Office, P.O. Box 218, Montrose, Pennsylvania 18801 or at our website www.SusquehannaCounty-DA.org or discuss this and all articles at http://dadesk.blogspot.com/.