"A little learning is a dang'rous thing;
Drink deep, or taste not the Pierian spring:
There shallow draughts intoxicate the brain,
And drinking largely sobers us again.”
Essay on Criticism. Part ii. Line 15.
Nullification: Nullification is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory is based on a view that the sovereign States formed the Union, and as creators of the compact hold final authority regarding the limits of the power of the central government.
This is held under the Compact Theory of the Constitution. The Compact theory considers the constitution a compact between the states. As such the states are the final arbiters as to the constitutionality of federal law.
The first test: The Alien and Sedition Acts- There were four laws under this act. The one we are concerned with is the fourth section of this act. An Act for the Punishment of Certain Crimes against the United States; ch. 74, made it a crime to publish "false, scandalous, and malicious writing" against the government or its officials. It was enacted July 14, 1798, with an expiration date of March 3, 1801 (the day before Adams' presidential term was to end).
This was considered by many including Jefferson and Madison as a clear violation of the First Amendment to the U.S. Constitution. Their response was to write the Virginia (Madison) and Kentucky (Jefferson) Resolutions. These resolutions were passed by their respective legislatures. Their effect was to declare the acts nullified by virtue of the fact they were unconstitutional.
If you want to read the resolutions there are a number of sites that have the entire texts available. The Kentucky Resolution (1798) is the best source for arguments used by Jefferson. Madison’s Virginia resolution is much more controlled and measured. Madison carefully crafted his responses to straddle the fence on many issues.
State legislatures that were controlled by Federalist denounced the resolutions. Republican and southern states tended to side with Virginia and Kentucky. Sectional differences were already in evidence at this early date.
The acts expired upon the election of Jefferson in 1800.
The Hartford Convention- Secession New England style
Various embargo acts and the advent of the War of 1812 cripple trade in the northern colonies. Especially hard hit were the New England colonies. A convention is called in Hartford to consider leaving the union. While many Federalist support leaving, cooler heads prevail and amendments to the constitution are proposed. The war ends prior to anything happening. Another close call.
An interesting note is the governor of Massachusetts, Caleb Strong, sent a secret mission to the British to suggest a separate peace for his state. He offered northern Maine (then part of Mass.) as an inducement. Once again the war ended the effort.
The Nullification Crisis of 1832-
The crisis started due to tariffs enacted in the late 1820’s. The tariff rate went from around 20% to almost 50% on many items. While many imports of raw materials actually hurt the Northeast, the south was affected the most.
Britain slowed down its purchase of cotton which meant there was less money to buy their (British) goods. Northern manufactured goods were higher priced thus putting further strain on southern pocketbooks.
The tariff issue is highly complicated with politics and sides changing quite often, but the simple fact is the south and South Carolina especially felt the tightening.
In response to this, John C. Calhoun wrote (anonymously) The South Carolina Exposition and Protest in which he proposed the idea of nullification of what he considered an unconstitutional tariff. The main argument in the pamphlet was a protective tariff such as the 1828 tariff was unconstitutional. Tariffs should be used to raise revenue only. If nullification was ignored by the federal government then the state had the right to secede.
The 1828 tariff was called the Tariff of Abominations.
There was the hope that the election of Andrew Jackson in 1828 would kill or lessen the tariff. Jackson did nothing to lessen the tariff until 1832. The amount the tariff of 1832 decreased the overall rate did not satisfy South Carolina. A state convention called in 1832 nullified both the 1828 and 1832 tariff.
The fight was now on.
Andrew Jackson issued a proclamation to the people of South Carolina informing them he considered nullification "impractical absurdity" and also told General Winfield Scott to mobilize troops. It should be noted no other state, even in the south, supports South Carolina.
A compromise ensues. The tariff is lowered gradually but a Force Bill is enacted giving Jackson power to send troops to enforce federal laws. Portions of the Force Bill are still part of U.S. law. Another Force bill was passed in the 1870’s to enforce provisions of the 14th Amendment.
The Crisis passes. But seeds are sown that bear fruit in 1861.
The 1850’s- Fugitive Slave laws
Northern states tried to get around the provisions of the 1793 Fugitive Slave Laws by enacting what were called person liberty laws. The Supreme Court in Prigg v. Pennsylvania (1848) found these laws unconstitutional stating that while states could choose to not enforce the law they could not enact legislation which in effect overturns the law. Slave catchers had to kidnap runaway slaves and bring them to their owners or bring them before federal judges for processing.
This led to the Fugitive Slave Law of 1850. It was a part of the Compromise of 1850 in which California entered the Union as a free state. The south was given a much harsher fugitive slave law. Northern states still refused to follow the law which further enraged the south.
Texas v. White (1869)
This was a case involving U.S. bonds held by Texas and sold during the Civil War. The court held actions taken by the Texas legislature while part of the Confederacy were null and void and further held that Texas never ceased being a state after joining the Union. They further held that under the Constitution states did not have a right to secede. The majority opinion was written by Salmon Chase a former member of Lincoln’s cabinet. There was a dissent by three justices but none challenged the idea that a state could not secede. Their dissent was based on the idea that as Texas was under federal jurisdiction due to reconstruction Texas was not a “state” under the U.S. constitution.
Interposition in the 1950’s and 60’s
During the Civil Rights movement of the 1950’s and 60’s many southern states tried to use the idea of interposition or nullification to keep from enacting federal desegregation laws. In Mississippi governor Ross Barnett used the principal of interposition to keep James Meridith from enrolling at the University of Mississippi.
The Supreme Court in Cooper v. Aaron held that since the Supremacy Clause of Article VI made the U.S. Constitution the supreme law of the land and Marbury v. Madison established the power of judicial review Supreme Court precedents are the supreme law of the land. Their rulings are binding on all states, even if state law contradicts Supreme Court rulings.
Given the above history of the political and legal landscape it is highly doubtful that the Supreme Court would give any credence to state efforts at nullification or interposition.
The best option for states to challenge federal legislation is to challenge the constitutionality of the legislation.. As a practical matter nullification would seem to be a theory that would lead to chaos.
The founding fathers wrote many times that THE PEOPLE are the ultimate enforcers of the body politic. We control the government if we choose to exercise that control. Returning over 90% of all incumbents to office is not the way to exercise that control.
Whenever we look in the mirror we are looking at the problem.