Nullification (U.S. Constitution)
Thomas Jefferson wrote in the Kentucky Resolutions of 1798 that states formed a compact to create a general government for special purposes. He argued each state retained the right to judge when the federal government exceeded its delegated powers. James Madison introduced the related concept of interposition in the Virginia Resolutions of the same year. These documents claimed states had an equal right to determine infractions and choose redress measures. The theory rested on the idea that sovereignty resided with the states rather than the federal courts. John C. Calhoun later expanded this view in the South Carolina Exposition and Protest of 1828. He asserted that nullification was an essential attribute of state sovereignty. Supporters argued the Tenth Amendment reserved these powers to the states. They believed the Constitution was a contract among sovereign entities. This perspective held that if the federal government acted beyond its authority, the states could declare those acts void.
Records from the Constitutional Convention of 1787 contain no discussion of state nullification power. At least fifteen delegates from nine states spoke about the federal courts declaring laws unconstitutional. George Mason stated judges could declare an unconstitutional law void. Elbridge Gerry said federal judges possessed the power to decide constitutionality. Charles Pinckney referred to federal judges as umpires between the United States and individual states. Oliver Ellsworth told the Connecticut convention that judicial departments were constitutional checks against legislative overreach. Luther Martin wrote to the Maryland ratifying convention that only federal judges could determine if Congress violated the Constitution. James Madison declared in the Virginia convention that protection against infringement would come from the judiciary. The records show no assertions that states had the power to nullify federal laws. Instead, they support the idea that final interpretive power lay with federal courts. John Marshall argued there was no other body that could afford such protection. The evidence suggests the original public meaning included judicial power to nullify unconstitutional laws.
The Supreme Court first dealt with nullification in 1809 through the case of United States v. Peters. Pennsylvania passed a statute claiming the federal court judgment was null and void. Chief Justice William Johnson held that if state legislatures could annul federal judgments, the Constitution became a solemn mockery. Governor of Pennsylvania called out the state militia to prevent enforcement. A U.S. Marshal summoned a posse and arrested the militia leaders. Eleven states disapproved of Pennsylvania's attempt while none supported it. Virginia asserted the Supreme Court was the proper tribunal for disputes between state and federal judiciaries. The Pennsylvania legislature eventually backed down and withdrew the militia. In 1816, the Supreme Court decided Martin v. Hunter's Lessee rejecting Virginia's claim of sovereignty over its own courts. The Court held Article III gave federal courts jurisdiction in all cases arising under the Constitution. Ohio seized $100,000 from the Bank of the United States in 1819 despite a prior ruling. The Supreme Court declared Ohio's tax repugnant to federal law in Osborn v. Bank of the United States in 1824. Georgia passed an act making state law applicable on Cherokee lands in the 1820s. The Supreme Court ruled in Worcester v. Georgia that Georgia laws had no force on Cherokee land.
John C. Calhoun authored the South Carolina Exposition and Protest of 1828 asserting tariff acts were unconstitutional. He argued each state possessed a veto or right of interposition regarding federal encroachments. Daniel Webster responded during the Senate debate in 1830 claiming the Constitution provided a proper mode for settling questions. He stated the judicial power extended to all cases arising under the Constitution. South Carolina enacted the Ordinance of Nullification in 1832 prohibiting enforcement of tariff acts within the state. President Andrew Jackson issued a proclamation denying states the power to annul federal statutes. He considered such power incompatible with the existence of the Union. No other state supported South Carolina's position. James Madison weighed in stating his Virginia Resolution should not be interpreted as granting nullification rights. A compromise tariff bill eventually made the issue moot. Calhoun later admitted slavery was the real cause behind the unhappy state of things. He believed denial of the right to interpose alarmed thinking Southerners more than any other cause. The crisis demonstrated the practical application of these theories beyond mere tariffs.
