Nullification (U.S. Constitution)
Nullification is the claim that a state can simply void a federal law it disagrees with, as if the state itself were the final judge of the Constitution. The idea sounds radical today, but between 1798 and the Civil War it was invoked repeatedly, by states in both the North and the South, over taxes, trade embargoes, and the question of slavery itself. Who gets the last word on whether a federal law is constitutional? That question drove some of the most bitter conflicts in American history, and the answer courts gave again and again was not the answer nullification's defenders wanted to hear. To understand how the theory was born, tested, and ultimately rejected, we need to go back to 1798, when two of the founders put it in writing for the first time.
Thomas Jefferson and James Madison wrote the Kentucky and Virginia Resolutions in 1798 as a protest against the Alien and Sedition Acts. Their argument rested on a single foundational claim: the states had formed the Constitution as a compact, delegating certain powers to the federal government and keeping all others for themselves. Because the states created the federal government, Jefferson argued, each state retains the right to judge for itself whether that government has exceeded its delegated powers. When it does, a state may determine that a federal act is "unauthoritative, void, and of no force".
Madison's Virginia Resolutions took a slightly different path, introducing the concept of interposition rather than outright nullification. Madison wrote that states have the right and duty to "interpose" themselves when the federal government exercises powers not granted by the Constitution. He left undefined exactly what form that interposition might take.
The Kentucky Resolutions of 1799 went further, explicitly calling the remedy "nullification" by "the several states". Yet even then, Kentucky did not claim it would unilaterally block the Alien and Sedition Acts. Kentucky said it would "bow to the laws of the Union" while protesting them. The author of the 1799 Kentucky Resolutions is not known with certainty.
The other states rejected this framework. Ten states refused to endorse the Resolutions. Seven formally transmitted their rejections to Kentucky and Virginia. Vermont's legislature was particularly blunt: it declared that deciding the constitutionality of federal law "belongs not to state legislatures" but is "exclusively vested in the judiciary courts of the Union".
The Constitutional Convention of 1787 left no record of any delegate arguing that states could nullify federal law. What the records do show is delegate after delegate affirming the opposite. George Mason said federal judges "could declare an unconstitutional law void". James Madison said a law violating a constitution established by the people would be considered by judges as "null and void". Elbridge Gerry said judicial power over federal laws includes "a power of deciding on their constitutionality".
Charles Pinckney called federal judges "Umpires between the U. States and the individual States". John Rutledge said the Supreme Court would "judge between the U.S. and particular states". At least fifteen delegates from nine states made statements in this vein. Not one asserted a state power of nullification.
The Federalist Papers reinforced this view from multiple angles. Federalist No. 39 addressed directly who decides when the federal government has exceeded its powers, answering plainly that "the tribunal which is ultimately to decide, is to be established under the general i.e. federal government". Federalist No. 78 said the federal courts have the power "to pronounce legislative acts void, because contrary to the Constitution". Federalist No. 44 described the states' proper role as sounding the alarm and helping elect new representatives, with no mention of a power to nullify.
Federalist No. 80 and No. 22 both grounded federal judicial supremacy in the need for uniformity: if each state interpreted federal law for itself, the result would be as many conflicting readings as there are states.
John Marshall made the same point in the Virginia ratifying convention. He said the federal courts would guard the Constitution against infringement by Congress, declaring unconstitutional laws void, and asked: "To what quarter will you look for protection from an infringement on the Constitution, if you will not give the power to the judiciary? There is no other body that can afford such a protection."
The Supreme Court first confronted nullification directly in 1809 in United States v. Peters. The Pennsylvania legislature had passed an act purporting to void a federal court's judgment, claiming the court lacked jurisdiction. The Supreme Court held that Pennsylvania had no such power, warning that if state legislatures could annul federal court judgments, "the Constitution itself becomes a solemn mockery, and the nation is deprived of the means of enforcing its laws by the instrumentality of its own tribunals".
Pennsylvania's governor responded by calling out the state militia to block enforcement of the Supreme Court's order. The U.S. Marshal then summoned a posse, enforced the order, and arrested the militia leaders. Eleven states disapproved of Pennsylvania's stance. No state supported it. Madison himself affirmed the Supreme Court's authority. Pennsylvania backed down.
