Home
/
RELIGION & LIBERTY ONLINE
/
Nullification and Subsidiarity
Nullification and Subsidiarity
Jul 14, 2025 5:56 PM

Thomas Jefferson’s long-forgotten theory of state nullification may have found an ideal time for a resurgence, as the Tea Party and other groups advocate limited government as a solution to many of our current problems in health care, the economic crisis, our broken educational system, and the relentless expansion of government. The concept of nullification is simple, yet powerful: That individual states can and should refuse to enforce unconstitutional federal laws; and that the states, not the federal government, should have the final word on constitutional interpretation. The return of this “forbidden idea” (as its contemporary advocates sometimes describe it) represents not only an opportunity for small-government groups like the Tea Party to enact substantial change, but it also provides a unique opportunity those who are serious about a Christian social witness in public life to implement the principle of subsidiarity.

It is in this spirit thatDr. Thomas E. Woods, Jr. writes his newest book,Nullification: How to Resist Federal Tyranny in the 21st Century. Dr. Woods, who has authored two publications for the Acton Institute (the award-winningThe Church and the Market and the monographBeyond Distributism), as well astwo New York Timesbestsellers, now brings back the tradition of nullification into the public eye.

The seemingly radical idea of nullification flies in the face of nearly everything we have learned about the federal government and the Constitution: that federal authority always supersedes that of the states, that the Supreme Court has the final say on interpreting the Constitution, and that the only way to get rid of undesirable federal laws is to either have Congress repeal them or the Supreme Court overturn them.

However, Thomas Jefferson was convinced that if the federal government had a monopoly on interpreting the meaning of the Constitution, then there would be no certain way to constrain an unconstitutional expansion of its power. What if the constitutional system of checks and balances were to fail? What if, counter to the wishes of James Madison, ambition fails to counteract ambition, and the different branches of the federal government are able to cooperate in increasing the central government’s reach? Rather than wait two, four, or six years until the next election cycle, Jefferson thought, a more “rightful remedy” would be for states to simply declare that the laws in question violated the Constitution, and would not be enforced in said states.

He was not alone in this belief, as one can find the practice of nullification in the earliest years of the Republic.Kentucky andVirginia famously nullified the Alien and Sedition Acts of 1798. During Jefferson’s own presidency, northern states employed nullification against the total trade embargo imposed by the federal government. During the War of 1812, northern states once more passed resolutions nullifying any potential federal conscription acts. South Carolinapassed resolutions nullifying the 1832 “tariff of abominations.” And in the 1850’s, free states frequently invoked nullification in an effort bat unconstitutional aspects of thefugitive slave laws. Also interesting to note is that southern states did not invoke nullification to defend slavery.

To some extent, this practice continues today. As the Tenth Amendment Centerthoroughly documents, dozens of states seek to propose legislation that would prohibit the federal government from enactinghealth insurance mandates, enforcingsome federal gun laws,abusing the merce clause, andimposing cap-and-trade regulations, among other things. And though these efforts are still underway, supporters of nullification can already point to one success story: over two dozen statesopenly defied the Real ID Act of 2005, which imposed federal standards on state drivers’ licenses. Though the law is still “on the books,” so to speak, the federal government has given up on enforcement, due to the widespread and extremely overt opposition.

But what does all of this have to do with subsidiarity? At their core, the ideas of nullification and federalism that Dr. Woods invokes echo many of the same concerns that the Church raises in speaking of subsidiarity and the role of the state in society: that there needs to be a just division of responsibilities between different social orders. Social problems should be addressed at their lowest possible level. An unnecessary usurpation of power by, for example, the federal government, undermines the role that state governments should play in resolving some of their own domestic problems.

This principle is often invoked in religious discussion of public policy. The Catholic Churchplaces such great emphasis on the principle of subsidiarity that theCompendium of the Social Doctrine of the Church lists subsidiarity as one of the four foundational principles of social teaching. The Church not only exhorts us to respect human dignity, respect mon good, and have solidarity with the poor, but also teaches that we should pursue these social goals in the proper context of subsidiarity:

It is impossible to promote the dignity of the person without showing concern for the family, groups, associations, local territorial realities; in short, for that aggregate of economic, social, cultural, sports-oriented, recreational, professional, and political expressions to which people spontaneously give life and which make it possible for them to achieve effective social growth [….]

On the basis of this principle, all societies of a superior order must adopt attitudes of help (“subsidium”) – therefore of support, promotion, development – with respect to lower-order societies. In this way, intermediate social entities can properly perform the functions that fall to them without being required to hand them over unjustly to other social entities of a higher level, by which they would end up being absorbed and substituted, in the end seeing themselves denied their dignity and essential place. (185-186)

One can certainly see a similar spirit in the intentions of the framers of the Constitution: the purpose of this founding document was not to provide a new kind of all-powerful entity lording over the states; rather, the states created the federal government in order to serve them as an instrument for promoting mon good – as the Compendium says, to provide “support, promotion, and development.” To discover this, one need look no further than the preamble of the Constitution:

“We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for mon defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.”

In the same way, subsidiarity dictates that higher orders (e.g. the federal government) exist to promote and assist lower orders (e.g. states) in developing and protecting mon good. But a political system in keeping with the principle of subsidiarity should have appropriate mechanisms to ensure that the abuse and usurpation of power does not take place. This makes the need for a revival of nullification all the more urgent.

