Reviving Nullification

Gonna break it

Gonna shake it

Let's forget it better still
--The Who

Last week the Supreme Court declined to interfere with a Texas statute that provides for civil litigation against abortion providers in the state. Because the high court had previously upheld the principles of Roe v. Wade that has legalized more than 60 million abortions since 1973, Judge Nap reasons that the a five majority on the court is signaling that the concept of nullification is being revived.

Nullification stems from the notion that any state, via legislative or judicial means, can determine that a federal law or mandate is unconstitutional. If it does so, then the law is 'nullified,' meaning that the state can legally ignore it.

The idea of nullification was supported by many of our founding ancestors, including Jefferson and Madison. Nullification was employed several times in the early days of the United States--perhaps most notably in response to the Alien and Sedition Acts of the late 1790s. However, it has not been applied seriously since the outcome of the Civil War--an outcome which called into question the true sovereignty of the states.

A nullification-based interpretation of last week's ruling would be that Roe is unconstitutional, and that Texas has the sovereign power to declare it as such. 

It should be noted, however, that the Supreme Court's decision amounts to a temporary ruling. Challengers mount cases that ultimately will put the issue before the high court again. At that point, customary full briefings and oral arguments will require more transparency among the justices concerning their views on the legality of nullification.

Until then, the Texas ruling revives hope in the utility of nullification--perhaps, as the Judge call it, "the most effective peaceful tool for returning the federal government to the confines of the Constitution.