Nothing Funny About Nullification

State Senator Damon Thayer was on The Daily Show recently arguing that Kentucky had the right to nullify laws that it did not agree with. The show mocked Thayer, and plenty of other people have piled on, but it seems like a good time to actually address the issue of nullification.

Thayer’s argument was that the people of Kentucky did not vote for President Obama so they don’t necessarily have to comply with laws he supports. He also mention in an interview in the newspaper that he discussed the Tenth Amendment on the Daily Show, but that argument was cut.

The Tenth Amendment says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people.” Conservatives frequently argue that this amendment proves that the nation was envisioned as a federation, and that the states are equal to, if not supreme over, the national government.

The only problem with this argument is the Supremacy Clause, which says that “This Constitution, and the laws of the United States which shall be made in pursuance thereof … shall be the supreme law of the land …..” Courts, including the Supreme Court, have consistently held that this provision means that Federal laws supersede state laws, and that the states cannot nullify federal laws.

States have long sought to nullify federal laws that they don’t like. In the early years of the nation southern states attempted to nullify federal laws regarding slavery that they opposed. The first attempt was the Kentucky and Virginia Resolutions, drafted and pushed largely by Thomas Jefferson and James Madison in opposition to President Adams’ Alien and Sedition Acts, that said the states had the power to interpret the Constitution and could not be forced to apply laws they found unconstitutional. Jefferson attempted to get other states to pass similar resolutions, but every other state rejected the idea.

There were numerous subsequent cases where the Supreme Court rejected the idea of state nullification of Federal Law. In 1809, in the case of United States v. Peters, 9 U.S. 115 (1809), the Supreme Court held that the state of Pennsylvania could not pass a law nullifying a federal court decision. In McCullock v. Maryland, 17 U.S. 316 (1819) and Osborn v. Bank of the United States, 22 U.S. 738 (1824) the Supreme Court held that states could not impose restrictions on the Federally chartered Bank of the United States. In Worcester v. Gorgia, 31 U.S. 515 (1832), the Supreme Court held that the state of Georgia could not pass a law making Georgia law applicable on Indian Territory, which is governed by federal treaty.

The “Nullification Crisis” involved an attempt by the state of South Carolina to nullify the Tariff of 1828 (known as the Tariff of Abomination) which imposed duties on imports of certain manufactured goods. The Tariff benefited the industrial Northern States, but hurt the South. South Carolina passed a law saying the Tariff was unconstitutional, and that the state would not enforce it. President Andrew Jackson, no friend of federal power, threatened to send in federal troops to enforce the laws, but the issue was resolved by a compromise Tariff bill.

The Court dealt with nullification and slavery in a number of cases, particularly involving the Fugitive Slave Act, which required free states to send slaves back to slave states. Pennsylvania tried to prevent enforcement of the law, but the Supreme Court said they could not nullify federal law, in Prigg v. Pennsylvania, 41 U.S. 539 (1842). The Wisconsin Supreme Court held the Fugitive Slave Law unconstitutional, but the U.S. Supreme Court overturned the Wisconsin decision, and also set out a detailed analysis of the idea of nullification. See, Ableman v. Booth, 62 U.S. 506 (1859).

The Civil War ended many arguments over the balance between state and federal power, but the issue arose again starting in the 1950’s, and the national government began to deal with civil rights for African-Americans. In Brown v. Board of Education, 347 U.S. 483 (1954), the Court held that the ideas of equal protection in the Federal constitution superseded state laws segregating schools. Most Southern states were outraged, and they dredged up the theory of nullification. Arkansas passed a law that said that the state did not have to integrate its schools, and the federal government could not make them. The Supreme Court, in a 9 to 0 decision, said that the states had no power to nullify federal law. See, Cooper v. Aaron, 358 U.S. 1 (1958).

I find it troubling that conservatives are again trying to revive this long discredited legal theory. I also find it strange that conservatives, who are supposed to believe in and respect the lessons of history, are so ignorant of history.

Author: Mike

I am a patent attorney in Lexington, Kentucky. My law firm web site is I ran for State Representative in 2010 and lost in the primary. Many of these posts are based on writing that I did for that election. Rather than delete it all, I decided to dump it onto the internet.

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