Idaho Resurrects Discredited Idea Of Nullification In Health Care Reform Battle

Republicans in Idaho are talking about resurrecting the foolish and discredited idea of nullification as a weapon in the fight against ObamaCare.

The new Republican leaders in Idaho are reaching into the dustbin of history in an effort to take down the Affordable Care Act:

After leading the nation last year in passing a law to sue the federal government over the health care overhaul, Idaho’s Republican-dominated Legislature now plans to use an obscure 18th century doctrine to declare President Barack Obama’s signature bill null and void.

Lawmakers in six other states – Maine, Montana, Oregon, Nebraska, Texas and Wyoming – are also mulling “nullification” bills, which contend states, not the U.S. Supreme Court, are the ultimate arbiter of when Congress and the president run amok.

It’s a concept that’s won favor among many tea party adherents who believe Washington, D.C., is out of control.

Though a 1958 U.S. Supreme Court decision reaffirmed that federal laws “shall be the supreme law of the land,” Gov. C.L. “Butch” Otter is promoting the idea, too. In his January 10 State of the State speech, he told Idaho residents “we are actively exploring all our options – including nullification.”

Writing over at Hot Air, Howard Portnoy approves of the idea and asserts that it has its roots in the Founders themselves:

The doctrine, known as nullification, has its roots in the brand of governance practiced by the nation’s founding fathers. It was used as early as 1799 by then-law professor Thomas Jefferson, who wrote in a response to federal laws passed amid an undeclared naval war against France that

nullification, by those sovereignties, of all unauthorized acts … is the rightful remedy.

As a legal theory, nullification is grounded in the assumption that states, and not the U.S. Supreme Court, are the ultimate arbiter in cases where Congress and the president have “run amok.”

The problem with Portnoy’s analysis, and with the arguments being raised in Idaho and elsewhere, is that they tend to get both the history and the Constitution completely wrong. Let’s start, as always, at the beginning.

When President John Adams persuaded Congress to pass The Alien and Sedition Acts, Thomas Jefferson, who at that point was serving as Adams’s Vice-President, and James Madison, worked together to draft and ensure the passage of the Kentucky and Virginia Resolutions, resolutions passed by the state legislatures of Virginia and Kentucky to condemn laws which Adams’s opponents viewed as both unconstitutional and near-dictatorial.

The resolutions — which you can read here, here, and here — are interesting in themselves because they contain one of the first post-ratifications statements by American leaders of what they believed the Constitution to mean, as this excerpt from the Kentucky Resolution of 1798 shows wonderfully:

2. Resolved, That the Constitution of the United States having delegated to Congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the laws of nations, and no other crimes, whatsoever; and it being true, as a general principle, and one of the amendments to the Constitution having also declared, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people,”—therefore, also, the same act of Congress, passed on the 14th day of July, 1798, and entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States;’” as also the act passed by them on the 27th day of June, 1798, entitled “An Act to punish Frauds committed on the Bank of the United States,” (and all other their acts which assume to create, define, or punish crimes other than those so enumerated in the Constitution,) are altogether void, and of no force; and that the power to create, define, and punish, such other crimes is reserved, and of right appertains, solely and exclusively, to the respective states, each within its own territory.

3. Resolved, That it is true, as a general principle, and is also expressly declared by one of the amendments to the Constitution, that “the powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people;” and that, no power over the freedom of religion, freedom of speech, or freedom of the press, being delegated to the United States by the Constitution, nor prohibited by it to the States, all lawful powers respecting the same did of right remain, and were reserved to the states, or the people; that thus was manifested their determination to retain to themselves the right of judging how far the licentiousness of speech, and of the press, may be abridged without lessening their useful freedom, and how far those abuses which cannot be separated from their use, should be tolerated rather than the use be destroyed; and thus also they guarded against all abridgment, by the United States, of the freedom of religious principles and exercises, and retained to themselves the right of protecting the same, as this, stated by a law passed on the general demand of its citizens, had already protected them from all human restraint or interference; and that, in addition to this general principle and express declaration, another and more special provision has been made by one of the amendments to the Constitution, which expressly declares, that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof, or abridging the freedom of speech, or of the press,” thereby guarding, in the same sentence, and under the same words, the freedom of religion, of speech, and of the press, insomuch that whatever violated either throws down the sanctuary which covers the others,—and that libels, falsehood, and defamation, equally with heresy and false religion, are withheld from the cognizance of federal tribunals. That therefore the act of Congress of the United States, passed on the 14th of July, 1798, entitled “An Act in Addition to the Act entitled ‘An Act for the Punishment of certain Crimes against the United States,'” which does abridge the freedom of the press, is not law, but is altogether void, and of no force.

