Is Corrective Action Possible Through Nullification?

Most Americans are disturbed by our out-of-control, overreaching federal government. The John Birch Society believes control can be imposed by nullification.

“Nullification” is refusing to enforce federal laws deemed to be unconstitutional by that Society. Their attitude is “If it isn’t in the constitution as written, we’re going to oppose it. We won’t abide by your new law. We will take a stand against a program that is not adhering to the intent of the original constitution.” So, states, and even individuals, using nullification are attempting to enforce the Constitution as written. This “enforcement” includes the nullification of all “duly enacted” federal laws, executive orders, actions, regulations, or court rulings that are not made in adherence to the Founders' Constitution. Proponents declare that nullification is not sedition, rebellion, or secession. Yet it certainly smacks of anarchy.

Unfortunately, through the years Supreme Courts have interpreted the constitution in ways that now allow rampant spending, undeclared wars, government agencies spying on the citizens, massive debt that will impose economic slavery on our children, rule by executive order, coercive medical insurance, and the rise of a dominating bureaucracy. So, nullifiers have a lot of work to do. Programs such as Social Security, the EPA, Medicare/Medicaid, the Department of Education, the Federal Reserve, the Department of Energy and many other federal agencies, are not enumerated in the Constitution. If nullification were powerful enough, its use would mean massive dismantling of programs entrenched in American society and considered essential to our existence by now.

Nullifiers reason that a state openly ignoring or refusing to enforce the dictates of programs will in some way help stop future transgressions. “State legislatures can phase out unconstitutional programs . . . Congress can complete the phasing out by repealing all federal and international agencies and programs that are not authorized by the Constitution.” Those promoting nullification hope to get enough “constitutionally aware” citizens putting pressure on state legislatures to eradicate by nullification. Many states do not agree to go along with the plan. 

Nullification is a bit like a child throwing a tantrum. There is a lot of noise and annoyance, but after things quiet down, Mom and Dad are still there. Nullifying a law or a program changes none of the underlying misuse and stretching of the Constitution. The President is still there with his telephone and a ball point, the bench will continue interpreting laws, many times with bias, and Congress can think up laws and then pass the job of writing complex details to unelected bureaucrats. Nothing much comes of these nullification efforts. They may seem emotionally satisfying, but lack clout. There are pockets of nullification scattered around the country, but not a massive, unified movement that changes the course of our government.

Nullification events supposedly send the message to Washington that states have a right to supersede federal law. However, courts at the state and federal level, including the U.S. Supreme Court, repeatedly have rejected the theory of nullification. The courts have decided that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws. So, there has never been a federal law overturned by this approach. This rejection by the courts ought to bring nullification to an end, but attempts to apply it still continue.

Lastly, it can be noted that nullification takes place after the fact in its attempt to produce change. It is reactive, not proactive, and does little to give direction to future legislation. A Convention of States Article V approach is in many ways the opposite. It uses the Constitution to insert amendments able to control government behavior and make needed changes in what leaders and their unelected staff members in all three branches can do. It is proactive, capable of making permanent change. Any amendment added to the original Constitution by this method will strongly reflect the will of the country.

For more about the Convention of States movement, please visit www.conventionofstates.com.