Myth
Nullification is an effective and Constitutionally-legitimate approach to dealing with federal overreach.
Fact
Nullification is extra-Constitutional and the states have no way under the current Constitution to effectively nullify federal law. Federal law stays on the books until Congress repeals it or the Supreme Court rules it unconstitutional.
Virginia and Kentucky Resolutions
Nullification proponents believe that the theory is legally sound and constitutionally consistent, and they point to the Virginia and Kentucky resolutions of 1798 as the basis for that claim.
This sounds persuasive until you realize that none of the other 14 states concurred with these resolutions. And if indeed all governments rest on opinion (Fed 49), then the shared opinion of those 14 states communicates a clear rebuke of the idea of nullification.
Listen to how some of those states did respond though...
Rejected by New Hampshire
the state legislatures are not the proper tribunals to determine the constitutionality of the laws of the general government
Rejected by New York
The New York Senate said nullification was
no less repugnant to the Constitution of the United States ... than destructive to the federal government
Rejected by Massachusetts
Massachusetts not only rejected the idea of nullification. It even went on to offer the preferred, constitutional remedy - Article V
the people ... have not constituted the state legislatures the judges of the acts or measures of the federal government, but have confided to them the power of proposing such amendments of the Constitution as shall appear to them necessary to the interests, or conformable to the wishes, of the people whom they represent.
source: http://oll.libertyfund.org/titles/1908#Elliot_1314-04_1796
Nullification : extra-Constitutional
Madison says nullification is extra-Constitutional and also identifies amendments as the proper, constitutional remedy
“It is no less certain that other means might have been employed which are strictly within the limits of the Constitution. The legislatures of the states might have made a direct representation to Congress, with a view to obtain a rescinding of the two offensive acts; or they might have represented to their respective senators in Congress their wish that two thirds thereof would propose an explanatory amendment to the Constitution; or two thirds of themselves, if such had been their opinion, might, by an application to Congress, have obtained a convention for the same object.”
Source: Madison’s Report on the Virginia Resolutions (1800)
http://oll.libertyfund.org/titles/elliot-the-debates-in-the-several-state-conventions-vol-4#Elliot_1314-04_2104
Nullification : like poison
Madison likened nullification to a poison
"In a word, the nullifying claims if reduced to practice, instead of being the conservative principle of the Constitution, would necessarily, and it may be said obviously, be a deadly poison."
Source: http://oll.libertyfund.org/titles/1940#Madison_1356-09_1640
Interposition as a collective right, not an individual right
Madison believed interposition had to be used collectively with other states. It was not the right of an individual state.
In the first place, it conforms to the resolution in using the term which expresses the interposing authy of the States, in the plural number States, not in the singular number State. It is indeed impossible not to perceive that the entire current & complexion of the observations explaining & vindicating the resolns. imply necessarily, that by the interposition of the States for arresting the evil of usurpation, was meant a concurring authy. not that of a single state; whilst the collective meaning of the term, gives consistency & effect to the reasoning & the object.
Source: Madison
http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836#Madison_1356-09_1648
Nullification : Powder under the Constitution
Madison once likened nullification to putting gun powder under the Constitution and then giving everyone a match.
“On the other hand what more dangerous than nullification, or more evident than the progress it continues to make, either in its original shape, or in the disguises it assumes. Nullification has the effect of putting powder under the Constitution and Union, and a match in the hand of every party to blow them up at pleasure”
Source: Madison to Edward Coleshttp://rotunda.upress.virginia.edu/founders/default.xqy?keys=FOEA-print-02-02-02-3022&printable=yes
Nullification : less legitimate than secession
Madison even believed that secession was more appropriate than nullification. He talks about
... the rightful remedy of a state in an extreme case to be a separation from the Union, not a resistance to its authority while remaining in it...
Source: Madison
http://oll.libertyfund.org/titles/madison-the-writings-vol-9-1819-1836#lf1356-09_footnote_nt_171
