The “Principles of 98,” as they came to be known, are rarely discussed in modern history lectures even though these are integral to understanding how our federal Constitution was intended to function. These are the principles of state interposition or nullification that assert that if the federal government fails to check itself through one of its three branches, then it would be up to the states to rein in the feds.

The main basis for the theory is that the states created the national government when they joined the compact and not the other way around. The states therefore retained the power to judge for themselves the constitutionality of federal laws and reserved the right to refuse to enforce them if they went beyond their constitutionally delegated powers. As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy. The concept of a state nullifying a federal law simply means that a state refuses to comply with the law or permit its enforcement within state boundaries.

The man widely regarded as the “Father of the Constitution,” James Madison, described just how a federal system would work in his essay Federalist No. 51. Madison, encouraging his fellow countrymen to ratify the newly drafted Constitution, described a system of horizontal as well as vertical checks and balances between the federal and state governments — a system known as federalism. “Hence, a double security arises to the rights of the people. The different governments will control each other, at the same time that each will be controlled by itself.”

Madison, joined by Thomas Jefferson, would later go on to expand upon this in the famous Kentucky and Virginia Resolutions of 1798. The federal government had recently passed the blatantly unconstitutional and shameful Alien and Sedition Acts to silence and intimidate political enemies. Those despicable acts were instituted by advocates of unwritten constitutional power and a more robust central government. Both Jefferson and Madison argued that the states constitutionally had the right to refuse not only to comply with such unconstitutional actions of the federal government, but also to actively prevent the feds from enforcing them within their state boundaries.

These visionaries and their resolutions gave a voice to a peaceful revolution of constitutional principles that would govern this great nation for years to come. Many states have in fact utilized state nullification to check the federal government throughout the history of our Republic. From the Fugitive Slave Act to unpopular tariffs, states did indeed nullify federal laws they found to be unconstitutional.

Nullification has started to be mentioned in the news, as states have once more started to utilize the practice to resist federal overreaching. Many states have either passed or proposed legislation or amendments to their state constitutions that nullify federal laws in the areas of firearms, medical marijuana, and healthcare, to name just a few.

Thumbnail graphic: James Madison

Related articles:

State vs. Federal: The Nullification Movement

The Upcoming Tenth Amendment Summit

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Keith Ressa said:

Madison the nullifier? This may be news to the author of this article, but later in his life James Madison explained later how nullifiers took his writings out of context and issued what amounted to a repudiation of nullification. Please consult the following letters by Madison. • To Edward Everett, August 28, 1830 • To James Robertson, March 27, 1831 • To Nicholas P Trist, December 23, 1832 • To William Cabell Rives, March 12, 1833 http://www.constitution.org/jm/jm.htm

February 18, 2010

Republicae said:

Read Madison's letters closely... Madison kept his authorship of the Virginia Resolution of 1798 a secret in the same way that he would not allow his Notes on the Debate not to be published until after his death and there was good reason. In the letters you cite, you will notice that Madison stated that there were indeed valid reasons and proscriptions for nullification. What Madison objected to was the idea that a single State could nullify a legislative act of Congress, or some action of the federal government, but he was very clear that in concert with other States that it was a means of deflecting the overleaping, as he called it, of federal powers beyond those delegated to it. Madison also stated in those letters, that as a last resort a State or even a county in a State could withdraw or rebel if necessary to protect the life and liberty of its Citizens. Thus Interposition [nullification] and even Secession or Revolution were seen a valid last resorts to the States and the People, although not recommended by Madison. Read his Notes on the Debates, it appears that the final version of the Constitution was the result of the power of the Anti-Federalists instead of the Federalists, Madison appeared to be riding the fence on a number of issues, but thankfully the Virginia Plan was ultimately rejected by the delegates and a far more decentralized Constitution arose. Now, it is time for the Restoration of the Republic of Republics.

