The following post is excerpted from the script for Nullify: Season 1. Watch all the videos from this series at this link – and Become a member here to support the TAC.
Both Thomas Jefferson and James Madison recommended being strategic about stopping federal power in the states. But they differed in what qualified for the strongest level of resistance.
In 1798, Thomas Jefferson advised each state to “take measures of its own” to ensure that federal acts not “authorized by the Constitution” would not be “exercised within their respective territories.”
Jefferson felt that any time the federal government went beyond the constitution, each state should immediately take steps to stop enforcement of such acts. He said each state should “nullify of their own authority all assumptions of power by others within their limits.”
But Jefferson was no dummy. In a letter to James Madison, he advised being strategic about it too, suggesting they “push as far as events will render prudent.”
James Madison was even more more pragmatic. Writing in Federalist #46, he recommended a “refusal to cooperate with officers of the Union.” The Supreme Court repeatedly supported this as the “anti-commandeering doctrine” in a series of cases from 1842 to 2012.
Madison only recommended going beyond mass non-participation and using a more confrontational approach in extreme situations, while Jefferson was willing to go as far as strategically possible on any federal act perceived to be outside the scope of the Constitution. The goal for Jefferson was to stop the enforcement of such federal acts within the boundaries of the state.
Today, James Madison’s pragmatic approach can effectively achieve Thomas Jefferson’s goals.
The federal government is involved in so many areas of your life, it has to rely on states to carry out most federal programs. Because of this, states have a powerful and effective strategy at hand. They can take “measures of their own,” without having to get permission from anyone outside their state. They can use a “refusal to cooperate with officers of the Union,” backed by modern Supreme Court precedent to effectuate a practical nullification of most federal programs.
But, if such methods fail to stop federal power, the principle author of the Declaration of Independence and the “father of the Constitution” both agreed that stronger steps should sometimes be taken.
As James Madison put it, nullification by any means necessary is “the natural right, which all admit to be a remedy against insupportable oppression.”