It may have occurred to those visiting this site, and who have never before been exposed to its ideas and goals, that there is no precedent for the states to nullify a federal law (declare it void or unconstitutional). But there is!
In June-July of 1798, the Congress passed what are known collectively as the "Alien and Sedition Acts." The Sedition Act made it illegal to publicly criticize the government or government officials. As an obvious restriction on free speech, in violation of the First Amendment, The Sedition Act was the most controversial of the Acts.
Recognizing The Alien and Sedition Acts as unconstitutional, Thomas Jefferson, then Vice-president of the United States, and James Madison assisted Kentucky and Virginia, respectively, to void The Acts within their borders. Jefferson drafted resolutions against The Acts for the Kentucky legislature. Madison likewise drafted resolutions against The Acts for the Virginia legislature. In November, the Kentucky legislature passed Jefferson's resolutions declaring the Acts void, and in December the Virginia legislature passed Madison's, declaring the Acts unconstitutional.
Here is a portion of the Kentucky resolution (emphasis added):
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 administer 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 color 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 so ever offered, to violate that compact...
The states, Jefferson wrote, "have the unquestionable right to judge of [the Constitution's] infraction; and that a nullification, by [the states], of all unauthorized acts done under color of [the Constitution], is the rightful remedy." That's pretty strong language — "an unquestionable right" to be the judge; the "rightful remedy" being "nullification" of unconstitutional laws by the states. No equivocation there.
Above we see that Jefferson believed that a "silent acquiescence" to the unconstitutional Alien and Sedition acts was "highly criminal." The Kentucky legislature was duty-bound to act. The states today are no less duty-bound to act to restrain FedGov from acting unconstitutionally.
The Virginia Resolutions, written by James Madison (considered the "Father of the Constitution"), also in response to The Alien and Sedition Acts, made a similar declaration (emphasis added):
"The resolutions, having taken this view of the Federal compact [Constitution], proceed to infer that, in cases of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the States, who are parties thereto, have the right, and are in duty bound to interpose to arrest the evil, and for maintaining, within their respective limits, the authorities, rights, and liberties appertaining to them. ...The Constitution of the United States was formed by the sanction of the States, given by each in its sovereign capacity. It adds to the stability and dignity, as well as to the authority of the Constitution, that it rests on this solid foundation. The States, then, being parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal above their authority to decide, in the last resort, whether the compact made by them be violated; and, consequently, as parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition."
It is essential to liberty that people of conscience act when there are wrongs being perpetuated. Jefferson believed, as we do, that all branches of the Federal Government ("FedGov") are duty bound to follow the Constitution ("preserve, protect and defend" is the term used in federal oaths of office). but that no one branch is given, by the Constitution, any more power in that regard than any other.
In the wake of Marbury v Madison, Jefferson wrote, in a letter to Abigail Adams, "... the opinion which gives to the judges the right to decide what laws are constitutional, and what not, not only for themselves in their own sphere of action, but for the Legislature and Executive also, in their spheres, would make the judiciary a despotic branch." Simply put: if the Supreme Court has the power to say what is and is not constitutional, there is no limit to the court's power (and hence, to that of FedGov).
To John Cartwright Jefferson wrote in 1824, "But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? In cases of little importance or urgency, the prudence of both parties will keep them aloof from the questionable ground; but if it can neither be avoided nor compromised, a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
Again, we see clearly that Thomas Jefferson believed that the States have the right to be the arbiters of issues of constitutionality.
From James Madison's Virginia resolution: (emphasis added)
That this Assembly doth explicitly and peremptorily declare, that it views the powers of the federal government, as resulting from the compact, to which the states are parties; as limited by the plain sense and intention of the instrument constituting the compact; as no further valid that they are authorized by the grants enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights and liberties appertaining to them.
As you can see, the Virginia resolution went so far as to explain why the acts are unconstitutional — in the one case, the law exercises powers "no where delegated to the federal government" within the Constitution and in the other, not only is the power not delegated to FedGov, it is "expressly and positively forbidden by one of the amendments" to the Constitution. Here, the reference is to the First Amendment which protects the right of free speech.
These are not the only cases of states nullifying federal laws but they involve the persons of Thomas Jefferson and James Madison — two men who can hardly be considered crackpots — and thus lend credulity to our own efforts here at Take Back The Power.
We can only marvel that no states stepped forward to nullify the McCain-Feingold act which prohibited certain political speech before elections. Though its constitutionality was challenged, the Supreme Court found it mostly constitutional. What do you suppose Jefferson would have thought of a law which prohibits advocacy groups from speaking out just before elections?
The power of nullification is real and belongs to the states. That more states do not exercise it is likely simply a question of education. A great many legislators are lawyers. Lawyers are all taught "constitutional law" according to the Supreme Court in law school. They likely accept this unquestioningly. Our goal is to educate state legislators about this vastly under-used state power.
"The question whether the judges are invested with exclusive authority to decide on the constitutionality of a law has been heretofore a subject of consideration with me in the exercise of official duties. Certainly there is not a word in the Constitution which has given that power to them more than to the Executive or Legislative branches."
Thomas Jefferson to W. H. Torrance, 1815
"But the Chief Justice says, 'There must be an ultimate arbiter somewhere.' True, there must; but does that prove it is either party? The ultimate arbiter is the people of the Union..."
Thomas Jefferson to William Johnson, 1823
"But, you may ask, if the two departments [i.e., federal and state] should claim each the same subject of power, where is the common umpire to decide ultimately between them? ... a convention of the States must be called to ascribe the doubtful power to that department which they may think best."
Thomas Jefferson to John Cartwright, 1824
"Power concedes nothing without a demand. It never did and it never will."