That’s mighty strong language. Stronger, some would say, than the laws that a few states have passed since last year challenging the Federal Government’s authority to require Americans to purchase health insurance. However, it’s worth noting what Madison and Jefferson were not doing, because as Madison acknowledged in his defense of the resolutions, there is no Constitutional authority granted to the states that would allow them to nullify a Federal law:

Nor can the declarations of either [the citizens or the legislature of Virginia], whether affirming or denying the constitutionality of measures of the Federal Government, or whether made before or after judicial decisions thereon, be deemed, in any point of view, an assumption of the office of the judge. The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force. The former may lead to a change in the legislative expression of the general will; possibly to a change in the opinion of the judiciary; the latter enforces the general will, whilst that will and that opinion continue unchanged.

And if there be no impropriety in declaring the unconstitutionality of proceedings in the Federal Government, where can be the impropriety of communicating the declaration to other states, and inviting their concurrence in a like declaration? What is allowable for one, must be allowable for all; and a free communication among the states, where the Constitution imposes no restraint, is as allowable among the state governments as among other public bodies or private citizens. This consideration derives a weight, that cannot be denied to it, from the relation of the state legislatures to the federal legislature, as the immediate constituents of one of its branches. . . .

Considering that this was written by a man who was both one of the principle authors of the Constitution and one of the authors of the Resolutions, it seems to me that it is fairly persuasive evidence that, whatever else the Tenth Amendment might mean, the Founders never intended to give the individual states the power to nullify state laws.  Moreover, as Phineas notes in his post on this topic over at Sister Toldjah’s blog, Virginia and Kentucky were the only states in the Union at the time to take the position they did with regard to the Alien and Sedition Acts. Of the sixteen states in the Union at the time, 14 of them refused to go along with their sister states denunciation of the President (it’s worth noting that this was occurring at a time when America’s first political parties were forming so opinion on the Acts was divided on a partisan basis for the most part). In fact, it is quite likely that without the personal intervention of Jefferson and Madison neither Virginia nor Kentucky would’ve taken any action at all. Finally, it’s worth noting that the Resolutions occurred in the era before Marbury v. Madison when it was unclear who, if anyone, had the authority to declare a law unconstitutional.

In the years after the Resolutions, nullification came to mean something entirely different from what Jefferson and Madison had in mind, and it became associated some rather nefarious causes. The most notable example came during the Nullification Crisis of 1832, when South Carolina purported to declare a Federal import tariff unconstitutional and took steps to prevent Federal agents from collecting tariffs on goods entering through the Port of Charleston. Though the matter was resolved, it set the nation down a road toward secession that resulted in the bloodiest war in American history. After the Supreme Court’s decision in Brown v. Board of Education, ten Southern states used the doctrine of nullification, and the related concept of interposition, to attempt to resist efforts desegregate school and refuse to enforce the Court’s decision. In Cooper v. Aaron, the Supreme Court held that such efforts were unconstitutional:

Article VI of the Constitution makes the Constitution the “supreme Law of the Land.” In 1803, Chief Justice Marshall, speaking for a unanimous Court, referring to the Constitution as “the fundamental and paramount law of the nation,” declared in the notable case of Marbury v. Madison, 1 Cranch 137, 177, that “It is emphatically the province and duty of the judicial department to say what the law is.” This decision declared the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution, and that principle has ever since been respected by this Court and the Country as a permanent and indispensable feature of our constitutional system. It follows that the interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land, and Art. VI of the Constitution makes it of binding effect on the States “any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Every state legislator and executive and judicial officer is solemnly committed by oath taken pursuant to Art. VI, cl. 3, “to support this Constitution.” Chief Justice Taney, speaking for a unanimous Court in 1859, said that this requirement reflected the framers’ “anxiety to preserve it [the Constitution] in full force, in all its powers, and to guard against resistance to or evasion of its authority, on the part of a State . . . .” Ableman v. Booth, 21 How. 506, 524.

