by Diane Rufino
Nullification is the theory that says that actions of the federal government that are passed, imposed, or exercised in excess or abuse of the express authority granted in the Constitution are not enforceable. If there is no proper foundation for the action, then that action is null and void and a state has the right, in fact the duty, to refuse to enforce it on its people. Nullification is an essential principle to ensure that the People are insulated from federal tyranny.
Nullification is a legal theory rooted firmly in constitutional history and based on the very limitations articulated in the US Constitution, specifically the Tenth Amendment and Article VI, Section 2 (“Supremacy Clause”). It is based on the federal nature of our government (separation of powers; “dual and competing sovereigns”), on the Supremacy Clause (only those laws made “in pursuance to the Constitution” are supreme and therefore trump state law), and most strongly, on the compact nature of the Constitution (the states formed the Constitution as a compact, agreeing to delegate some of their sovereign power – certain specified powers – to the federal government and reserving all other powers to themselves. Each state, as a party to the compact, has a “right to judge for itself” the extent of the federal government’s powers). The compact – the social compact – that the states signed in forming the Union in 1789, is similar to contract law. Contracts, as we all know, outline the obligations and benefits to each of the signing parties. The parties are likewise bound by the express language of the contract. We understand this theory and this issue of contract construction as we all have signed contracts. If one party attempts to change the terms or exceed authority under the contract, the other party can either chose to ignore the perverted exercise of contract power or can break the contract altogether.
The fundamental basis for government and law in this country, as in most societies, is the concept of the social compact (or social contract). Social compact is an extension of Natural Law (upon which our Declaration is based) which states that human beings begin as individuals in a state of nature and then organize into societies for mutual benefit. They create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves the retaining of certain natural rights, an acceptance of restrictions of certain liberties, the assumption of certain duties, and the pooling of certain powers to be exercised collectively. James Madison confirmed the nature of the US Constitution as a social compact in Federalist No. 39.
The key features of a social compact are: (i) retention of natural rights; (ii) common defense of those rights; and (iii) limitation of government power.
Now, it is true that the compact assures that the Constitution and the laws made in pursuance to it (Article VI) shall be valued as the supreme law of the land, but the converse is equally true. All power not expressly granted is reserved by the States and on those objects, state law is supreme law. This is our system of dual sovereignty. That is the brilliant design feature of our American government system which our Founders believed would ensure the protection of our God-given rights. But unfortunately, our Founders thought the government could be trusted to respect its boundaries, to protect that “precious jewel” that is liberty. They believed that if the branches of government were “advised” that their particular actions were unconstitutional, they would quickly remedy the situation and undo what they had done.
Hah, fat chance that was going to happen. It was only a few years into the operation of the federal government when it attempted, successfully too, to enlarge its powers and redefine the terms of the Constitution. And that’s when our most important Founders – Thomas Jefferson and James Madison – had to remind state leaders why we fought the Revolutionary War in the first place and what their fears had been when considering ratifying the Constitution. That’s when Jeffersonian Nullification was born. It was born out of the notion that the federal government must not be permitted to hold a monopoly on constitutional interpretation, for if it has the unchecked power to judge the extent of its own powers, it will continue to grow and encroach on the rights and liberties of the People and the States.
In his written assurances to the States that the Constitution was delegating only limited powers from them to a federal government, Alexander Hamilton wrote in Federalist No. 78: “Every act of a delegated authority, contrary to the tenor of the commission under which it is exercised, is void. No legislative act, therefore, contrary to the Constitution, can be valid. To deny this, would be to affirm, that the deputy is greater than his principal; that the servant is above his master; that the representatives of the people are superior to the people themselves; that men acting by virtue of powers, may do not only what their powers do not authorize, but what they forbid.”
In order that the States (and the People) be completely assured of what precise objects that their sovereign power was being delegated to the government for, James Madison explained it in the clearest of terms in Federalist No. 45:
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.
The operations of the federal government will be most extensive and important in times of war and danger; those of the State governments, in times of peace and security. As the former periods will probably bear a small proportion to the latter, the State governments will here enjoy another advantage over the federal government. The more adequate, indeed, the federal powers may be rendered to the national defense, the less frequent will be those scenes of danger which might favor their ascendancy over the governments of the particular States.”