Northern states passed personal liberty laws undermining the Fugitive Slave Act of 1793. Pennsylvania enacted a law making it a crime to forcibly remove black persons from the state in 1826. The Supreme Court upheld the validity of the federal act in Prigg v. Pennsylvania in 1842. Justice John McLean wrote that states could resist positive duties imposed by the Constitution. Wisconsin courts held the Fugitive Slave Act of 1850 unconstitutional in Ableman v. Booth in 1859. The Wisconsin legislature declared the Supreme Court's review void and unauthorized. The Supreme Court held no power was more clearly conferred than deciding all cases arising under the Constitution. It affirmed final appellate authority rested with the federal judiciary. The Court stated people had made federal law superior to state law through the Supremacy Clause. This decision marked the most thorough examination of nullification theory yet. Federal enforcement of the statute proceeded despite state resistance. The Civil War subsequently terminated most nullification attempts relying on states' rights principles.
Jefferson Davis delivered a farewell address to the Senate in 1861 distinguishing nullification from secession. He argued nullification applied within the Union while secession separated states entirely. The Civil War effectively ended the viability of nullification as a political strategy. Daniel Farber noted the war terminated the possibility of states serving as constitutional guardians. Principles of states' rights were viewed as no longer viable after the conflict. The federal government emerged stronger with clear supremacy over state actions. Attempts to declare federal laws void became legally impossible following the war. The outcome established that the Union was more than a compact between sovereign entities. Texas v. White later confirmed this view in 1869. The war settled the question of who held ultimate interpretive authority over the Constitution.
Southern states passed nullification measures attempting to preserve racial segregation in schools during the 1950s. At least ten southern states refused to follow the Brown v. Board of Education decision of 1954. Arkansas enacted several laws preventing integration of its schools. The Supreme Court decided Cooper v. Aaron in 1958 holding state governments had no power to nullify the ruling. The Court stated interposition resolutions had no legal efficacy and amounted to illegal defiance. Louisiana passed an Act of Interposition which courts found inconsistent with the Constitution. A district court ruled interposition was not a constitutional doctrine but rather an escape valve for legislators. The Supreme Court affirmed that the final tribunal for constitutional adjudication remained the United States Supreme Court. These decisions explicitly rejected both nullification and interposition doctrines. Federal law remained superior to any conflicting state legislation or resolution.
Common questions
What did Thomas Jefferson write in the Kentucky Resolutions of 1798 about state power?
Thomas Jefferson wrote in the Kentucky Resolutions of 1798 that states formed a compact to create a general government for special purposes. He argued each state retained the right to judge when the federal government exceeded its delegated powers.
Did the Constitutional Convention of 1787 discuss state nullification power?
Records from the Constitutional Convention of 1787 contain no discussion of state nullification power. The records show no assertions that states had the power to nullify federal laws and instead support the idea that final interpretive power lay with federal courts.
When did the Supreme Court first deal with nullification through United States v. Peters?
The Supreme Court first dealt with nullification in 1809 through the case of United States v. Peters. Chief Justice William Johnson held that if state legislatures could annul federal judgments, the Constitution became a solemn mockery.
Why did John C. Calhoun assert nullification was an essential attribute of state sovereignty?
John C. Calhoun later expanded this view in the South Carolina Exposition and Protest of 1828 asserting tariff acts were unconstitutional. He asserted that nullification was an essential attribute of state sovereignty and believed denial of the right to interpose alarmed thinking Southerners more than any other cause.
What happened when Wisconsin courts held the Fugitive Slave Act of 1850 unconstitutional in Ableman v. Booth?
Wisconsin courts held the Fugitive Slave Act of 1850 unconstitutional in Ableman v. Booth in 1859. The Supreme Court held no power was more clearly conferred than deciding all cases arising under the Constitution and affirmed final appellate authority rested with the federal judiciary.
How did the Civil War affect the viability of nullification as a political strategy?
The Civil War effectively ended the viability of nullification as a political strategy. Daniel Farber noted the war terminated the possibility of states serving as constitutional guardians and established that the Union was more than a compact between sovereign entities.