New England offered a different variation a few years later. Several states objected to the Embargo Act of 1807, which cut off foreign trade. Massachusetts called the act "unconstitutional" but directed citizens to seek relief through the courts. Connecticut went further, declaring state officials would not "assist, or concur in giving effect" to the act. Neither state actually tried to ban federal enforcement. A federal court upheld the Embargo Act in 1808. Congress repealed it in 1809 because it had failed to pressure Britain and France economically, making a legal test moot.
At the Hartford Convention of 1814, delegates from several New England states gathered to air their grievances about the War of 1812. The convention's final report asserted that "acts of Congress in violation of the Constitution are absolutely void" and claimed a state right to "interpose its authority". Even so, the delegates recommended no concrete nullification action. The end of the war rendered the matter moot before any state legislature could act on the convention's language.
Virginia produced a particularly direct challenge to federal judicial authority in the years after the War of 1812. In 1813, the Virginia Court of Appeals refused to accept a Supreme Court reversal of its own decision, arguing that as a matter of state sovereignty, its rulings were final and could not be appealed to any federal court. Virginia's court found unconstitutional the federal statute that allowed Supreme Court review of state court decisions.
The Supreme Court rejected that position in Martin v. Hunter's Lessee in 1816. The Court held that Article III gives the federal courts jurisdiction over all cases arising under the Constitution or federal law, and that the people had chosen, by ratifying the Constitution, to limit state sovereignty in precisely this way. Virginia came back again in Cohens v. Virginia in 1821, passing legislative resolutions asserting that the Supreme Court had no authority over it. The Supreme Court held again that where a case raised a federal question, it had authority to review the state court's judgment. These two cases settled the principle that federal courts, not state courts, have final power to interpret the Constitution.
Ohio presented a different kind of confrontation. In 1819, the state imposed a tax on the federally chartered Bank of the United States, even though the Supreme Court had already ruled in McCulloch v. Maryland that year that such taxes were unconstitutional. Ohio seized $100,000 from the Bank to satisfy the tax. The state legislature passed resolutions denying that the Supreme Court had final authority to interpret the Constitution, asserting that states "have an equal right to interpret that Constitution for themselves". The Supreme Court struck down Ohio's tax in Osborn v. Bank of the United States in 1824, holding that Ohio's act was "repugnant to a law of the United States, made in pursuance of the Constitution, and therefore void".
John C. Calhoun of South Carolina gave nullification its most elaborate theoretical defense in the South Carolina Exposition and Protest of 1828. Calhoun argued that the Tariff of 1828, which benefited northern manufacturing states while harming southern agricultural ones, was unconstitutional. He contended that sovereignty is an attribute each state holds inherently, giving it a necessary "veto", or "right of interposition", over federal acts it deems unconstitutional.
Daniel Webster challenged this view directly in the Webster-Hayne Senate debate in 1830. Webster argued that the Supremacy Clause makes federal law superior to state law, that Article III gives the federal judiciary power to resolve all disputes about the Constitution's meaning, and that allowing states to nullify federal law would produce as many competing interpretations as there are states.
In 1832, South Carolina took the step from theory to action. It purported to nullify the Tariff of 1828, the Tariff of 1832, and a subsequent federal act authorizing force to collect the tariffs. South Carolina declared 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. In his Proclamation to the People of South Carolina, Jackson called the claimed power to annul a federal law "incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which It was founded, and destructive of the great object for which it was formed".
No other state sided with South Carolina. Madison, the author of the Virginia Resolutions of 1798, specifically stated at this time that his resolution should not be read to grant any single state the right to nullify federal law. He called such a reading "a plainer contradiction in terms, or a more fatal inlet to anarchy" than he could imagine. A compromise tariff bill defused the immediate confrontation, but observers recognized that the underlying dispute had direct application to the question of slavery.
Northern states used arguments borrowed from nullification theory when confronting the federal Fugitive Slave Acts. Pennsylvania enacted a law in 1826 making it a crime to forcibly remove a Black person from the state with the intent of keeping or selling that person as a slave. Pennsylvania argued that Congress had no constitutional authority to pass the Fugitive Slave Act of 1793 in the first place.
The Supreme Court rejected that argument in Prigg v. Pennsylvania in 1842. The Court found that the Act was authorized by the Constitution's fugitive slave clause and that Pennsylvania's law conflicted with it. The Court did, however, suggest that states might be able to withhold the assistance of state officials from federal enforcement of the Act. This was not nullification, the Court implied, because it did not declare the federal law invalid.
