State nullification is not a real legal argument.

An unexpected feature of this year’s gubernatorial race is the revival of certain political notions identified with early American history. Republican candidate Debra Medina in particular has made nullification a major aspect of her campaign, both in her two debates with U.S. Sen. Kay Bailey Hutchison and Gov. Rick Perry and on her Web site, which includes, under the label “Restore Sovereignty,” the message that the U.S. Constitution “divides power between the federal and state governments and ultimately reserves final authority for the people themselves. Texas must stop the over reaching federal government and nullify federal mandates in agriculture, energy, education, healthcare, industry, and any other areas D.C. is not granted authority by the Constitution.”

She does not specify the mechanism by which nullification would take place, but, obviously, she appears to believe that the legal authority to nullify is unquestionable, making it only a question of political will.

There is, to be sure, some support for this view. Thomas Jefferson, denouncing the Sedition Act in the Kentucky Resolution of 1798, appeared to suggest that Kentucky could, in effect, declare this federal statute to be not only egregious but, more to the point, also unconstitutional and, therefore, of no effect. James Madison also flirted with the notion of nullification in the Virginia Resolution of the same year, but, characteristically, was less hot-tempered than his friend from Monticello.

However, they received the support of no other states (even those that opposed the Sedition Act), and several states went out of their way to denounce the notion. The Rhode Island Legislature forthrightly resolved that the Constitution places “in the federal courts, exclusively, and in the Supreme Court of the United States, ultimately, the authority of deciding on the constitutionality of any act or law of the Congress of the United States.”

An important episode of American history was the Nullification Crisis of 1832, when South Carolina declared that the tariffs of 1828 and 1832 — denounced as the “tariff of abominations” — were null and void because they violated the Constitution. President Andrew Jackson begged to disagree, threatening to use federal troops to enforce federal law. He prevailed, even without sending the troops. But, obviously, this was not the last dispute between South Carolina hotheads and the national government.

The South Carolinians often cited the Kentucky and Virginia resolutions, not only because of their use of the magic word “nullification,” but also because they are the most important articulation of the “state compact” theory of the Union. The argument was that the United States was created and “ordained” not by “We the People,” but, rather, by “We the Separate States,” which compacted with one another to create a United States of America. It is as if the United States of America were viewed as similar to the United Nations. Just as no one would confuse the United Nations with a world government that deprives its constituent members of their rights of “sovereignty,” so no one should believe that the United States deprived the states that gave it birth of their sovereignty.

The ultimate manifestation of sovereignty is withdrawal — secession. This argument is spelled out at the foot of the hill leading up to the Texas State Capitol, where a statue celebrating the Confederate war dead describes them has having “died for state rights guaranteed under the constitution,” which included the right to withdraw “from the federal compact.”

So now we find ourselves watching a Republican gubernatorial contest in which two of the three principal candidates seem to have expressed a degree of warmth toward the possibility of Texas’s secession from the Union. Neither Medina nor Perry actually supports it. But both have been actively seeking support from Tea Party activists and suggesting that dire consequences might follow from the failure of the national government to pay due heed to their radical opposition to national power.

“We’ve got a great union,” said the governor, and “there’s absolutely no reason to dissolve it.” But he immediately went on to say that “if Washington continues to thumb their nose at the American people, you know, who knows what might come out of that. But Texas is a very unique place, and we’re a pretty independent lot to boot.”

Secession is serious in a way that nullification is not. That is, no serious lawyer could believe that nullification could possibly be effective as a legal possibility. Anyone who believes otherwise is simply deluded or being misled by an ignorant demagogue. To paraphrase former Defense Secretary Donald Rumsfeld, we conduct our politics under the Constitution we have, not the Constitution some people wish we had. As it happens, I am quite bitterly critical of a number of defects in the Constitution and support a constitutional convention to correct them, but that does not change the fact, for example, that Wyoming has the same number of votes in the Senate as does California, or Vermont the same number of votes as does Texas. The inability of states to “nullify” federal legislation is another such fact.