Nullifying Amendments: States' Power Vs. Constitution

The Constitution of the United States is a powerful document that outlines the nation's fundamental laws and principles. Since its inception, it has been amended numerous times to reflect the evolving nature of American society. While the process of amending the Constitution is complex and requires the approval of a significant portion of Congress and the states, it is possible for states to play a role in this process. One concept that has emerged is nullification, where a state may declare a federal law unconstitutional and void within its borders. This idea stems from the belief that states possess the inherent right to judge compliance with the Constitution, which they view as a compact between the states and the federal government. While nullification has been attempted by states in the past, its legality remains a subject of debate, with the Supreme Court rejecting such attempts in certain instances. The process of amending the Constitution and the concept of nullification highlight the delicate balance of power between the states and the federal government in shaping the nation's laws.

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The Supreme Court's rejection of state nullification attempts

Nullification is the constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. The Supreme Court has repeatedly rejected nullification attempts, upholding the principle of federal supremacy and asserting its authority as the final interpreter of the Constitution.

One notable example is Worcester v. Georgia (1832), where the Supreme Court rejected Georgia's attempt to nullify federal treaties with the Cherokee Nation. The Court held that authority over Indian affairs was committed exclusively to the federal government, and that Georgia's laws regulating Cherokee land were void as they contradicted these treaties.

In Ableman v. Booth (1859), the Supreme Court reinforced the supremacy of federal law when it rejected Wisconsin's attempt to nullify the Fugitive Slave Act. Chief Justice Roger B. Taney emphasized that states did not have the authority to nullify federal statutes or impede their enforcement, underscoring the importance of a unified national authority.

The Civil War ended most nullification efforts, but they resurfaced in the mid-20th century when southern states attempted to use nullification to resist school integration following the Brown v. Board of Education decision in 1954. In Cooper v. Aaron (1958), the Supreme Court once again rejected nullification, explicitly holding that states could not nullify federal law or the Court's rulings.

The Supreme Court's stance on nullification has been instrumental in shaping the relationship between federal and state authority. The Court's rejection of nullification attempts affirms that the power to interpret the Constitution and make final decisions about the constitutionality of federal laws rests with the federal judiciary, not the states.

State nullification supporters' arguments

Nullification supporters argue that the states' power to nullify federal laws is inherent in the nature of the federal system. Before the Constitution was ratified, the states were essentially separate nations. Under this theory, the Constitution is a contract or "compact" among the states, by which they delegated certain powers to the federal government while retaining all other powers for themselves. The states, as parties to the compact, have the inherent right to judge compliance with it. Thus, if the states determine that the federal government has exceeded its delegated powers, they may declare federal laws unconstitutional. This power to declare federal laws unconstitutional is inherent in the concept of state sovereignty and is one of the powers reserved for the states by the Tenth Amendment.

Nullification supporters point to historical examples to support their argument. For instance, in the 1820s, Georgia passed an act asserting its criminal law jurisdiction over Cherokee lands, effectively nullifying federal treaties with the Cherokees. While the Supreme Court reviewed the case and rejected Georgia's attempt to nullify the treaties, nullification supporters see this as an example of a state challenging federal law. Similarly, in 1807, several New England states objected to the Embargo Act, which restricted foreign trade. While these states did not directly nullify the act, they declared it unconstitutional and called on Congress to repeal it, demonstrating their belief in state sovereignty and the ability to reject federal laws they deem unacceptable.

Another argument in favour of state nullification is that it allows states to protect their citizens' rights and interests when they perceive federal overreach. States can act as a check on federal power and prevent the enforcement of laws that may infringe on states' rights or the rights of their citizens. This argument aligns with the belief in limited federal government and a preference for state-level decision-making.

Additionally, nullification supporters contend that the process of amending the Constitution is cumbersome and often unresponsive to the needs and desires of individual states. Amending the Constitution requires a two-thirds majority in Congress or a constitutional convention called for by two-thirds of the state legislatures. Achieving such majorities can be challenging, and the process may not adequately represent the diverse interests of all states. In contrast, nullification provides a more immediate and direct way for a state to reject or opt out of a federal law it finds objectionable.

