A common complaint among detractors of nullification is that, as they see it, “James Madison was the author of the Constitution and since he didn’t include nullification in the document, it can’t be done.”
This attitude holds that the feds get to do whatever they want, as long as it’s not specifically prohibited by the Constitution, while the states have to receive their authority from the Constitution or the feds. This argument completely flips the entire structure of the Constitution on its head. It also ignores what Madison later wrote about nullification in the Virginia Resolutions and later in Notes on Nullification.
The federal government is only authorized to exercise those powers delegated to it in the Constitution, not the states. While states are expressly prohibited from doing some things in the Constitution, mostly listed in Article I, Section 10, it’s the federal government that can’t do something if it’s “not included in the document.”
The Constitution was written to define the limited powers of this central government. Meanwhile, the states retained any powers not specifically delegated to the feds. This is exactly what Madison later wrote in Federalist 45:
The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite (bold emphasis added).
The Tenth Amendment also confirms this relationship between the states and the feds when it speaks of “delegated” powers to the federal government.
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 (bold emphasis added).
The argument that nullification is illegal because isn’t in the Constitution falls apart under even the gentlest scrutiny. If the states must specifically receive authority from the U.S. Constitution and not even their own constitutions, then logically it must follow that every law they pass and legal action they take that is not mentioned in the Constitution must be considered illegal. Plain reasoning demonstrates how absurd this is.
The authority to nullify unconstitutional federal laws, on the other hand, is not delegated to the feds, nor is it expressly prohibited to the states. That nullification is not mentioned at all misses the point of the Tenth Amendment, which was to make it clear that the enumerated powers the feds had were the only powers they had. Those who point to the Supremacy Clause as proof of this prohibition also forget that the clause refers to actions taken in pursuance of the Constitution, i.e. it does not give the feds carte blanche to assume any power they want. Nullification pertains to federal actions that go beyond the limitations of the Constitution and serves as an important check and balance when the three federal branches fail to restrain each other as intended.
And if nullification detractors are so concerned about what Madison thought, they will find it hard to dismiss what he wrote about it in December 1834 following the Nullification Crisis of 1832.
Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression (bold emphasis added).
His use of the term “natural right” cannot be overlooked. Madison is not calling nullification a mere legal tool, but a natural right along with “life, liberty, and the pursuit of happiness.” It is a right which all people are born with innately and cannot be deprived of them without their consent.
One shouldn’t be surprised about this, because it logically followed from his belief articulated in Federalist 46 that the powers of a government ultimately resided in the people over whom it ruled.
In it he wrote:
The federal and State governments are in fact but different agents and trustees of the people, constituted with different powers, and designed for different purposes. The adversaries of the Constitution seem to have lost sight of the people altogether in their reasonings on this subject; and to have viewed these different establishments, not only as mutual rivals and enemies, but as uncontrolled by any common superior in their efforts to usurp the authorities of each other. These gentlemen must here be reminded of their error. They must be told that the ultimate authority, wherever the derivative may be found, resides in the people alone, and that it will not depend merely on the comparative ambition or address of the different governments, whether either, or which of them, will be able to enlarge its sphere of jurisdiction at the expense of the other (bold emphasis added).
Put differently, the people ultimately get to decide what their government is allowed to do. When they decide that government has gone too far, nullification is a means of exercising their natural right of protecting their liberties without resorting to violent overthrow of that government.
Lastly, it must be pointed out that James Madison was not the author of the Constitution, albeit he helped draft the document along with other convention delegates. He is known today as the “Father of the Constitution,” chiefly due to his Federalist essays promoting its ratification and his work in drafting the Bill of Rights.
When William Cogswell credited him as “the writer of the Constitution of the U. S.” in 1834, Madison replied that Cogswell had given him “a credit to which I have no claim . . . . This was not, like the fabled Goddess of Wisdom, the offspring of a single brain. It ought to be regarded as the work of many heads and many hands” (bold emphasis added).
Madison was no doubt being modest in regards to his involvement, but he was still correct in pointing out that no one person had a legitimate claim of authorship of the Constitution, for it was the product of compromise and collaboration by the delegates who attended the Philadelphia Convention in 1787.
Through nullification people are able to exercise their natural right to resist the unjust and illegal actions of their government when it violates the limitations placed upon it by the written Constitution from which it derives its authority. That it is not mentioned anywhere in the Constitution itself is irrelevant because, as we very well know, the Founders believed in the right of revolution, yet there is no clause in the Constitution affirming this right.