"The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite." - James Madison, Federalist 45

Recent debates over sweeping new federal laws have re-ignited old quarrels concerning the proper constitutional role of the federal government and the rights and reserved powers of the states. As a case-in-point, on February 1, 2007, the Montana State House of Representatives unanimously passed two bills condemning the federal REAL ID Act as an improper use of federal legislative power. Both bills were designed to exempt Montana from the Act; however, the bill introduced by Representative Diane Rice of Harrison, Montana, went a step further, stipulating that, "the legislature of the state of Montana hereby nullifies the REAL ID Act of 2005, as it would apply in this state".

Read that again: "The legislature of the state of Montana hereby nullifies the REAL ID Act". Nullifies. Hmmm, there's a word we haven't seen in awhile, and with good reason. You see, the word "nullify" like its conceptual kissing cousins "secession," "states rights," "delegated powers," and sometimes even "Constitution" belongs to a special class of political four-letter words, so called for the reason that they are verboten in polite conversation amongst the political mainstream. In that parlance, they are akin to the type of words that self-conscious adults tend to spell-out in front of small children so as to avoid embarrassment, and are allowed to be spoken only in a historical context, and only when accompanied by an obviously derisive tone of voice.

For this reason it's understandable that the use of this little three-syllable word "nullify" will make some people skittish. Like a hand-grenade, the word is small but loaded with explosive potential, enough even to cow some otherwise hardy and ruggedly individualistic Montanans. According to Missoulanews.com, Hal Harper, an advisor to Montana governor Brian Schweitzer, downplayed the significance of the word 'nullify' when commenting on Diane Rice's bill, stating that it "is simply a synonym for 'repeal' and carries little significance beyond demanding that the federal government reverse its law." Technically, what Harper says is true; the word "nullify" can be used as a synonym for "repeal," although that is not its primary meaning, and its use in this context is rather dubious. To see what I mean, try using 'repeals' in place of 'nullifies' in the sentence that I quoted from Ms. Rice's bill. When you do this, you get: "the legislature of the state of Montana hereby repeals the REAL ID Act of 2005." Nope, I'm sorry, Hal, but this doesn't work. Montana didn't pass the REAL ID Act, so it can't very well repeal it; and nowhere in Ms. Rice's bill do I see any call for the federal government to "reverse its law". The bill simply states that the REAL ID Act "is inimical to the security and well-being of the people of Montana, will cause unneeded expense and inconvenience to those people, and was adopted by the U.S. congress in violation of the principles of federalism contained in the 10th amendment to the U.S. constitution," and that the state "nullifies" it "as it would apply in this state."

This language seems pretty clear to me. Ms. Rice's bill says that Montana doesn't like the REAL ID Act, doesn't think it's constitutionally sound, and won't have anything to do with it. End of story.

But a state can't do that...can it?

Most of us have been taught the idea that nullification, like secession, is unconstitutional; and further, that it is a discredited political doctrine. The federal government is absolutely supreme, thus the states are subordinate entities that must obey federal edicts -- this is the reigning dogma in American politics, and one of the pernicious ideas that the elites are laboring to teach to school children. If you ask for proof, the supporters of this dogma (generally federal officials and those who benefit from the favor of same - surprise, surprise) will usually throw a quote from Abe Lincoln at you and tell you that ideas like nullification and secession died at Appomattox, Virginia in 1865. Why? Well, because that's the place where Lincoln and those who supported his authoritarian ideals finally wore down those who disagreed, and forced their surrender on the battlefield. Thus, nullification and secession are 'discredited' political doctrines largely for the same reason that your claim to your wallet can be 'discredited' by a mugger in an alley. Ask Rush Limbaugh if you don't believe me. "Might makes right" is the most sophisticated reason an authoritarian needs to do anything, although the idea tends to sell better if he wraps it in Old Glory and calls it "patriotism," while simultaneously demonizing his opposition as "anarchists" and/or "anti-American."

However, others of a less philosophically rigid sort understand that physical force cannot discredit an idea, and it is for their benefit that I offer the following discussion:

What is Nullification?

From the Random House Unabridged Dictionary:

Nullify - (verb)

1. to render or declare legally void or inoperative: to nullify a contract. 2. to deprive (something) of value or effectiveness; make futile or of no consequence.

Thus, when a state 'nullifies' a federal law, it is proclaiming that the law in question is void and inoperative, or 'non-effective', within the boundaries of that state; or, in other words, not a law as far as the state is concerned.