Lastly, nullification supporters argue that the Tenth Amendment reinforces states' rights and their ability to nullify federal laws. The Tenth Amendment states that powers not delegated to the federal government by the Constitution are reserved for the states or the people. Therefore, if a federal law exceeds the powers delegated to the federal government, states have the right to declare it unconstitutional and refuse to enforce it within their borders. This interpretation of the Tenth Amendment forms a key pillar of the nullification doctrine.

State nullification in practice

Nullification is typically understood as a state's act of finding a federal law unconstitutional and declaring it void and unenforceable within its borders. It is argued by supporters of nullification that states possess the inherent right to judge compliance with the Constitution, as it is a "compact" between them, by which they delegated certain powers to the federal government while retaining all others for themselves. This interpretation holds that states may declare federal laws unconstitutional if they deem that the federal government has exceeded its delegated powers.

Nullification can be enacted by a single state, and it often makes the enforcement of the federal law in question illegal within that state. In practice, states have taken various actions to "interpose" when they have determined a federal law to be unconstitutional. These actions can include communicating with other states about the law, petitioning Congress to repeal it, introducing Constitutional amendments, or calling for a constitutional convention.

For example, in response to the Embargo Act of 1807, which restricted foreign trade, Massachusetts passed a resolution stating that the act was "unjust, oppressive, and unconstitutional" and called on Congress to repeal it. Connecticut went further, passing a resolution declaring the act unconstitutional and stating that state officials would not assist in its enforcement.

In another instance, Georgia passed an act asserting jurisdiction over Cherokee lands and declaring all laws of the Cherokee Nation void, effectively nullifying federal treaties with the Cherokees. The U.S. Supreme Court reviewed this case in Worcester v. Georgia (1832) and rejected Georgia's attempt to nullify federal law, stating that the state's act was "repugnant to a law of the United States, made in pursuance of the Constitution, and therefore void."

While nullification can be a powerful tool for states to protect their perceived rights and sovereignty, it is important to note that it does not supersede federal law. An act may be legal under state law but still be illegal under federal law, as seen in the case of states legalizing recreational marijuana use despite federal prohibition.

Additionally, it is worth noting that the process of amending the Constitution is outlined in Article V of the Constitution. Amendments can be proposed by Congress with a two-thirds majority in both houses or by a constitutional convention called for by two-thirds of the state legislatures. For an amendment to be ratified and become part of the Constitution, it must be approved by three-quarters of the states, either through their state legislatures or conventions.

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Interposition

> 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.

The Supreme Court and lower federal courts have consistently held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states. In Cooper v. Aaron, 358 U.S. 1 (1958), the Supreme Court explicitly rejected interposition.

There are various actions that a state might take to "interpose" once it has determined that a federal law is unconstitutional. These include communicating with other states about the unconstitutional law, attempting to enlist the support of other states, petitioning Congress to repeal the law, introducing Constitutional amendments in Congress, or calling a constitutional convention.

The process of amending the Constitution

A proposed amendment must first be passed by a two-thirds majority vote in both houses of Congress, or by a two-thirds majority of state legislatures calling for a national convention. This initial proposal is then sent to the state legislatures. For an amendment to be ratified, it must be approved by three-quarters of the state legislatures, or three-quarters of the states at a national convention. This process ensures that any changes to the Constitution reflect the will of the people and are widely supported.

The Constitution can be amended to adjust to changing times and maintain its relevance as a "living" document. Amendments can be added, changed, or repealed, provided that the established process of proposing and ratifying is followed. For instance, the 18th Amendment, which established Prohibition, was later repealed by the 21st Amendment, demonstrating the dynamic nature of the Constitution.

It is important to note that while states play a crucial role in the amending process, they do not have the power to nullify amendments or federal laws directly. Nullification is the act of a state declaring a federal law unconstitutional and unenforceable within its borders. While supporters of nullification argue that it is inherent in the federal system and a retention of state sovereignty, the Supreme Court has rejected attempts by states like Ohio and Georgia to nullify federal laws.

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