Withdrawal of consent can make a difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and certainly preferable to continuing to depend on obsolete notions.
By Greg Guma
“Nullification is not a “fringe theory,” asserts conservative constitutional scholar Joe Wolverton II. “It is, in fact, an explicit constitutional mechanism designed to prevent federal usurpation—a principle that predates even the ratification of the Constitution itself.” The article in which this controversial argument appears, published on the Tennessee Conservative website, presents arguments you are not likely to see in mainstream sources.
I’d like to add a few more, specifically focusing from a more progressive perspective on how we can begin to resist autocracy. As Donald Trump makes good on his threat to weaponize the Department of Justice and FBI against his “enemies,” both political and personal, nullification can become an effective tool to protect basic rights and fight back.
Traditionally, nullification occurs in court when a jury declares a defendant not guilty despite agreement — beyond a reasonable doubt — that a crime was committed. It is a legal form of popular resistance, a way for citizens to respond to malicious prosecutions or the unjust enforcement of laws. At times it has also been used to free popular defendants.
But the strategy need not be restricted to courtrooms. The Brennan Center for Justice explains: “At a time when essential human rights like bodily autonomy are under attack, immigrants face deportation on trumped-up charges, and the government has threatened to use its vast power to punish undesirable citizens, it is easy to feel powerless.” However, by employing nullification strategies, “the people retain the power to fight back and protect the freedom of their fellow Americans.”
As I explained in Restless Spirits & Popular Movements, “The argument for nullification rests on the theory that the states created the national government. Therefore, they have the right to judge the constitutionality of federal laws and potentially refuse to enforce them. Nullification was used when American colonists nullified laws imposed by the British. Since then states have used it to limit federal actions, from the Fugitive Slave Act to unpopular tariffs.”
Like other states, Vermont had direct, dramatic experience with nullification early in its history. In November 1850, for example, the state legislature approved a so-called Habeas Corpus Law that required officials to assist slaves who made it to the state. The law rendered the Fugitive Slave Act effectively unenforceable. This was a clear case of nullification, a controversial concept even then. Poet John Greenleaf Whittier recommended such tactics, while Virginia governor John B. Floyd warned that they could push the South toward secession.
Even earlier, support for nullification emerged in reaction to the Adams era Sedition Act. This was one of the key events that prompted the Kentucky Resolve of 1798, written by Thomas Jefferson, and the almost identical Virginia Resolve penned by James Madison. In Section One of his version, Jefferson stated that federal authority wasn’t unlimited, and, if it went too far, need not be obeyed.
The national government wasn’t the “final judge” of its own powers, Jefferson suggested, and various states had a right to decide how to handle federal overreach. Madison’s Virginia version declared that, in the case of a deliberate and dangerous abuse of power, states not only had a right to object. They were “duty bound” to stop the “progress of the evil” and maintain their “authorities, rights and liberties.”
Ten years later, after President Jefferson enacted a trade embargo in response to British maritime theft and the kidnapping of sailors, legislatures nullified the law using his own words and arguments. On February 5, 1809, the Massachusetts legislature declared that the embargo was “not legally binding on the citizens of the state” and denounced it as “unjust, oppressive, and unconstitutional.” Eventually, every New England state, as well as Delaware, voted to nullify the embargo act.
Today, defenders of the status quo — and that includes AI responses to inquiries about nullification — argue that it is merely a rhetorical tool, a theory “without legal or practical application.” Yet, even before the Trump administration began its assault on various parts of the US Constitution, state legislatures were debating laws designed to nullify federal actions in areas from gun control and health care reform to marijuana possession and overseas troop deployments. More recently, it has been mentioned as a strategy to resist unfair abortion regulations, defend birthright citizenship, and challenge immigration laws.
Ironically, one of the early nullification fights emerged between states and the federal government in the 1800s, a precursor that ultimately led to the Civil War.
The Supreme Court has consistently upheld the principle of federal supremacy, arguing that states cannot nullify federal laws. However, if a Court majority doesn’t acquiesce to the Trump regime’s current push to nullify the separation of powers, due process and other constitutional guarantees, there is little doubt that Trump will not hesitate to defy it. He has already taken the first steps by side stepping and declining to follow court orders. In doing so, he is providing the spark for additional local, state and regional nullification moves to follow.
Wolverton goes further than I would in his judgement about the historic role of the Supreme Court. He accuses it of being “an accomplice in the unconstitutional expansion of federal power” for two centuries. But I do agree with him that the Court has frequently “rubber-stamped unconstitutional federal overreach” and “is not the final arbiter of what is and is not constitutional.” That power rests in the Constitution itself.
His viewpoint also points to another argument I’ve made over the years. Although the left and right have been culturally polarized for generations — disagreeing over racism, abortion, immigration, climate change and the distribution of wealth — there is some common ground. One area that could prove crucial now, as the federal government slides toward autocracy, is the belief that withdrawal of consent can make a huge difference. Nullification is a form of active resistance and disengagement from illegitimate authority, and that is certainly preferable to continuing to depend on obsolete notions about federal-state relations and an 18th century social contract that can no longer protect us.