A Short History of Nullification

Nullification has a long and interesting history in American politics, and originates in the Virginia and Kentucky Resolutions of 1798. These resolutions, secretly authored by Thomas Jefferson and James Madison, asserted that states, as sovereign entities, could judge for themselves whether the federal government had overstepped its constitutional bounds, to the point of ignoring federal laws. Virginia and Kentucky passed the resolutions in response to the federal Alien and Sedition Acts, which provided, in part, for the prosecution of anyone who criticized Congress or the President of the United States. Other instances followed, most famously in 1833, when South Carolina nullified the federal Tariff of 1828, which it deemed to be unconstitutional because it was specifically a protective tariff, not a revenue tariff. This act of nullification created a conflict between South Carolina and President Andrew Jackson, and nearly led to war before a compromise tariff was adopted. And lest it be assumed that nullification and state sovereignty were political doctrines unique to the Southern states, it should also be noted that there were times when the Northern states also asserted them (in particular, see the Hartford Convention of 1814 and the various "personal liberty laws" that Northerners enacted in defiance of federal fugitive slave laws).

And now, with that short introduction out of the way, let's get to the meat of the issue.

Is Nullification Constitutional? Compact Theorists versus Nationalists

In his opposition to South Carolina's decision to nullify the Tariff of 1828, Andrew Jackson denounced the idea that a state could "annul a law of the United States," arguing that nullification was "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed." Senator Daniel Webster of Massachusetts agreed with Jackson in 1833, as did Abraham Lincoln in 1861. These men were nationalists. They believed that the Constitution of the United States had formed a consolidated nation-state, not a confederation, and thus they held to the idea that the Union was sovereign over the states. They also believed that the Constitution had been established among the "people of the United States" in the aggregate sense, not amongst the states themselves, and thus it was not a compact (or agreement) as the Jeffersonians contended.


It follows logically that if a government is empowered to do only certain things, and is forbidden from doing anything else, that any attempts made by that government to reach beyond the scope of its rightful powers are illegitimate. Laws enacted on that basis are, therefore, not laws at all, but are "acts of usurpation," as Alexander Hamilton phrased it. It also follows logically that if a state has rights and powers that are reserved for its exclusive use, it must also possess the natural right to defend those rights and powers. This is the underlying justification for nullification. It is, in essence, an act of self defense on the part of a state, whereby it seeks to protect its reserved rights and powers from being overthrown by a usurper, and is, contrary to the ravings of the nationalists, both logically, morally, and constitutionally consistent. States are required to yield to federal authority only in those instances where the Constitution clearly states that such-and-such falls within the federal realm, such as the power to declare war, make treaties, etc. In all other instances (save only if the Constitution specifically forbids them from doing something) they are free to act as they please.

In light of this, Andrew Jackson's assertion that nullification is "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed," is 180 degrees south of the truth. Nullification is entirely compatible with the existence of the Union because it finds its justification on the very foundation of the Union: the related principles of delegated authority and the separation of powers. It is not contradicted by the letter of the Constitution, in either an express or implied manner; however, federal usurpation is expressly prohibited by Amendments 9 and 10, and also by Article VI, which requires that all federal and state legislators, executives and judges pledge to uphold the Constitution (including its limited grants of power) by "oath or affirmation". It is absolutely authorized by the Constitution's "spirit," which rests in respect for the law and the separation of powers, and is perfectly consistent with every principle upon which the Constitution was founded. The "great object" for which the Union was formed was, in the words of James Madison (see Federalist 14), to serve as:
Our bulwark against foreign danger, as the conservator of peace among ourselves, as the guardian of our commerce and other common interests, as the only substitute for those military establishments which have subverted the liberties of the old world, and as the proper antidote for the diseases of faction, which have proved fatal to other popular governments. . .

Far from being a discredited political doctrine, nullification is, in actuality, a constitutionally consistent principle whereby sovereign states can defend their reserved rights and powers from federal acts of usurpation, most of which are motivated by partisan politics and power scheming. It is in every way consistent with the Constitution's fundamental principles, most notably the concepts of delegated powers and the separation of powers. Indeed, it should be recognized that it is not so much a state that nullifies a federal law or act, as it is the Constitution that does so, in that the Constitution limits what the federal government may rightfully do. Viewed in that light, nullification is really nothing more than a state saying to the federal government, "The Constitution does not authorize you to do this, therefore, we are not obligated to submit to you in this matter, and are choosing not to do so."

The REAL ID Act of 2005 is plainly and simply unconstitutional, and therefore an act of usurpation. The Constitution does not grant the federal government power to dictate state driver licensing requirements, nor does it allow Washington to force Americans to carry 'papers'. If the State of Montana decides to nullify this so-called 'law', it will have every right to do so. I would even go so far as to argue that it would have the duty to do so, given that Montana's elected officials are sworn to uphold the Constitution of the United States, of which the REAL ID Act is a naked violation.

Consequently, to Hal Harper and others who may have their doubts, I would say, stand up for yourselves with pride and assert your rights. Far too often these days, the federal government forgets that it is a servant tasked with certain limited duties, not an omnipotent master; and it is high time that it was put in its place -- while such is still possible. Benjamin Franklin once said, "We have given you a Republic, if you can keep it." Simply put, nullification is all about "keeping it".