Every once in awhile, somebody tells me, “The Constitution doesn’t say anything about nullification. Since the power isn’t there, the states can’t do it.” When I try to explain that states have the authority to do anything not specifically prohibited by the Constitution, they accuse me of being a hypocrite. “I thought you said the government only has limited powers.”
This reveals a fundamental misunderstanding of the Constitution.
In the constitutional system, the federal government has limited powers. It can only do the things specifically enumerated in the document. As James Madison put it in Federalist #45, “the powers delegated by the proposed constitution to the federal government are few and defined.” If a power isn’t listed, the federal government can’t do it.
On the other hand, states have reserved powers. In other words, state governments can constitutionally do anything unless it is specifically delegated to the general government, or if there’s an express constitutional prohibition against it. As Madison put it, “Those [powers] which are to remain in the State governments are numerous and indefinite.”
Here’s the simple way to think of it. If a power is listed, the feds can do it. If a power is not prohibited, the states can do it.
Of course, states don’t have unlimited power. State constitutions limit what state governments can do. But by-and-large, the Constitution places very few limits on state power.
So, what does the Constitution prohibit the states from doing? You find restrictions on state power in Article 1 Sec. 10.
“No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”
Notice it’s not a very long list. And it doesn’t include nullification.