So what is the theory of “Nullification”?
- Nullification, in United States constitutional history, is a legal theory that a state has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.
Nullification sounds like a nice idea to some but there are problems with that theory. And the first is it has little legal support.
- The theory of nullification has been rejected repeatedly by Federal courts, and it has rarely been legally upheld.
The second problem is that nullification is entirely reactive. Nullification is always a reaction to something the government has already done. If that weren't bad enough, the things the government can do are never ending. Not only does it make mammoth laws that legislators themselves don't read, but they advise us we will find out what is in it after it is passed. And for the nullification proponents to react to EPA regulations, Obama's executive orders, Obamacare and the myriad of regulations within it, time will be needed to recognize the problem, mount a strategy, gain following support, etc. Not only is nullification a reaction, but it is a delayed reaction.
The nullification effort is not united. Nullification movements seek to nullify at the state, local, and individual levels. This is in fact a requirement since there would be no need for nullification at the Federal level since that would just be solved by legislative moves and reforms. The result is that unity across the fifty states and a multitude of local governments is very unlikely; there is no nullification convention. Nullification proponents may tend to feel they are unified, but numbers have to be very high to actually achieve a majority and communication lines public, open and constant. Instead, most of the public has not even heard of nullification and because of that, would not support it.
The response to nullification efforts may not be uniform. If the nullification effort is directed at some Federal law or regulation, what appears to be a success in one state may fail in another state. Some states may pose little resistance to the regulation, while others strongly oppose it. An inconsistent response to nullification efforts can render them useless. For instance, if a few states produce a product, for instance coal, but the vast majority do not then there may be little opposition to what does not directly affect them. And even if the regulation would later be determined to be detrimental, it may be too late to prevent the damage and reverse it by any means.
The act of nullification leads to the use of force, at least if it is over something the Federal government chooses to pursue. An example of that is found in the “Nullification Crisis of 1832”.
- The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of South Carolina.
- The tension went so far that “a Force Bill, authorizing the President to use military forces against South Carolina” was implemented, though the crisis ended before it was used, along with the Compromise Tariff of 1833.
The Supreme Court, Congress, or President may overrule attempts at nullification. And example is this:
- In 1854, the Wisconsin Supreme Court became the only state high court to declare the Fugitive Slave Act unconstitutional, as a result of a case involving fugitive slave Joshua Glover, and Sherman Booth, who led efforts that thwarted Glover's recapture. Ultimately, in 1859 in Ableman v. Booth the U.S. Supreme Court overruled the state court.
Jefferson and Madison issued the Kentucky(1798) and Virginia(1799) resolutions which asserted States rights against UN-Constitutional laws. These two resolutions are used by the Nullification supporters to make their case for Nullification.
- Madison's judgment is clearer. He was chairman of a committee of the Virginia Legislature which issued a book-length Report on the Resolutions of 1798, published in 1800 after they had been decried by several states. This asserted that the state did not claim legal force. "The declarations in such cases are expressions of opinion, unaccompanied by other effect than what they may produce upon opinion, by exciting reflection. The opinions of the judiciary, on the other hand, are carried into immediate effect by force." If the states collectively agreed in their declarations, there were several methods by which it might prevail, from persuading Congress to repeal the unconstitutional law, to calling a constitutional convention, as two-thirds of the states may.
- When, at the time of the Nullification Crisis, he was presented with the Kentucky resolutions of 1799, he argued that the resolutions themselves were not Jefferson's words, and that Jefferson meant this not as a constitutional but as a revolutionary right.
Madison biographer Ralph Ketcham wrote:
- Though Madison agreed entirely with the specific condemnation of the Alien and Sedition Acts, with the concept of the limited delegated power of the general government, and even with the proposition that laws contrary to the Constitution were illegal, he drew back from the declaration that each state legislature had the power to act within its borders against the authority of the general government to oppose laws the legislature deemed unconstitutional.
- Numerous scholars (including Koch and Ammon) have noted that Madison had the words "void, and of no force or effect" excised from the Virginia Resolutions before adoption. Madison later explained that he did this because an individual state does not have the right to declare a federal law null and void. Rather, Madison explained that "interposition" involved a collective action of the states, not a refusal by an individual state to enforce federal law, and that the deletion of the words "void, and of no force or effect" was intended to make clear that no individual state could nullify federal law.
Nullification itself was judged extremely divisive and a danger to the Constitution and Union.
Again in covering the Kentucky and Virginia resolutions:
- Merrill Peterson, Jefferson's otherwise very favorable biographer, emphasizes the negative long-term impact of the Resolutions, calling them "dangerous" and a product of "hysteria":
- Called forth by oppressive legislation of the national government, notably the Alien and Sedition Laws, they represented a vigorous defense of the principles of freedom and self-government under the United States Constitution. But since the defense involved an appeal to principles of state rights, the resolutions struck a line of argument potentially as dangerous to the Union as were the odious laws to the freedom with which it was identified. One hysteria tended to produce another. A crisis of freedom threatened to become a crisis of Union. The latter was deferred in 1798-1800, but it would return, and when it did the principles Jefferson had invoked against the Alien and Sedition Laws would sustain delusions of state sovereignty fully as violent as the Federalist delusions he had combated.
