What is the nullification theory in U.S. constitutional law?
Nullification is the legal theory that a state has the right to declare a federal law unconstitutional and void within its borders. The theory rests on the compact theory of government, which holds that the states created the federal government and therefore retain the final authority to judge the limits of its power. Federal courts have consistently rejected this theory, holding that the power to declare federal laws unconstitutional belongs to the federal judiciary under the Supremacy Clause and Article III of the Constitution.
Who first articulated the theory of nullification in the United States?
Thomas Jefferson and James Madison first articulated the theories of nullification and interposition in the Kentucky and Virginia Resolutions of 1798. Jefferson wrote the Kentucky Resolutions, which asserted each state's right to judge for itself whether the federal government had exceeded its delegated powers. Madison wrote the Virginia Resolutions, which introduced the related concept of interposition.
What was the Nullification Crisis of 1832?
The Nullification Crisis arose when South Carolina purported to nullify the Tariff of 1828 and the Tariff of 1832, declaring these acts "null, void, and no law, nor binding upon this State, its officers or citizens". President Andrew Jackson denied South Carolina had this power and prepared to enforce the tariffs by force if necessary. No other state supported South Carolina, and James Madison publicly stated that the Virginia Resolutions of 1798 should not be read as granting any single state the right to nullify federal law. A compromise tariff bill resolved the immediate confrontation.
Did the Supreme Court ever explicitly rule that states cannot nullify federal law?
Yes. The Supreme Court explicitly held in Cooper v. Aaron in 1958 that state governments cannot nullify federal law either openly or through evasive schemes. Earlier decisions including Ableman v. Booth in 1859, Martin v. Hunter's Lessee in 1816, and United States v. Peters in 1809 also rejected nullification. The Court's rejection of interposition was affirmed in Bush v. Orleans Parish School Board in 1960.
How does nullification differ from a state refusing to enforce federal law?
Nullification involves a state formally declaring a federal law unconstitutional and void within its borders, forbidding its enforcement by anyone. A state that simply refuses to use its own officials or resources to enforce federal law is not nullifying that law; the federal law remains valid and federal authorities may still enforce it. The Supreme Court established in Printz v. United States in 1997 and New York v. United States in 1992 that the federal government cannot compel states to use their administrative mechanisms to enforce federal law.
How did northern states use nullification arguments against the Fugitive Slave Acts?
Several northern states passed personal liberty laws in the mid-19th century designed to undermine the federal Fugitive Slave Acts of 1793 and 1850. Pennsylvania's 1826 law made it a crime to forcibly remove a Black person from the state for purposes of enslavement. Wisconsin's courts declared the Fugitive Slave Act of 1850 unconstitutional and freed a federal prisoner, then declared the Supreme Court had no authority to review that decision. The Supreme Court rejected both challenges, most thoroughly in Ableman v. Booth in 1859.