Here is the text of the statement delivered by Professor Donald Livingston — who has been an important intellectual influence on me — on behalf of state nullification before the House Judiciary Subcommittee in South Carolina two weeks ago:
State nullification is not a violation of the supremacy clause of the Constitution. That clause says that laws made by the United States “in pursuance” of the Constitution are the supreme law of the land which means that acts not in “pursuance” of the Constitution are not laws at all. But who is to decide whether an act is or is not in “pursuance” of the Constitution? Some would say the Supreme Court. The Court may, indeed, express an opinion, but it cannot have the final say. That can only be vested in the supreme authority that ratified the Constitution and gave it the force of law, namely the people of the several states.
What did the states ratify? They ratified a compact between the States to create a central government to which were delegated only enumerated powers, leaving all other powers to the states. Article VII leaves no doubt that the Constitution is a compact between the states, for it says the compact will hold “between the states so ratifying the same.” The powers delegated by the compact to the central government, as Madison said, are “few” and “defined.” The powers reserved to the states are indefinite in number and undefined.
Who is to say what the undefined and unenumerated powers of the states are? The central government cannot have the final say because it is a creature of the constitutional compact between the states. The creature cannot tell the creator what the limits of its powers are. Only the states themselves have the final say over what their undefined and unenumerated powers are. And Madison said that if the central government should intrude into the state’s reserved powers, the states would have a “duty” to “interpose” and protect their citizens from harm.
Consequently, state nullification is not an act whereby a state refuses to comply with a federal law that it doesn’t like. Nullification is the claim that the supposed law is not a law at all because it is unconstitutional. To deny state nullification is to say the central government can define the limits of its own powers which makes our liberties a gift to us from the central government. That is what one is logically committed to who says the Supreme Court has the final say over what the reserved powers of the states are.
But who honestly believes that? The Constitution does not even remotely give the Supreme Court that power. And if an amendment to the Constitution were sent to the states for ratification stating that the Supreme Court has the final say over what the Constitution means, there is no chance it would be ratified by three quarters of the states. The people would not hand over the power to decide their fundamental liberties to nine unelected, politically well connected lawyers.
The Founders knew the central government would inevitably intrude into the reserved rights of the people, and they sought to prevent this with a system of checks and balances. The president can nullify a bill of Congress, but Congress by two thirds vote can nullify that act. The Supreme Court can nullify an act of Congress, or of the president, as unconstitutional. Congress can nullify the powers of the Court by restricting its appellate jurisdiction and by impeachment, and so on with many other nullifications.