No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it. Chief Justice Marshall spoke for a unanimous Court in saying that: “If the legislatures of the several states may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those judgments, the constitution itself becomes a solemn mockery . . . .” United States v. Peters, 5 Cranch 115, 136. A Governor who asserts a [358 U.S. 1, 19] power to nullify a federal court order is similarly restrained. If he had such power, said Chief Justice Hughes, in 1932, also for a unanimous Court, “it is manifest that the fiat of a state Governor, and not the Constitution of the United States, would be the supreme law of the land; that the restrictions of the Federal Constitution upon the exercise of state power would be but impotent phrases . . . .” Sterling v. Constantin, 287 U.S. 378, 397 -398.

Nullification is a concept that has no basis in history, and it is a perversion of what the Constitution says. If it existed, we would no longer live in a Federal system, but in something more closely resembling the Articles of Confederation. Since the Constitution was written to replace the Articles, it’s clear that the Founders never intended to give the states the power to decide for themselves what the Constitution means and to randomly choose to ignore Federal laws based on that interpretation. This is a bad idea, and Idaho would be wise to abandon it.

FILED UNDER: Law and the Courts, US Politics, , , , , , , , , , , , , , , , , , , , ,
Doug Mataconis
About Doug Mataconis
Doug Mataconis held a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020. He passed far too young in July 2021.


  1. Chad S says:

    Some of these govs also believe that if enough states sue the Federal gov over a law, it automatically is nullified…but they can’t explain where exactly in the Constitution that is(but they’re sure its in there).

    All this is going to do is clog the fed courts up with futile cases.

  2. Loviatar says:

    Why do you keep calling the “Affordable Care Act:” ObamaCare?

    It has a proper name, if Affordable Care Act: is too long for you to spell out, why don’t you call it ACA for short?

    When I was growing up it was called common courtesy to call things and people by their given names but now I guess its too politically correct.

  3. Because it is convenient shorthand and typing “Patient Protection And Affordable Care Act” every time doesn’t make sense

    More explanation here:

  4. floyd says:

    Typical arguments like the one above
    Before the rape… “Don’t struggle, fighting the inevitable will only get you killed”.
    After the rape…… Why didn’t you fight… you must have wanted it!

    Chad S;
    Like Roe V Wade, maybe all we need a lame excuse and a court looking for one, heck they didn’t even need anyone of standing to bring the case.

  5. Patrick T. McGuire says:

    In the 60’s, there was an anti-war peace poster with the question “What if they gave a war and nobody came?”. That anti-war movement continued to grow in numbers until it was credited with bringing down the presidency of LBJ.

    Today, the question is “What if they passed a law and nobody obeyed?” This movement too is growing just as the anti-war movement of the 60’s and if it continues to grow at the same rate, it will not only bring down the presidency of Obama but could even endanger the cohesion of the nation.

  6. anjin-san says:

    > Today, the question is “What if they passed a law and nobody obeyed?”

    Yes, because being drafted and forced to go kill and be killed by people who were no threat to our country is pretty much the same thing as making sure people have adequate health care…

  7. anjin-san says:

    Floyd let me ask you something.

    God forbid, someone you love dearly suffers a catastrophic accident or illness. A wife or child perhaps. Your financial resources simply cannot provide the necessary care.

    When this becomes painfully clear, do you refuse government assistance because of your principles?

  8. Tano says:

    “This movement too is growing…”

    Actually, its not. LINK

    If you take into account those who oppose the PPACA from the left, for not doing enough, then the rightwing opposition is a distinct minority, and shrinking.

  9. Chad S says:

    Floyd: the courts aren’t going to rule that the states can supersede Federal law just because they don’t like a law that is federally passed.

  10. floyd says:

    Chad S;
    Your statement is likely true, Thus the option of the “lame excuse” to reach a desired conclusion. This avoids a violation of the Constitution, since it only says what they say it says.
    I guess it comes down to what the definition of is is.

  11. floyd says:

    They should have come up with an accurate name with an easy acronym, like…
    Socialized Health Initiative Tax… AKA………..
    That has a ring to it and it’s easy to remember, until then it’s ” Obamacare”

  12. wr says:

    Of course Floyd can’t and won’t answer Anjin’s question, preferring to make grade-school level potty jokes. Because of course he would do whatever he could to save his family or himself, even if that meant turning to the eeeevil government.

