May 5, 2025
What can we do if Congress passes a bad law? For example, Congress mandates that billions of dollars be spent on aid programs to the Ukraine, the Middle East, and other troubled areas. Of course, we can protest or refuse to pay part of our taxes. But if you try that, the IRS will come after you. In this week's column, I'm going to talk about a remedy for such bad laws. States have the power to nullify unconstitutional laws, so they do not apply within that state. If the Alabama legislature, for example, nullified foreign aid, the people of Alabama couldn't be taxed for this purpose.
What is the evidence that a state can nullify an unconstitutional law? Let's look at an actual nullification, the Kentucky Resolution of 1799, written by the most libertarian of our founding fathers, Thomas Jefferson: "RESOLVED, That this commonwealth considers the federal union, upon the terms and for the purposes specified in the late compact, as conducive to the liberty and happiness of the several states: That it does now unequivocally declare its attachment to the Union, and to that compact, agreeable to its obvious and real intention, and will be among the last to seek its dissolution: That if those who administer the general government be permitted to transgress the limits fixed by that compact, by a total disregard to the special delegations of power therein contained, annihilation of the state governments, and the erection upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction contended for by sundry of the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism; since the discretion of those who adminster the government, and not the constitution, would be the measure of their powers: That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those sovereignties, of all unauthorized acts done under colour of that instrument, is the rightful remedy: That this commonwealth does upon the most deliberate reconsideration declare, that the said alien and sedition laws, are in their opinion, palpable violations of the said constitution; and however cheerfully it may be disposed to surrender its opinion to a majority of its sister states in matters of ordinary or doubtful policy; yet, in momentous regulations like the present, which so vitally wound the best rights of the citizen, it would consider a silent acquiescence as highly criminal: That although this commonwealth as a party to the federal compact; will bow to the laws of the Union, yet it does at the same time declare, that it will not now, nor ever hereafter, cease to oppose in a constitutional manner, every attempt from what quarter soever offered, to violate that compact."
You might object that the Supreme Court, not the states, has the power to declare a law unconstitutional. This objection is wrong. There is nothing in the Constitution that gives the Supreme Court the sole say on this matter. This objection is wrong as the great Tom DiLorenzo, the president of the Ludwig von Mises Institute, explains: "Thomas Jefferson was alarmed during his day of the threat of judicial tyranny. He feared that it could turn the Constitution into 'a thing of wax' that could be 'twisted into any form' (Letter to Judge Spencer Roane, Nov. 1819). Unlike congressmen and presidents, Jefferson noted, federal judges are 'more dangerous [to liberty] as they are in office for life' (Letter to a Mr. Jarvis, Sept. 1820). The federal judiciary, said Jefferson, was 'the subtle corps of sappers and miners constantly working underground to undermine our Constitution...' (Letter to Thomas Ritchie, Sept. 1820). Jefferson reminded anyone who inquired that the Constitution does not give the judiciary the sole right to interpret the Constitution. The executive and congressional branches, 'in their own spheres,' have equal rights, he said. As president, Jefferson freed everyone imprisoned by the Adams administration's Sedition Act which made free political speech illegal. 'I discharged every person under punishment or prosecution under the Sedition Law," he said, "because I considered... that law to be a nullity.' The 'supreme' court 'Judges, believing the law constitutional, had a right to pass a sentence of fine and imprisonment, because the power was placed in their hands.... But the executive, believing the law to be unconstitutional, was bound to remit the execution of it' (The Political Writings of Thomas Jefferson, p. 154). 'The judiciary bodies were supposed to be the most helpless and harmless members of the government' (Letter to A. Coray, Oct. 31, 1823). Experience has shown, however, that 'they were to become the most dangerous,' especially because impeachment was so scarce. Yes, government lawyers with lifetime tenure did usurp powers not given to them by the Constitution when they began pretending that they somehow were given a monopoly of constitutional interpretation, but this idea was strongly opposed for generations by Americans in every state. The Jeffersonian position on judicial tyranny prevailed, in other words. In addition to the congress and the executive branch having the right and power to make constitutional interpretations, Jefferson said that 'I know of no safe depository of the ultimate powers of the society but the people themselves,' organized in political communities at the state and local levels (The Political Writings of Thomas Jefferson, p. 154)."
James Jackson Kilpatrick published a great book on this topic The Sovereign States, back in the 1950s. In a review of the book written in 1957, the renowned Southern historian C. Vann Woodward, acknowledged that Kilpatrick had a strong case: "Mr. Kilpatrick has no difficulty in mustering great numbers of instances in which states have imposed a check or a veto upon Federal encroachments. These 'interpositions' range from mild remonstrance to stern nullification. It is also a simple matter for him to demonstrate that 'States' rights is not a doctrine peculiar to the South' and to show that every region and just about every state in the Union has at one time or another challenged or vetoed Federal authority. He calls the roll of 'fourteen respected and honored Northern States engaged in this prolonged and generally successful interposition of their sovereign powers' against fugitive slave laws, and adds the names of twenty-two Northern states who took action against the Supreme Court's Dred Scott decision. His favorite argument is tu quoque: 'This is what you said then, gentlemen,' or 'This is Massachusetts speaking,' or Wisconsin or Ohio. It is true that Mr. Kilpatrick derives most of his comfort from the period before the Civil War. More than two-thirds of his book is devoted to that period and 
half of that to the 1790's, when the great Virginia champions of state sovereignty were in full voice. But he will not agree with Chief Justice Chase that 'the victory of the North killed State sovereignty' nor concede that Lee surrendered the Tenth Amendment as well as his army at Appomattox. Thirty-five years ago Professor Arthur M. Schlesinger published an article on 'The State Rights Fetish' in which he demonstrated that every political party in our history has appealed to the doctrine when out of power and renounced it upon gaining power, and that states and regions have left the same record of inconsistency. He concluded that 'The state rights doctrine has never had any real vitality independent of underlying conditions of vast social, economic or political significance.' Of course this is true, but it is not really very helpful. The point is the doctrine demonstrably does have vitality when the 'underlying conditions' are right."
We need only one step more in our argument. We may think that foreign aid programs are bad, but are they unconstitutional? Of course they are. There is nothing in the Constitution that gives Congress the power to spend money in this way. Let's do everything we can to encourage nullification!