States Use Nullification to Rein in the Feds

Friday, February 1, 2019
By Paul Martin

by Steve Byas
Friday, 01 March 2019

Its use goes back to the earliest days of the republic. When the Federalist Party-dominated Congress passed the Sedition Act in 1798, Thomas Jefferson (the author of the Declaration of Independence) and James Madison (principal author of the Constitution) secretly wrote resolutions adopted by the state legislatures of Kentucky and Virginia, proposing to use “nullification” and “interposition” to uphold the First Amendment from its violation by Congress.

The First Amendment explicitly stated that Congress could make no law abridging the freedom of speech and the freedom of the press. Yet, just seven years later, Congress passed the Sedition Act, which proceeded to do both. Federalist judges fully implemented the unconstitutional act, despite this clear wording forbidding abridgement of speech and press.

In an effort to avoid violent resistance and still uphold the First Amendment, Jefferson and Madison supported nullification — as a last resort. The states would refuse to cooperate with the law’s implementation in order to protect its citizens from the heavy hand of the federal government.

Nullification is regularly denounced in history books and by modern commentators largely ignorant of its purpose, with some even arguing that the Civil War was fought over the doctrine. This is historically inaccurate. The southern states that seceded were not attempting to nullify federal law — they were declaring their independence from the federal government.

Others insinuate that nullification was used by South Carolina in the 1830s to defend slavery. But South Carolina declared it was nullifying the tariff laws by refusing to collect the hated Tariff of Abominations, as they called it. The slavery question had no role whatsoever in the whole episode.

On the contrary, Northern states such as Michigan and Wisconsin used the doctrine of nullification to inhibit federal enforcement of the Fugitive Slave Act of 1850.

The use of nullification in the case of the Fugitive Slave Act is an example of how a state can best utilize the doctrine: by simply refusing to cooperate with federal authorities.

A good modern example of this use of nullification is a bill introduced in the Hawaii Senate to ban the use of “stingrays.” Stingrays are devices that spoof cell phone towers, tricking devices within range into connecting with the stingray instead of an actual cell tower. This allows law enforcement to essentially violate the Fourth Amendment’s ban on unreasonable search and seizure. Under the proposed law, Hawaii law enforcement officials would be forced to obtain a warrant before listening to any conversations captured by the devices.

The federal government has financed most of the stingray programs in the states. Sold originally as a way to combat “terrorism,” the program is mostly used for routine criminal investigations — all without a warrant and probable cause.

But by placing these restrictions on stingrays or by banning their use, state and local governments can severely limit the data available to federal law enforcement. The bill (SB 465) is presently in committee, awaiting hearings and a vote.

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