Wisconsin tested these limits more aggressively. The state courts declared the Fugitive Slave Act of 1850 unconstitutional and ordered the release of a prisoner prosecuted under that Act in federal court. The Wisconsin courts declared that the Supreme Court had no authority to review their decisions. The Wisconsin legislature, using language borrowed from the Kentucky Resolution of 1798, passed a resolution declaring the Supreme Court's review void.
In Ableman v. Booth in 1859, the Supreme Court delivered what the source describes as its most thorough examination of nullification theory to that point. The Court held that in adopting the Supremacy Clause, the people of the United States had made federal law superior to state law. The people had also delegated final appellate authority to the federal courts over all cases arising under the Constitution. Wisconsin therefore had no power to nullify a federal statute that the federal courts had upheld, or to interfere with federal enforcement of that statute. The Civil War, which began in 1861, effectively ended most nullification efforts by discrediting the states'-rights framework on which they rested.
Nullification returned in the 1950s as at least ten southern states passed nullification or interposition measures in response to Brown v. Board of Education, the 1954 Supreme Court decision that declared segregated schools unconstitutional. The states argued that Brown was an unconstitutional infringement on states' rights and that they could prevent it from being enforced within their borders.
The Supreme Court answered definitively in Cooper v. Aaron in 1958. Arkansas had enacted several laws to block school integration. The Court held that state governments have no power to nullify Brown and that the decision "can neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted 'ingeniously or ingenuously'." Cooper v. Aaron is the Supreme Court's clearest direct holding that states may not nullify federal law.
Interposition fared no better. A federal district court in Louisiana rejected that state's use of interposition to preserve segregated schools. The district court held that "interposition is not a constitutional doctrine. If taken seriously, it is illegal defiance of constitutional authority. Otherwise, 'it amounted to no more than a protest, an escape valve through which the legislators blew off steam to relieve their tensions.'" The Supreme Court affirmed that decision in 1960 in Bush v. Orleans Parish School Board, holding that interposition cannot be used to negate federal law.
The legal distinction between nullification and actions that fall short of it remains relevant today. States that refuse to use their own enforcement resources for federal law, as established in Printz v. United States in 1997 and New York v. United States in 1992, are not engaging in nullification. States that legalize acts prohibited by federal law, as several have done with marijuana, are not formally nullifying federal law either: the federal prohibition remains on the books, and federal authorities retain the power to enforce it within those states.
Common questions
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.
All sources
49 references cited across the entry
- 1webFreedom in the New Territories (Appeal to a 'Higher Law')William H. Seward — U.S. Senate
- 2webJury NullificationDoug Linder — 2001
- 3journalWilliam Apess and the Nullification of Settler LawHannah Manshel — University of North Carolina Press — 2020
- 7bookThe Framing of the ConstitutionMax Farrand — Yale University Press — 1913
- 8bookThe Records of the Federal Convention of 1787Max Farrand — Yale University Press — 1911
- 9inlineIbid., p. 93.
- 11bookThe Records of the Federal Convention of 1787Max Farrand — Yale University Press — 1911
- 12inlineIbid., p. 428
- 13bookDebates in the Several State Conventions on the Adoption of the Federal ConstitutionJonathan Elliott — 1836
- 14bookDebates in the Several State Conventions on the Adoption of the Federal ConstitutionJonathan Elliott — 1836
- 15bookDebates in the Several State Conventions on the Adoption of the Federal ConstitutionJonathan Elliot — 1836
- 16bookDebates in the Several State Conventions on the Adoption of the Federal ConstitutionJonathan Elliot — 1836
- 18webFederalist No. 39
- 23webFederalist No. 82
- 25bookDebates in the Several State Conventions on the Adoption of the Federal ConstitutionJonathan Elliot — Lippincott — 1907
- 26journalContemporary Opinion of the Virginia and Kentucky ResolutionsFrank Maloy Anderson — American Historical Review — 1899
- 33bookJohn Marshall: Definer of a NationJean Edward Smith — Henry Holt & Co — 1996
- 37bookWhat Hath God Wrought: The Transformation of America, 1815–1848Daniel Howe — Oxford University Press — 2007
- 49webMemorandum for all United States AttorneysJames Cole — Attorney General's Office in Department of Justice