February 19, 2010 | url

P.M.Lawrence said:

Actual fact "As a matter of fact, nullification was used even before the implementation of the Constitution when the Colonists nullified laws made by the British Monarchy". No. First off, as a matter of law, this begs the question at issue: whether the colonies had that power or not. That is, it assumes the point at issue in asserting that they actually (as opposed to merely ostensibly) nullified those laws. Precedents like Poynting's Law for Ireland suggest otherwise, and if they did not apply, then there was never any founding basis for the colonial systems (the ones that later rebelled) in the face of those of the natives. But second, we do not even need to resolve that question to know that, as a matter of actual historical fact, that is simply wrong. There never were any "laws made by the British Monarchy"; the laws were made by Parliament and merely signed by the king.

February 19, 2010 | url

Saan said:

... "No. First off, as a matter of law, this begs the question at issue: whether the colonies had that power or not." Right, so we should still be part of the British State with representation in parliment? Legally that is

February 19, 2010

Michael G said:

What the federal government thinks is irrelevant Power belongs to the state governments. The argument that nullification is 'constitutional' is irrelevant. If a subject is not clearly and specifically decided in the constitution, it has no authority to be decided on the federal level. There is abosolutely no debating this. Read the federalist papers. Read what the actual framers (delegats of the states) decided the meaning of the constitution was.

February 19, 2010 | url

Larry McNeilis said:

Nullification is a Necessity for the Preservation and Protection of Any and All Rights Michael G. wrote "What the federal government thinks is irrelevant. Power belongs to the state governments. The argument that nullification is 'constitutional' is irrelevant. If a subject is not clearly and specifically decided in the constitution, it has no authority to be decided on the federal level." --> The 10th Amendment states "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." There is no provision within the Constitution, nor within its Amendments, that I can find, that prohibits the States from nullifying Fedreral Laws. Furthermore, even the concept of the power of nullification being 'delegated' to the Federal Gov't is absurd on the face of it! This leaves the exercise of the power of nullification available to the States.

February 20, 2010

Larry McNeilis said:

... In addition to this power being reserved to the States by the 10th Amendment, it also reserves that power to the People. Consequently, the people - both individually and collectively - can legitimately choose to exercise this power! This concept is reinforced by the 9th amendment which reads, "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people" This underscores the concept that just because the Constitution does not 'acknowledge' the existence of a right by enumerating it, that does not mean that the right does not exist! This dovetails perfectly with Mr. Krey's interpretation put forth in the article, Micheal G's comment quoted above and Republicae's comment that "Madison also stated...that as a last resort a State or even a county in a State could withdraw or rebel if necessary...Thus Interposition [nullification] and even Secession or Revolution were seen a valid last resorts to the States and the People" I see no ambiguity here, whatsoever! The Federal Government's overreach, and its usurpation of any and all powers not EXPLICITLY granted to the Federal Gov't, can - and MUST - be nullified to preserve the proper relationship of power between the People, their respective State Gov'ts and the Federal Gov't, as defined by the Constitution! Failure to due so, results in the loss of constitutionally protected rights and powers that the independent and sovereign States which comprise the United States sought to protect when they established the Constitution and the Federal Gov't, which were designed - specifically - to protect and defend those rights! Nullification is not only Constitutional but it is right and just. It is not merely 'necessary' at times. At times, it is mandatory for the very survival of the Nation, for the preservation of State sovereignty and for the protection of not only the rights of the people but of the people themselves!!!

February 20, 2010

Keith Ressa said:

... With all due respect to Republicae, I don't think you've read any of the letters I referenced in my post. Had you, you would know that the position Madison took in them was 180 degrees from that of the so-called "Pinciples of 1798". Madison even mocked and discredited the nullifiers of his generation, in those letters. James Madison, the "Father of the Consitution" can not be recruited as a supporter of nullification or secession, as those letters demonstrate. Even if Madison did support the idea of nullification in 1798 (which would mean he was being disingenous in those letters, I would like to give him the benefit of the doubt), Madison's position in his later life amounted to a thorough repudiation of the doctrine. I believe that Madison grew wiser with years not the reverse. I challenge you to quote any of those letters to support your interpretation.