    This should come as no surprise. Just look at Zels living off unemployment while screaming about people who take money from the government.

    The Tea-types don’t want to shut down all government spending. They want to shut down government spending on everyone but them.

  13. floyd says:

    Why should anyone answer when you are there to presume?

    The clear answer to the impertinent question is… when I am forced , at gunpoint, to buy something…. What violation of principle is it to take what I have paid for, especially when the party holding the gun stole the better product which I previously possessed?

    Real life… A relative received goverment assistance for a condition for which a cure was available . He died having been denied anything more than comfort and pain control.

    You have no standing for criticism.
    In fact you seem more prone to answer for others and often make a point of evading direct questions while spouting derogatory epithets.

  14. floyd says:

    The point of the acroym comment was that the bill was improperly name, with the obvious purpose of obfuscation. It was poorly named as well without provision for an apropriate “nickname” or acroym.
    Nobody, of which I am aware, has ever refered to the “Social Security Act of 1965” as “Johnsoncare” because “Medicare” was an adequate and descriptive moniker.

  15. floyd says:

    My appologies for the off color humor if it offended your sensibilities….

    But “Johnson” really was the President in 1965, so it could “hardly” be avoided.

  16. anjin-san says:

    > The clear answer to the impertinent question is

    Why is it impertinent? The right does not like HCR? Fine. Present a realistic alternative. I have not heard one yet. And yes, I want to know if folks will practice their stated beliefs when push comes to shove. It’s one thing to play the proud self-sufficient freeholder when all is well, it is another thing entirely when reality intrudes and reminds us how thin the veneer of self reliance really is.

    > Real life… A relative received goverment assistance for a condition for which a cure was available . He died having been denied anything more than comfort and pain control.

    Real life. I have three relatives who are alive today because the government helped with their care.

  17. An Interested Party says:

    “The right does not like HCR? Fine. Present a realistic alternative.”

    Why should conservatives do that? Many of them already make it quite clear that they think the government has no business in health care and that the fabled free market is the answer to all our problems…

  18. Zelsdorf Ragshaft III says:

    Anjin, you forget what happens when you have spent all the money the government allows for that particular disaster. Pain pills instead of cancer treatment. You are a lop. Know what that is? Look in the mirror. No, not the one you line your coke up on. The one you use to pick your face.

  19. floyd says:

    It appears that you may consider a viable alternative to be an impossibility.
    The system in place would respond favorably to regulation. Alternatives have been discussed since before this behemoth bill was written.Of course, either none was realistic, or you weren’t listening.
    I see that you showed no interest in my answer,and apparently you only wanted a peripheral phrase to bitch about. This is why I initially refrained from a response.
    I notice WR isn’t putting words in your mouth or berating you for failure to respond .

  20. wr says:

    Floyd — You haven’t responded. At least, not in any way that answered the question. You spouted some gibberish about buying things at gunpoint. But you didn’t — because you can’t — answer the actual question — what would you do if someone you loved was dying and you couldn’t afford treatment? Would you let “the government” pay for the care, or would you let your loved one die so you could stand on principle?

    No guns here.

  21. Patrick T. McGuire says:

    “Yes, because being drafted and forced to go kill and be killed by people who were no threat to our country is pretty much the same thing as making sure people have adequate health care…”

    Oh no, didn’t you get the memo, we were fighting for our security, just like Obamacare will make sure people have adequate health care! LMAO

  22. floyd says:

    A lack of reading comprehension on your part, does not constitute a lack of response on my part. In Anjin-san’s hypothetical there was no violation of principle, as explained in my response.

  23. Steve Plunk says:

    Public policy should not be made based upon what individual choices might be. If it was we would all pay no taxes and be the recipients of government givaways. Policy is made based upon what is best for everyone and can be accomplished. A program that is not affordable is not the best for everyone. Especially our heirs.

  24. anjin-san says:

    > The system in place would respond favorably to regulation

    Perhaps. Sadly the GOP is pretty much owned by those who they would be regulating. I wonder who this “regulation” will favor – multi-billion dollar corporations or some poor sap who is just an honest guy trying to figure out how to get his family decent health care.