- Jefferson's biographer Dumas Malone argued that the Kentucky resolution might have gotten Jefferson impeached for treason, had his actions become known at the time. In writing the Kentucky Resolutions, Jefferson warned that, "unless arrested at the threshold", the Alien and Sedition Acts would "necessarily drive these states into revolution and blood." Historian Ron Chernow says of this "he wasn't calling for peaceful protests or civil disobedience: he was calling for outright rebellion, if needed, against the federal government of which he was vice president." Jefferson "thus set forth a radical doctrine of states' rights that effectively undermined the constitution." Chernow argues that neither Jefferson nor Madison sensed that they had sponsored measures as inimical as the Alien and Sedition Acts themselves. Historian Garry Wills argued "Their nullification effort, if others had picked it up, would have been a greater threat to freedom than the misguided [alien and sedition] laws, which were soon rendered feckless by ridicule and electoral pressure" The theoretical damage of the Kentucky and Virginia resolutions was "deep and lasting, and was a recipe for disunion". George Washington was so appalled by them that he told Patrick Henry that if "systematically and pertinaciously pursued", they would "dissolve the union or produce coercion". The influence of Jefferson's doctrine of states' rights reverberated right up to the Civil War and beyond. Future president James Garfield, at the close of the Civil War, said that Jefferson's Kentucky Resolution "contained the germ of nullification and secession, and we are today reaping the fruits".
There are many events leading up to the Civil War, the most deadly and bloody war in U.S. History by far. Chart here: U.S. War Death Statistics
What we now now in retrospect, is that Nullification was one of the elements, the events in the timeline to the American Civil War. That time line includes Nullification, then Secession, and then the American Civil War itself. In the end after the Civil War, the Union was stronger, the seceding Confederate states were in ruin, slavery was abolished, the concept of states rights as defined by the Tenth Amendment was much weaker, and the whole nation paid a high price in human and economic costs.
See Civil War, Results and costs
Secession is essentially an more extreme assertion of state sovereignty, a state attempting the termination of its political ties to the Union, than the preliminary step of nullification.
An even more extreme assertion of state sovereignty is the related action of secession, by which a state terminates its political affiliation with the Union. It follows that the Federal government will resist the secession because of the resultant economic effects and overall national strength. This was proven in 1861 with the American Civil War.
And it all most likely could have possibly been avoided by being proactive rather than reactive. However, the reactive path was chosen
- Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws, including the Supreme Court of Wisconsin's ruling in 1854 that the Fugitive Slave Act of 1850 was unconstitutional. None of these efforts were legally upheld. The Supreme Court rejected nullification attempts in a series of decisions in the 19th century, including Ableman v. Booth, which found that Wisconsin did not have the power to nullify the Fugitive Slave Act. The Civil War ended most nullification efforts.
- In the 1950s, southern states attempted to use nullification and interposition to prevent integration of their schools. These attempts failed when the Supreme Court again rejected nullification in Cooper v. Aaron, explicitly holding that the states may not nullify federal law
The founders themselves did not itemize or note in any way the concept of Nullification in the U.S. Constitution. While there may be many reasons they did so, my thoughts are more ordinary. When you stand back and look at the concept of Nullification, it is most like political whining. The reasons may be justified, but here we are looking at appearances, how people interact and civil discourse.
Nullification itself solves no problems. It is essentially a complaint, sometimes legitimate, about a perceived injustice emanating from the federal government. But it amounts to a few saying they aren't going to take it anymore. But it does nothing other than demand actions from the federal government. Nullification is not legislation to repeal a law, nor an effort to pass a new law. Nullification may serve therefore as a notice that there is a problem, but it does so with negative connotations.
But the founders did include in the U.S. Constitution means to correct such problems as we have been beset with. Legislation can be passed to reverse previous legislation and actions of bureaucracies. Amendments can be passed by Congress and in the case where the federal government will not pass such amendments, perhaps because of self-interest, then the States can pass amendments to reverse the excesses of a government that is out of control.
Perhaps the American Civil War could have been completely avoided if the sequence of Nullification, Secession, and Civil War were replaced by the negotiations for Government purchase of freedom for slaves from the slave owners and recognition that individual rights come before both States rights and federal powers. Then States rights and Federal enumerated powers would not have gotten so unbalanced.
It would be a deplorable and sad repetition of history to see the United States of America go through any part of the history already played out in the events leading up to and including that terrible Civil War. We had then and have now other ways to approach problems that should be tried first. Do not make that mistake again.
The answer to the question, Nullify or not nullify is of course Not Nullify. Use the Article V Convention process to amend instead. Nullification has been demonstrated not workable, and leads to secession and war. It is not the Article V Convention process that presents the danger of "runaway", but the Nullification process that does.
- De 30:19 I call heaven and earth to record this day against you, that I have set before you life and death, blessing and cursing: therefore choose life, that both thou and thy seed may live: