State nullification: A Critical Tool to Abolish Abortion
State nullification enables U.S. states to deem a federal act unconstitutional and void within their jurisdiction—a critical tool for abortion abolition. This article explores the mechanisms, historical precedents, and Christian moral dimensions of state nullification.
The overturning of Roe v. Wade by the Dobbs decision has intensified federal endeavors to subvert state abortion bans. Noteworthy are Biden’s attempts to weaponize HIPAA against healthcare providers with moral objections and to force doctors into performing abortions, not to mention sidestepping state laws against the abortion pill via postal regulations.
The Basics of Nullification
The Tenth Amendment: Cornerstone of Nullification
The Tenth Amendment is as foundational to American identity as freedom of the press or the right to bear arms. It reads:
“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.”
This provision serves as a vital bulwark against federal despotism.
Nullification Through the Lens of History
Originating from the Tenth Amendment, state nullification allows a U.S. state to nullify a federal act within its territory. While you may have been taught that the Supreme Court is the ultimate arbiter of constitutional legality, the framers of the Constitution endorsed a more nuanced and robust understanding. For the moment, it’s crucial to grasp that many founders saw the states as equal parties to the “Compact” (or Contract or Covenant) that is the Constitution—not as entities always subordinate to the federal government. This idea will be expounded upon later in this article.
Thomas Jefferson asserted, “Whenever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force.”
Thomas Woods, in his Tenth Amendment Center article, offers a myriad of historical examples that stress the federal limitations laid out by figures like Alexander Hamilton and James Iredell. We recommend Woods’ article to anyone interested in the topic.
Nullification: A Tool to Arrest the Progress of Evil
State nullification is deeply entrenched in American legal heritage and constitutional understanding. Jefferson deemed it “the rightful remedy” against federal intrusion, a view reinforced by James Madison who saw it as indispensable for “arresting the progress of evil.”
Those who dismiss these framers as “old dead white men” overlook the substantial and current precedent for state nullification. Modern examples range from cannabis decriminalization to gun rights, affirming its value across the political spectrum.
Jefferson was clear: when the federal government oversteps its bounds, nullification isn’t merely an option; it’s a state’s duty to preserve the Constitution by nullifying unlawful federal acts.
As Jefferson cautioned, power once acquired is rarely given up willingly. This underscores the perpetual vigilance necessary to preserve even the most virtuous forms of governance.
Responding to Nullification Naysayers
While establishment figures frequently deride nullification—one legal ‘expert’ labeling it the “zombie doctrine” of states’ rights—the fact remains nullification has been implemented in practically every state this past century. We’ll address some of the main criticisms here.
For issues we don’t address, and additional resources, we recommend visiting the Tenth Amendment Center. They cover the issues in unparalleled depth.
South Carolina and the Nullification Crisis of 1832
Skeptics often bring up the Nullification Crisis of 1832, involving South Carolina and federal tariffs, to claim nullification is “illegal.” This argument erroneously presupposes the federal government’s infallibility, a perilous notion. The threats of federal force were less about legality and more an abuse of power by President Andrew Jackson, you can read more about it at the link.
The Civil War Did Not End Nullification
Critics assert that the Civil War nullified the concept of states’ rights. Such an argument overlooks the source of these rights, which the framers recognized as evident through natural law—in reality, truths about ethics revealed through what God has created (i.e., general revelation.)
The Tenth Amendment clearly states,
“The powers not delegated to the [federal government]…are reserved to the States respectively, or to the people.”
Rights are not granted by the Constitution; rather, they are God-given and apparent from nature. To claim “the Civil War ended states’ rights” is to argue that a divine right was forcefully usurped, not negated through legitimate legal channels. It was understood as citizens first of their states, the states should be reserved the majority of powers to protect the rights of their people from central government which would certainly trample them.
Even if true, states resumed nullification practices within decades after the Civil War, revealing the war’s effect on states’ rights as temporary at best.
The Supremacy Clause: Misinterpretations and Clarifications
Article VI, Clause 2—commonly known as the Supremacy Clause—is frequently misinterpreted to suppress the idea of state nullification. The clause reads:
“This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.”
Critically, the phrase “made in Pursuance thereof” confines federal supremacy to laws in line with the Constitution. Therefore, the federal government is only the “supreme law” or “higher authority” when acting within the boundaries set by the Constitution. This strict constructionist understanding is vital to the discussion at hand and helps recalibrate our perception of state and federal powers in alignment with the framers’ original intent.
Role of the U.S. Supreme Court: Compact Theory and Constitutional Interpretation
Contrary to popular teaching, the Supreme Court is not the ultimate authority on constitutional matters—a notion aligned with Compact Theory. According to this theory, states, as co-signers of the Constitution, have an equal say in its interpretation. If the Supreme Court were the final authority, this would result in a circular logic wherein the federal government determines the limits of its own powers, leaving states without meaningful protection.
In Federalist Paper #45, James Madison emphasized that all branches—state and federal—are “perfectly co-ordinate,” sharing the responsibility to interpret the Constitution. This perspective, now often overlooked, underscores the state’s right to oppose not only SCOTUS rulings but also unconstitutional federal mandates.
Therefore, states possess both a moral and legal foundation for nullification, grounded in Compact Theory and the original intent of the framers.
Christian Case for Nullification: Doctrine of Lesser Magistrate
The Doctrine of the Lesser Magistrates posits that lower-level authorities have both the right and the divine duty to resist unjust laws from higher authorities. This principle rests on the divinely-ordained nature of all authority (Colossians 1:16). Biblical examples like the Hebrew midwives (Exodus 1:15-17), and Peter and the apostles (Acts 5:27-29), show that obeying God’s higher law takes precedence over human laws.
John Calvin, in his Institutes of the Christian Religion, argues that these lesser magistrates act as “divine agents.” They resist tyranny in adherence to Romans 13, which states that all civil authorities are God’s servants and thus accountable to His laws. Lesser magistrates are no less accountable to God.
Nullification and the Doctrine of the Lesser Magistrate
The Doctrine of the Lesser Magistrates underpins the legal concept of state nullification. David C. Innes, in his American Reformer piece, makes this connection clear:
“Power withstood by legitimate power is power chastened. Our American political experiment is premised on a Biblical view of political power: necessary but dangerous.”
Innes clarifies that the framers designed the U.S. Constitution with an understanding of humanity’s sinful nature. Their intent was to create a political system that hinders the progress of evil, particularly in the sphere of governmental authority. Therefore, nullification isn’t merely a legal strategy; it’s an application of a biblically informed doctrine that calls for resistance to unjust laws.
It’s worth noting that while the Doctrine of the Lesser Magistrates often assumes the State as the lesser authority, this isn’t always the case within the framework of compact theory. There may be situations where the State is actually the primary steward of the people. In such instances, the act of nullification goes beyond the duties of a lesser magistrate and becomes an obligation of the primary governing body—the State government—to actively protect its citizens in alignment with God’s laws.
Therefore, when a state government (appropriately) nullifies unconstitutional acts, it is not acting according to lawlessness, but is upholding the law, and faithfully fulfilling its duties as God’s deacon.
Not Wielding the Sword in Vain: Nullify Abortion
Grasping the theory, history, and concept behind an idea is one aspect — transforming that idea into a viable plan and executing it is another. While it may appear straightforward, the actual process of nullification is not to be underestimated. The inaugural step in nullifying abortion starts with recognizing nullification itself is a valid course of action. It has been, continues to be, and will remain a legitimate means to counteract federal overreach against the unborn.
We recommend presenting our Act to Abolish and Nullify Abortion to your state representatives as a comprehensive model to end abortion in your state. To gauge its efficacy against existing pro-life legislation, refer to this comparative article. If our model act doesn’t meet your requirements, consider collaborating with an abortion abolition organization in your state.
States can adopt concrete measures, such as instructing their law enforcement agencies not to cooperate with federal agents enforcing abortion mandates or by refusing federal funding linked to abortion services. These tactics are not merely constitutional; they are ethically obligatory.
Final Thoughts on State Nullification
Nullification and the doctrine of the lesser magistrate are not merely academic concepts or constitutional relics. When governing authorities compel us to embrace or be silent about evil, resistance is not rebellion but obedience to a higher law. There exists a compelling blend of historical, legal, and biblical reasons to resist federal overreach, particularly concerning abortion. By doing so, states not only assert their constitutional rights but also fulfill a divine mandate.