Living, Dead, and Undead: Nullification Past and Present

Nullification is considered an antebellum relic. But recently several state legislatures have passed or introduced bills asserting a state’s right to judge federal laws unconstitutional and block implementation within the state. Policies today targeted for nullification include health care regulation, firearms law, and birthright citizenship. This essay examines the constitutional theory of nullification in its antebellum, 1950s, and contemporary variants. Madison’s “double security” federalism is contrasted with Calhoun’s nullification doctrine. Nullification today advances different purposes than in the past, but its axioms echo Calhoun’s and are incompatible with the Fourteenth Amendment. A federal union grounded on popular sovereignty responds to constitutional understandings of nonjudicial actors; thus, nullification bills have practical effects even if rejected in federal court. Nullification today inhabits a politically polarized climate, like the 1850s, where two states might nullify federal law in opposite directions. Nullification legislation “sends a message” better communicated in other ways.