State Governments and the People’s Liberty

by Jim Lewis

Last week I was having a conversation with an Ohio State Representative, as is the case with most such conversations the topic always turns to Nullification.

After the topic of Nullification was raised, by me, I got the predictable three responses from the rep. First, “If we do that, then the feds will cut off money”, second, “No State is nullifying” and last I got the knowing “smile”, the smile that says, “you don’t understand how politics really work, leave it all to me”.

My response has become predictable too, I asked if they knew what nullification is and then I asked if they have ever heard of the anti-commandeering doctrine ? I ask them if they know what the Founding Fathers said about the role of the States when the federal government oversteps its Constitutional boundaries .

They are still giving me the “smile” but it’s not a wide now as it was. Let’s tackle my questions to the legislator’s one at a time.

First, let’s clarify something, what does it mean when a State nullifies something ? It simply means “We refuse to do it.

That’s it in just five words. The States just refuse to use their resources, i.e. manpower, time, and money to put into effect an unconstitutional federal law or regulation. There are two conditions that must be met before a State can use nullification and they are:

  1. The law or regulation must be unconstitutional
  2. It must require the State or the People to do something

The Founder’s made it very clear in their writings that it was the State’s obligation and duty to oppose unconstitutional federal law.

When it comes to the State’s role I think we all need reminding from time to time about what the Founder’s actually said:

“ … Besides this security (Bill of Rights), there is a great probability that such a declaration in the federal system would be enforced; because the State Legislatures will jealously and closely watch the operations of this Government, and be able to resist with more effect every assumption of power, than any other power on earth can do; and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…”

~ James Madison Introduction to the Bill of Rights

June, 1789

“ … But there is another check, founded in the nature of the Union, superior to all the parchment checks that can be invented. If there should be a usurpation, … it will be upon thirteen legislatures, … having the means, as well as inclination, successfully to oppose it. Under these circumstances, none but madmen would attempt a usurpation… “ 

~ Theophilus Parsons

Massachusetts Ratifying Convention 1788

“…It may safely be received as an axiom in our political system, that the State governments will, in all possible contingencies, afford complete security against invasions of the public liberty by the national authority…

~ Alexander Hamilton Federalist #28

“If the interposition of the State legislatures be necessary to give effect to a measure of the Union, they have only NOT TO ACT, or to ACT EVASIVELY, and the measure is defeated.”

~Alexander Hamilton, Federalist #16

“Where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them.”

~Thomas Jefferson, Kentucky Resolutions, 1798

“But ambitious encroachments of the federal government, on the authority of the State governments, would not excite the opposition of a single State, or of a few States only. They would be signals of general alarm. Every government would espouse the common cause. A correspondence would be opened. Plans of resistance would be concerted. One spirit would animate and conduct the whole.”

~James Madison, Federalist #46

Don’t amend the Constitution. Don’t sue the federal government in federal courts. The States are supposed to protect us by NULLIFYING unconstitutional federal laws by refusing to enforce them.

Next, let’s discuss the Anti-Commandeering doctrine. What is it ? The basis for this doctrine was the advice of James Madison. Writing in Federalist #46, he advised four primary tactics for individuals and States to effectively push back against federal overreach, including a “refusal to cooperate with officers of the Union.”

Going back over 177 years the Supreme Court has said that States do not have to use their manpower or money to enforce federal law or any regulatory programs.

Here are five cases where the Supreme Court has upheld this doctrine:

Prigg v. Pennsylvania (1842) – The Federal Govt. could not force States to enforce the Fugitive Slave Act of 1793.

~Chief-Justice Joseph Story

New York v. United States (1992) – The Federal Govt. cannot “commandeer the legislative process of the States by directly compelling them to enact and enforce a federal regulatory program

~Justice Sandra Day O’Connor

Printz v. United States (1997) – Federal Govt. can neither direct the States to address Federal problems or command the States’ officers or political sub-divisions to administer or enforce a federal regulatory program. 

~ Justice Anthony Scalia

N.F.I.B v. Sebelius (2012) – “The Constitution has never been understood to confer upon Congress the ability to require the States to govern according to Congress’ 

~Chief-Justice John Roberts

Murphy v. NCAA (2018) – The Court held that Congress can’t take any action that “dictates what a State legislature may and may not do” even when the State action conflicts with federal law, “a more direct affront to State sovereignty is not easy to imagine.”

~Justice Samuel Alito

No States are nullifying. This one is easy to dispense with. Right now there are 34 States nullifying federal drug laws by legalizing marijuana for either medical use, recreational use or both.

You can follow who is in the process of nullifying what by going to the 10th Amendment Center’s website:

Lastly, let’s talk about the biggest worry for most State legislators, the M-O-N-E-Y. That’s always the first thing a legislator will bring up, if we nullify something, they will cut off the money.

I say to them, if you aren’t using State resources to enforce an unconstitutional law or regulation, i.e., not spending any money on them, then it doesn’t matter if they cut off that money, does it ? They can’t cut off money for programs States are running, just for the ones they aren’t.

You can tell by reading the words of the Founders that they expected the State governments to jealously guard against the federal government encroaching on powers that rightfully belonged to the States.  

“…and the greatest opponents to a Federal Government admit the State Legislatures to be sure guardians of the people’s liberty…”

~ James Madison Introduction to the Bill of Rights

June, 1789

The problem with Nullification is that it is misunderstood by most people or not even known about by the rest.

It is up to us, the people, to see to it that our State legislators know about nullification and that we expect them to use it to start reigning in a federal government that is out of control.