    Floyd, all you have shown here is that you once read Atlas Shrugged. Can you tell me who the hero of the story was? So far, not a single tea party type has been able to.

    The “gunpoint” thing is pretty weak. Death and taxes, you know. Are you arguing in favor of some fantasy right-wing society where there will be no taxes? Suggested reading, “Coventry” by Robert A. Heinlein. You kinda hafta read all his work, you can’t just cherry pick Starship Troopers…

  25. floyd says:

    I have never been a fan of Ayn Rand, and my last look at her work was more than 40years ago.I found her tedious at the time and uninspiring. As a child I found Kipling tedious as well but recently have found him brilliant. Would you suggest I revisit Rand? Perhaps I should, due to her modern influence.
    As a Christian I believe that the proper moral purpose of one’s life is rational self interest. My faith informs me that Love of God and and my neighbor is the fulfillment of the commandments, and that obedience to God is the ultimate in self interest.
    Where Rand and I differ is her claim that enlightened self interest is manifested through pursuit of ones own happiness. In my view happiness is merely a by-product of Obedience to God and it would be foolish to seek it as an independant object.
    Alas, I cannot recall the protagonist from a book read so long ago with so little interest, but since I have said repeatedly that I am no “tea party type”, it would prove nothing to seek the answer.
    I agree with your contention that taxes are inevitable.(death has been defeated)
    No tax would ever be collected if it were not confiscatory in nature,which justifies the “gunpoint” analogy. The point still stands that there is no violation of any principle of mine
    which prevents me from taking possession of a good which I have been forced to buy.
    I am not arguing for a fantasy “right-wing”society in which there are no taxes, nor do I argue for a fantasy left-wing society in which half the population pays nothing.
    We only differ in the degree of intrusion into private lives and fortunes which we deem justified. If an error must be made it should be in favor of restraint.
    Love Heinlein , and I understand why you commend me to “Coventry”.
    Star ship troopers was a lame movie but I have not read the story from which it was derived.

  26. floyd says:

    “Sadly the GOP is pretty much owned by those who they would be regulating.”

    Is it not so that the Democrats held sway in both houses and the executive branch preceeding the writing of the PPAACA? Would it not have been more expedient to address a few regulations (or even hundreds) rather than produce a 3800 page piece of legislation that has proven controversial even though few have read it… even to date?

  27. floyd says:


    It’s Dagney Taggert…. are you telling me that with all the “Wikipedia Intellectuals” commenting on the blogs, that there are no “Tea Party Types” among them?

  28. anjin-san says:

    Floyd. Sorry, wrong. It’s not DT. Thanks for playing. I suggest a re-read.

    > Would it not have been more expedient to address a few regulations (or even hundreds) rather than produce a 3800 page piece of legislation

    Absolutely. I would have preferred an incremental approach. But given the resolute opposition to any meaningful reform of health care on the part of the GOP, and the fact that they could only count on a majority in Congress for two years, how exactly was that supposed to work?

  29. anjin-san says:

    Not sure what the point of you Wikipedia reference is. I see they refer to Dagney Taggert as the protagonist, which is correct, but a protagonist is not necessarily the hero of a story. Reading a great book is a lot more rewarding if you think it though yourself instead of letting someone else tell you what it was about.

    Really, how is Dagney Taggert any different from Francisco d’Anconia, Hank Rearden, or Ragnar Danneskjold, aside from being a woman? They are all extraordinarily intelligent, capable and focused. So they are four people of similar gifts fighting essentially the same battle. What does Dagney do that differentiates her from the group? Nothing really, unless you count sleeping with Galt.

  30. floyd says:

    “how exactly was that supposed to work”
    I’m not exactly certain,but….
    From what I’ve heard , it’s a lot like watching sausage being made!

    Most regulatory changes can be made from the executive branch with very little for the Congress to do… certainly less than pushing through that massive 3800 page law, the passing of which sorta belies your claim of obstruction from the “Republicanic Party”

    I’m glad that DT was not the right answer, it just reenforces what I said about
    “Wikipedia Intellectuals”. Real knowledge is something quite different.
    Wikipedia does however claim that Dagney Taggert was the “protagonist” the fact that they were wrong is just icing on the cake.

