It was Thomas Jefferson, in his draft of the Kentucky Resolutions of 1798, who introduced the term “nullification” into American political discourse. Jefferson was merely building upon an existing line of political thought dating back to Virginia’s ratifying convention and even into the colonial period. Consequently, an idea that may strike us as radical today was well within the mainstream of Virginian political thought when Jefferson introduced it. Nullification begins with the axiomatic point that a federal law that violates the Constitution is no law at all. It is void and of no effect. Nullification simply pushes this uncontroversial point a step further: if a law is unconstitutional and therefore void and of no effect, it is up to the states, the parties to the federal compact, to declare it so and thus refuse to enforce it. It would be foolish and vain to wait for the federal government or a branch thereof to condemn its own law. Nullification provides a shield between the people of a state and an unconstitutional law from the federal government. The central point behind nullification is that the federal government cannot be permitted to hold a monopoly on constitutional interpretation. If the federal government has the exclusive right to judge the extent of its own powers, warned James Madison and Thomas Jefferson in 1798, it will continue to grow—regardless of elections, the separation of powers, and other much-touted limits on government power. A constitution is, after all, only a piece of paper. It cannot enforce itself. Checks and balances among the executive, legislative, and judicial branches, a prominent feature of the Constitution, provide little guarantee of limited government, since these three federal branches can simply unite against the independence of the states and the reserved rights of the people. That is precisely what Jefferson warned William Branch Giles was already happening in 1825: “It is but too evident, that the three ruling branches of [the Federal government] are in combination to strip their colleagues, the State authorities, of the powers reserved by them, and to exercise themselves all functions foreign and domestic.” Much more important than the feeble restraint of “checks and balances” is the ability of the states to interpose to prevent the enforcement of unconstitutional laws. That is a real check on federal power. It is not clear what the alternative to Jefferson’s remedy of nullification might be. Unconstitutional laws have indeed been passed, in very great abundance, so the question he poses about what to do in such a situation is not merely academic. Should people gather petitions, asking those who drafted the objectionable law to change their minds? Good luck with that. They could instead appeal to the courts. Although it would be nice if the courts were to grant us relief, what if they do not? The federal courts have, for all intents and purposes, ceased to police the federal government. We cannot be expected to believe that the matter is settled, and an odious law to be complied with, merely because a handful of politically well-connected lawyers whom we are urged to treat with superstitious awe have solemnly informed us that all is well. It is not difficult to find support in history for the general principle that an unconstitutional law is void. Alexander Hamilton contended in Federalist #78 that “there is no position which depends on clearer principles, than that every act of a delegated authority contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the constitution, can be valid. To deny this, would be to affirm that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men, acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.” This principle should be beyond debate. The controversy arises when we consider how and by whom an unconstitutional law should be declared void (and thus not enforced). It was Hamilton’s view that the courts would put things right. But what if they didn’t? And since the federal courts are themselves a branch of the federal government, how can the people be expected to consider them impartial arbiters? The Supreme Court itself, after all, although usually pointed to as the monopolistic and infallible judge of the constitutionality of the federal government’s actions, is itself a branch of the federal government. So in a dispute between the states and the federal government, the resolution is to come from . . . the federal government? Jefferson refused to accept that answer. Under that arrangement, the states would inexorably be eclipsed by the federal government. It was impossible for Jefferson to believe that the states would have agreed to a system that assured their unjust subordination. Spencer Roane, a Virginia judge who would have been appointed Chief Justice of the United States by Thomas Jefferson had John Adams not chosen John Marshall in the waning hours of his presidency, noted that if the federal judiciary were to arbitrate such a dispute between itself and the states, it would be presiding over its own case, a clear absurdity: It has, however, been supposed by some that . . . the right of the State governments to protest against, or to resist encroachments on their authority is taken away, and transferred to the Federal judiciary, whose power extends to all cases arising under the Constitution; that the Supreme Court is the umpire to decide between the States on the one side, and the United States on the other, in all questions touching the constitutionality of laws, or acts of the Executive. There are many cases which can never be brought before that tribunal, and I do humbly conceive that the States never could have committed an act of such egregious folly as to agree that their umpire should be altogether appointed and paid by the other party. The Supreme Court may be a perfectly impartial tribunal to decide between two States, but cannot be considered in that point of view when the contest lies between the United States and one of its members. . . . The Supreme Court is but a department of the general government. A department is not competent to do that to which the whole government is inadequate. . . . They cannot do it unless we tread underfoot the principle which forbids a party to decide his own cause. Joseph Desha, governor of Kentucky, identified the very same problem in 1825: When the general government encroaches upon the rights of the State, is it a safe principle to admit that a portion of the encroaching power shall have the right to determine finally whether an encroachment has been made or not? In fact, most of the encroachments made by the general government flow through the Supreme Court itself, the very tribunal which claims to be the final arbiter of all such disputes. What chance for justice have the States when the usurpers of their rights are made their judges? Just as much as individuals when judged by their oppressors. Desha concluded that it is “believed to be the right, as it may hereafter become the duty of the State governments, to protect themselves from encroachments, and their citizens from oppression, by refusing obedience” to “unconstitutional mandates.” Once we accept the underlying premise that an unconstitutional law is ipso facto void, it is not a long way to Jefferson’s commonsense conclusion that someone ought to protect the people from the enforcement of such a law, and that the state governments, each one speaking only for itself, are the logical choice to do so. All over the country today, state legislators are introducing measures by which their states would refuse to enforce federal laws that violate the Constitution. Two dozen states nullified the REAL ID Act of 2005, legislation which aroused the opposition of both fiscal conservatives, who resented another unfunded federal mandate imposed on the states, and civil libertarians, who raised privacy concerns against the legislation’s proposed standardization and centralization of identification procedures. Resistance was so widespread that although the law is still on the books, the federal government has, in effect, given up trying to enforce it. This makes for an excellent example of how nullification can work—the states’ resistance to some federal action is perceived as being so fierce and determined that Washington backs off, deciding that a particular struggle isn’t worth pursuing. A new piece of legislation, the so-called PASS ID Act, is now under consideration at the federal level, but the states are likely to grant it a similar reception. Another example of a state challenge to federal power is the Sheriffs First initiative, whereby, with a few exceptions, it would be a state crime for a federal law enforcement official to make an arrest or engage in a search or seizure without first receiving permission from the local sheriff.10 Locally elected sheriffs, who have some semblance of accountability to the people, might thereby be able to prevent some of the inevitable abuses that have accompanied the increasing centralization of law enforcement in the United States. Anyone concerned for the protection of civil liberties must find great appeal in this movement. One of the most successful examples of modern-day nullification involves the medicinal use of marijuana, which is illegal under federal law. As of this printing, fourteen states are openly resisting the federal government’s policy.