Today’s Tea Party-erseye with skepticism the intrusions of the federal government into all sorts of matters: guns, education, charity, health care, business regulation, etc. They clamor for change, and will certainly have a substantial impact on ing electoral cycle. But advocates of limited government should also reflect on which strategies are most effective at introducing real and substantial change. Both Thomas Woods and Thomas Jefferson contend that waiting for a benevolent Supreme Court, President, or Congress is not the right way. States cannot trust the federal government to police itself. They must take a direct role in reeling back federal power. Nullification is the best way to concretely implement the principle of subsidiarity, restore true federalism, and strengthen a truly Constitutional rule of law.

Comments
Welcome to mreligion comments! Please keep conversations courteous and on-topic. To fosterproductive and respectful conversations, you may see comments from our Community Managers.
Sign up to post
Sort by
Show More Comments
RELIGION & LIBERTY ONLINE
Acton Line podcast: What is cronyism? Samuel Gregg on reason and faith in Western civilization
Cronyism is everywhere, affecting industries, entrepreneurs and customers and distorting the market through political advantage. So what is cronyism and how does promise genuine capitalism? Anne Rathbone Bradley, the current academic director at The Fund for American Studies, as well as the vice president of Economic Initiatives at the Institute for Faith, Work and es onto the show to explain how cronyism affects the market and how bat it. Afterwards, Acton’s director of research, Samuel Gregg, joins the show to...
Wisconsin Democrats want to hear your confession
In Wisconsin, Democratic state legislators are proposing the Clergy Mandatory Reporter Act (CMRA), which would require “that members of the clergy report any instances of child abuse, including sexual abuse, ending the loophole of unjust cover-ups and misreporting currently occurring in our state.” “As an Orthodox priest,”says Rev. Gregory Jensen in this week’s Acton Commentary. “I cannot accept any attempt by the state to re-define for its own purposes the nature of the sacrament of confession.” Catholic League presidentBill Donohuesaid...
Adieu and thank you, Joe Carter
For nearly eight years, Senior Editor Joe Carter has been a mainstay of the PowerBlog. Not only have e to expect his daily PowerLinks but Joe’s numerous contributions (let’s enumerate: 4,400 posts!) on just about every topic we tackle here have been unfailingly helpful. Joe truly understands Acton’s “markets and morality” way of looking at the world and gave readers concrete ways of understanding often difficult concepts from economics, theology, social science and politics. On Sept. 6, Joe will post...
Is wealth immoral? A Jewish view
At a public event earlier this year, when Ta-Nahisi Coates asked Alexandria Ocasio-Cortez if any “moral world” ever “allows for billionaires,” she replied simply, No.” Earlier this month, Adam Roberts asked at Vox, “Is wealth immoral?” while, some time earlier, journalist A.Q. Roberts wrote inCurrent Affairs that “It’s Basically Just Immoral to be Rich.” Is wealth itself unethical? “On the contrary,” writes Ismar Schorsch, chancellor emeritus of Jewish Theological Seminary, “the Torah highlights [wealth] as a sign of God’s favor.”...
The nation in arms: Drucker on government’s ultimate tool for social control
This is the third in a series of essays on Peter Drucker’s early works. As I explained in an earlier post, Drucker recognized that fascists were able to take advantage of the dissatisfaction that many experience in a society dominated by money. They substitute party organization as a parallel social existence and then elevate it into a superior status-granting mechanism. In this way, the party exploits anger over inequality. I also discussed Drucker’s sense that the church should have been...
Thanks, China, for your ‘foreign aid’ to America’s low income workers
Several years ago economist Bryan Caplan provided themost succinct and helpful statement about how we should think about free trade: “We’d be better off if other countries gave us stuff for free. Isn’t ‘really cheap’ the next-best thing?” As with any simplification, critics could find many reasons to grumble about what that leaves unstated (e.g., trade leads to offshoring of jobs). But it highlights an important point about why free trade matters. Free trade is about as close to a...
Italy’s usual political turmoil
I appeared on EWTN News Nightly yesterday to talk about the collapse of the Italian government. Such turmoil is nothing new in Italy. Discontent with the political class is the main reason there was a populist coalition government in the first place. What made this government unusual was bination of right- and left-wing populists together. Its failure means that the populist appeal to e ideology is not yet mature enough to rule. Matteo Salvini and the League were initially the...
The most dangerous countries to be a Christian
Today is the first observance of the “International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief.” The observance, as Alliance Defending Freedom notes, is considered by human rights experts to be an important step towards the prevention of religious persecution in the future. In May the UN General Assembly adopted the resolution A/RES/73/296 to add this observance and to strongly condemn continuing violence and acts of terrorism targeting individuals, including persons belonging to religious minorities,...
Video: Deltan Dallagnol on the fight against corruption in Brazil
On Thursday, June 20th, Acton ed Deltan Dallagnol to deliver an evening plenary address at Acton University 2019. A Harvard-trained attorney, Deltan Dallagnol gained international attention as the lead prosecutor in Operation Car Wash, one of the largest corruption probes in Latin American history. The Car Wash investigation implicated four former presidents and dozens of congressmen and high profile businessmen in Brazil. The case spread to nearly all Brazilian states and more than 12 countries, involving 14 presidents and former...
A Christian psychology, pedagogy, and anthropology
At the behest of one of the editors, we’ve included an appendix in the new volume in the Abraham Kuyper Collected Works in Public Theology series, On Education, and called it “Lemkes’ Wish.” Here’s the background: Hubertus Johannes Lemkes (1828–97) was a teacher and a co-founder of the Association of Christian Teachers in the Netherlands and the Overseas Possession. In 1893 Lemkes writes a letter to Abraham Kuyper, requesting that Dr. Kuyper take up the challenge of writing a study...
Related Classification
Copyright 2023-2025 - www.mreligion.com All Rights Reserved