    As I said … “Alas, I cannot recall the protagonist from a book read so long ago with so little interest,”

  31. anjin-san says:

    > Wikipedia does however claim that Dagney Taggert was the “protagonist” the fact that they were wrong is just icing on the cake.

    They are not wrong. Protagonist and hero are not necessarily the same thing.

  32. floyd says:

    ” Reading a great book is a lot more rewarding if you think it though yourself instead of letting someone else tell you what it was about.”
    This certainly is true but, whether it was “great” or not is, without a doubt, a subjective judgement.
    I don’t remember thinking so 40 years ago, and so have dismissed all but but vague impressions of Ayn Rand.
    I have so much to read, I wonder whether a reread would yield a better impression and thus be worth my time? Those Dr. Zues books on the end table is looking pretty tempting, I’m thinking Horton hears what he wants to hear and disregards the rest, and what about those Green Eggs and Ham? Anyway, my grandaughter this he’s the author of great books so…

  33. anjin-san says:

    I thought Atlas Shrugged was a great book, but more as a mystery story than a political statement. Just where the heck were all those CEO’s going?

    Just finished An Instance of the Fingerpost by Iain Pears, which I would call a great book.

    There is a non-political topic for OTB. Five great (non-political) books.

  34. anjin-san says:

    Floyd, you do realize, don’t you, that all your chatter about “forced at gunpoint” is pretty much straight out of Atlas Shrugged – a book you say you read decades ago and were not really impressed by.

    Yet you are serving up warmed over Rand as your political philosophy. Ah, the perils of outsourcing…

  35. floyd says:

    So she agrees with me on a couple of points, that doesn’t make her a groupy, does it?
    Afterall she is older than me and probably never read anything that I have written.

  36. wr says:

    Anjin — If you liked the Pears book, then you must read The Quincunx by Daniel Palliser. It’s the novel Dickens and Wilkie Collins would have written if they’d collaborated…

  37. wr says:

    Even better is The Quincunx by Charles Palliser…

  38. sam says:

    Speaking of Ayn Rand (and do we have to anymore after this?). James’s post on the 50 most loathesome Americans sent me over to the website of origin, The Beast. What a treat. Highly recommended. While I was cruising around over there, I found this: Caigoy Shrugs, Part IV. This guy, Michael Caigoy, is reading Atlas Shrugged so we don’t have to (unless we did succumb when those ol’ hormones started sloshing through our systems around age 13). Part IV contains this, the best of all commentaries I’ve ever read on AS:

    To celebrate Hank’s infidelity, he and Dags take a road trip to more of the middle states — only natural, since Rand and provincial xenophobes go together like metal and rape. Dagny wanted to take a side trip, as no good vacation is complete without an inexplicable visit to an abandoned factory.

    Along the way, they rattled through some piss town, distressing the emotionally-taut Rearden. He all but sobs at the sight of it: a stretch of road without billboards.

    Rearden: “I don’t like the looks of this.”

    Dags: “I don’t either.” Then she smiled. “But think how often we’ve heard people complain that billboards ruin the appearance of the countryside.

    Rearden: Well, there’s the unruined countryside for them to admire.”

    And there’s your “second most influential book of the Twentieth century.” If you’ve ever used a VCR or TiVo to skip ads, you’ve made the list, as Dagny finally says of the billboard averse: “They’re the people I hate.

  39. Niklas says:

    The authors tries desperately to put under the carpet that Jefferson said explicitly that state nullification was a “rightful remedy”. Both Jefferson and Madison believed that the federal government was a compact among the sovereign states, and that the states were to decide in the last resort (rather than the Supreme Court) about whether this compact is breached.

    James Madison:

    “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 legitimate and solid foundation. The States, then, being the 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, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.”


    Or, again Madison:

    “The resolution supposes that dangerous powers, not delegated, may not only be usurped and executed by the other departments, but that the judicial department also may exercise or sanction dangerous powers beyond the grant of the Constitution; and, consequently, that the ultimate right of the parties to the Constitution, to judge whether the compact has been dangerously violated, must extend to violations by one delegated authority, as well as by another; by the judiciary, as well as by the executive, or the legislature.

    However true, therefore, it may be, that the judicial department, is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial as well as the other departments hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.”

    So, no Supreme Court, but the states are to decide in the last resort,a bout the dangerous violations of the Constitution-compact.