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.”
