Nullification and Interposition – Part 1
Thomas Allen
When people oppose a federal act, most of them support the right of States to interpose and nullify that act. However, they oppose the right of States to interpose and nullify a federal act when they support that act.
Would the people who object to States interposing to thwart the federal government apprehending and deporting illegal aliens have also objected to States interposing to thwart the enforcement of fugitive slave laws? Most would probably support the States interposing and nullifying fugitive slave laws. Yet, the Constitution emphatically requires returning runaway slaves, but it does not expressly require or even authorize the federal government to deport illegal aliens. (See Article IV, Section 2, Clause 3 of the Constitution.) Nevertheless, one can argue that deporting illegal immigrants is enforcing the nationalization statutes — but that is for each State to decide for itself.
If they are consistent, people who object to a State interposing to prevent the federal government from enforcing immigration laws that a State finds unconstitutional should also object to a State interposing to prevent the federal government from enforcing gun laws that it finds unconstitutional. Conversely, people who support a State interposing to prevent the federal government from enforcing gun laws that the State finds unconstitutional should also support a State interposing to prevent the federal government from enforcing immigration laws that it finds unconstitutional.
For example, if the federal government outlawed private ownership of so-called assault rifles, most ardent Second Amendment proponents would support States nullifying that law and oppose the federal government overriding the nullification. However, if a State outlawed private ownership of assault rifles, most of these same proponents would urge the federal government to veto such a State law. If the State nullified the federal government’s veto of the State law, these same proponents would urge the federal government to override that nullification. Thus, only a few people support nullification in principle. Most support nullification if it supports their position and oppose nullification if it opposes their position.
Now, let us look at some definitions. “State” can mean either the government of a State or “we the people” of that State, who created the government of that State and are a community distinct and independent of all other States. “We the People” are not all Americans collectively forming one great community. (See “Meaning of ‘We the People’” by Thomas Allen.) Sovereign power resides in the people of each State (“we the people”) independent of the people of the other States (“we the people” of each of the other States).
Being sovereign, a State may take three actions against an unconstitutional act of the federal government: nullification, interposition, or veto. Nullification nullifies an unconstitutional act regarding the nullifying State. Interposition is a State shielding its citizens from the federal government. Veto is the arresting or inhibiting an unconstitutional act of the federal government within the bounds of the State.
Nullification is not secession. With nullification, only the nullified federal act is unenforceable; all other federal laws remain enforceable. Confining the agent, the federal government, within the limits of its delegated powers is the objective of nullification. With secession, no federal law remains enforceable in the seceding State because the State is no longer in the union, and, therefore, it is no longer under the jurisdiction of the federal government. It is a foreign nation. Withdrawing as a member of the union relieves the seceding State of the obligations of the association, the union; that is the objective of secession. A seceding State also loses the benefits of the union. Thus, secession returns the seceding State to the relationship that it had with the other States before it joined the union. While a nullifying State remains in the union, a seceding State removes itself from the union. Secession deals with the acts of States that make remaining in the union unbearable. Nullification deals with the acts of the federal government, which is an agent of the States. Whereas secession divides the union, nullification preserves it and the Constitution.
Before the adoption of the Constitution, no State nor all the States could exercise any power over a State without that State’s consent. They were independent nations.
In the Declaration of Independence, the colonies declared themselves to be free and independent States (nations) and not a free and independent State (nation). Furthermore, the Treaty of Paris of 1783, which formally ended the American Revolutionary War, recognized the colonies as 13 independent States (nations). Also, they proposed the Constitution as independent States and ratified it as independent States. The ratifying States bound themselves to the Constitution, but they did not bind any State that had not ratified it.
When a State ratified the Constitution, it bound only its citizens and no other people. Thus, the Founding Fathers’ Constitution formed a union of States and not a union of individuals.
Since the Constitution, which the sovereign States brought into being with ratification, created a general government (the US government, federal government, or general government) as their agent, the created agent has no right to impose its construction of the Constitution on the States or any one of them. Thus, the Constitution of 1787 formed a political community of sovereign States (nations) where each State may determine for its citizens the extent of powers delegated to the federal government and those reserved to the States.
Accordingly, the Constitution of 1789 was a contract between independent sovereign republics, which created an agent, the federal government, to carry out specific and limited activities. Then, Lincoln came along and essentially voided that contract and usurped all the sovereignty and powers of the States, the parties to the contract. (Now, the States have only those powers that the federal government condescends to grant them.)
The Constitutional Convention rejected giving the federal government the power to prevent a State from opposing and preventing (interposing and nullifying) the execution of acts of the federal government. Also, it rejected authorizing the federal government the power to compel a State (its government and “we the people” of that State) to obey federal acts. Furthermore, it rejected giving the Supreme Court jurisdiction over all controversies between the United States and an individual State. Moreover, it rejected giving Congress the power to void State laws that Congress believed interfered with the interests of the union. Thus, the Constitutional Convention endorsed nullification by forbidding the federal government from enforcing its law in a State once that State objected to that law. Nowhere does the Constitution authorize the federal government to exercise any control over a State by force, veto, judicial procedure, or otherwise.
Moreover, a common and radical error that many people make is that the federal government is a national government; it is not. It is a confederate government. It is a misconception to view the federal government as a national government that can enforce its will upon the states in the United States' political system. If it were a national government, it would derive its power from a source higher than the States. However, since it derives its power from the States, i.e., “we the people” of each State, it is subordinate to “we the people” of the States, who are the sovereigns. That is, the federal government derives its power from the sovereigns.
In its sovereign capacity, a State can decide independently for itself whether an act of the federal government is unconstitutional. If a State finds an act of the federal government unconstitutional, it has the right in its sovereign capacity to declare that unconstitutional act null and void. Moreover, the federal government has no right to enforce its notion of its powers against that of a State — the State’s notion prevails.
Nullification is based on the principle that a State has the right to defend its reserved powers from the encroachment of the federal government. Whether the Constitution has granted a particular power to the federal government, each State, as a sovereign, decides for itself. If a State finds that a particular act of the federal government exceeds its delegated authority, that act is null and void. Its citizens have no obligation to obey it. However, a State’s nullification does not affect citizens of other States.
To deny the States the right of nullification to defend their reserved powers results in the federal government deciding the extent of its powers and leads to the federal government assuming powers that the States reserved for themselves. History has proven this usurpation. In 1787, only the most radical Anti-Federalist could have imagined that the federal government would become as bloated and tyrannical as it is today.
Nullification seeks not to resist or diminish the powers of the union, but to preserve them as they are, without decreasing or increasing them. (Increasing the union’s powers can effectively destroy the union — as Lincoln proved — as diminishing them.)
Copyright © 2025 by Thomas Coley Allen.
Part 2.
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