February 21, 2010

Keith Ressa said:

... As far as the Constitution not prohibiting the states from nullifying laws. There is that pesky Article III, Section 1 which states that "The judicial power of the United States, shall be vested in one Supreme Court, and in such inferior courts as the Congress may from time to time ordain and establish." The states' judicial power (state supreme courts etc.) is subordinated into the Federal Court System. Ultimately, any constitutional questions appealed in state courts will go to higher courts (i.e. federal district courts). Therefore, the states judicial powers of interpretation and "nullification"(the arresting of laws) are limited and not final. The issue of nullification is a separate issue. State legislatures have no judicial powers, after all, they legislate. That is, they make laws, not interpret them. Nullification presumes that state legislatures have judicial powers, which they do not. Nullification, if true, would inevitably result in anarchy, rendering Congressional laws to the level of mere suggestions that the states could choose to go along with or not to go along with them. There goes the rule of law.

February 21, 2010

Keith Ressa said:

... But I'll let Madison speak for me when it comes to nullification. "The words of the Constitution are explicit that the Constitution & laws of the U. S. shall be supreme over the Constitution & laws of the several States, supreme in their exposition and execution as well as in their authority. Without a supremacy in those respects it would be like a scabbard in the hand of a soldier without a sword in it. The imagination itself is startled at the idea of twenty four independent expounders of a rule that cannot exist, but in a meaning and operation, the same for all." -James Madison to William Cabell Rives, March 12, 1833 "The strange doctrines and misconceptions (nullification) prevailing in that quarter (South Carolina) are much to be deplored; and the tendency of them the more to be dreaded, as they are patronized by Statesmen of shining talents, and patriotic reputations." -James Madison to Matthew Carey, July 27, 1831. "It is remarkable how closely the nullifiers who make the name of Mr Jefferson the pedestal for their colossal heresy, shut their eyes and lips, whenever his authority is ever so clearly and emphatically against them." -James Madison to Nicholas Trist, Dec. 23 1832. And by the way, Madison did not support secession, only revolution "against intolerable oppression." Read those letters if you want the truth.

February 21, 2010

Lee Gonzales said:

The "Father of the Constitution" does not mean the god of the constitution Madison wanted the Bill of Rights to also apply to the states. Mr Krey makes that point here: "James Madison,...wanted to have the Bill of Rights restrictions to be held against the states but was rebuffed in this effort because of widely held reservations to further empower the new government over the states. The first Congress refused to even submit such a proposal to the states for ratification because it was so unpopular." The Founders were not gods but men, albeit giants of intellect, but I am sure that if they were here today they would side with the states more often than with the central government.

February 22, 2010

Patrick Daniel Krey said:

Madison's Flip-Flop I was aware that Madison later changed his tune on nullification, Mr. Ressa, as your quotes from the 1830's, more than 40 years after the ratification of the Constitution show. I chose not to delve into that fact in this short intro to nullification because it's quite beside the point. Madison was notoriously inconsistent in what he espoused and what he claimed to mean. Look at his opposition to a national bank only to charter the 2nd one when President. He was against it before he was for it. What is important is that Madison and other proponents of the Constitution told the public that there would be horizontal and vertical checks and balances in order to get the Constitution ratified. The ratifiers' subjective understanding of what the Constituion would be, which you can determine from the assurances Madison and Hamilton made in the federalist papers as well as the state ratifying conventions, is what is important. The ratifiers are the ones who gave the Constitution its legal effect not the writings of Madison 40 years later. I see you've researched this subject a lot, Mr. Ressa, so I simply ask you research a little more into the writings of historian Kirk Wood. Please check out the following before you so easily dismiss the constitutional power of the states to nullify unconstituional laws. http://www.tenthamendmentcenter.com/2009/12/03/kirk-wood-nullification-a-constitutional-history/ You fear the states checking federal power via nullification might lead to anarchy. In reality, we all now know the opposite leads to federal tyranny.

February 22, 2010 | url