When the people, acting as sovereign states, ratified the Constitution, they deliberately created a federal government with very limited powers. Each of these powers was specifically enumerated in this Constitution. Most of the debate during the ratification process was about how to be sure the states’ new creation, the federal government, would not usurp powers that were not delegated to it, and thus meddle in the responsibilities of the states and in the lives of the people.
The three branches of government and other checks and balances were a part of the answer. But, most importantly, the states retained their power to be the final judge of what is constitutional and what is not. Article 6 of the Constitution says, “This Constitution, and the laws of the United States, which shall be made in Pursuance thereof; ... shall be the supreme Law of the Land.” If a federal law is not made in pursuance of the powers delegated in the Constitution as determined by a state, that state has every power, right and duty to make the unconstitutional federal law null and void in that state.
This political process of nullification has been used many times in our history. Thomas Jefferson said that nullification was the “rightful remedy” when the state of Kentucky determined the Alien and Sedition Acts passed by Congress during the presidency of John Adams were unconstitutional. The process has been used successfully since that time and in our own day. Currently, 40 state legislatures are considering nullification of at least one unconstitutional federal action of law. State action trumps unconstitutional federal action.