In Federalist No. 26, Alexander Hamilton wrote: “The State legislatures, who will always be not only vigilant but suspicious and jealous guardians of the rights of the citizens against encroachments from the federal government, will constantly have their attention awake to the conduct of the national rulers, and will be ready enough, if anything improper appears, to sound the alarm to the people, and not only to be the VOICE, but, if necessary, the ARM of their discontent.”
And with this duty to protect its citizens against encroachments from the federal government – to be both their VOICE and their ARM of discontent – we see the seeds that were sown for Nullification and Interposition (the duty to intercede and prevent the usurpation and “arrest the evil”).
Our Founders understood the nature of power…. Power can only be checked by power.
In the Kentucky Resolutions of 1799, which questioned the constitutionality of the Alien & Sedition Acts, Thomas Jefferson wrote:
“If those who administer the general government be permitted to transgress the limits fixed by the federal compact (ie, the US Constitution), but a total disregard to the special delegations of powers therein contained, an annihilation of the state governments, and the creation, upon their ruins, of a general consolidated government, will be the inevitable consequence: That the principle and construction, contended by the state legislatures, that the general government is the exclusive judge of the extent of the powers delegated to it, stop nothing short of despotism – since the discretion of those who administer the government, and not the Constitution, would be the measure of their powers. That the several states who formed that instrument, being sovereign and independent, have the unquestionable right to judge of its infraction; and that a Nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the RIGHTFUL REMEDY: That this commonwealth does, under the most deliberate reconsideration, declare that the said Alien and Sedition laws are, in their opinion, palpable violations of the Constitution…”
In the Virginia Resolutions of 1798, also addressing the unconstitutionality of the Acts, James Madison wrote:
“That this Assembly doth explicitly and peremptorily declare, that it views the powers of the Federal Government, as resulting from the compact, to which the states (alone) are the parties, as limited by the plain sense and intention of the instrument constituting that compact; as no farther valid than they are authorized by the grants (of power) enumerated in that compact; and that in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact, the states who are parties thereto have the right, and are duty-bound, to INTERPOSE for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them…
That the General Assembly expresses its deep regret that a spirit has been manifested by the federal government to enlarge its powers by forced constructions of the constitutional charter which defines them; and that indications have appeared of a design to expound certain general phrases (which, having been copied from the very limited grant of powers in the former Articles of Confederation, were the less liable to be misconstrued) so as to destroy the meaning and effect of the particular enumeration which necessarily explains, and limits the general phrases; and so as to consolidate the states, by degrees, into one sovereignty, the obvious tendency and inevitable result of which would be, to transform the present republican system of the United states into an absolute, or at best, a mixed monarchy..”
Historians and constitutionalists explain the Jeffersonian theory of Nullification in a way that is slightly misleading. They teach us that constitutional theory allows a state the right (and perhaps even the duty) to nullify, or invalidate, any federal law which that state has determined to be outside the powers delegated to the government under the Constitution. In other words, they say, a state has the right to determine when a federal law is unconstitutional and therefore decide not to enforce it.
Nullification is actually simpler than that. We live in a country founded on the notion of Individual Sovereignty – that man is supreme and government flows from the sovereign rights and powers of the individual. In our free society, founded on the supremacy of individual rights, constitutions were drafted to list those powers that the people agreed to delegate to their government for the protection of their rights and the orderly management of their communities. The US Constitution was no different. All other powers were retained by the People. Laws are only enforceable in such a constitutional republic when there is express authority granted by the People to do so. Consequently, when the federal government passes a law that exceeds or abuses power delegated in the Constitution, that law is AUTOMATICALLY NULL and VOID. It is automatically unenforceable on a free people. Judges are SUPPOSED to declare it void (to put that official check on the legislative branch and force them to repeal the law), but even if they don’t, the law is already null and void. The federal judiciary was originally intended to be a “check” and was supposed to “advise” only. It was intended to be the weakest of all branches.
So, under the doctrine of Nullification, the states don’t really declare laws to be null and void. Rather, they recognize that certain laws are null and void. Then they exercise their duty to maintain the integrity of our free society by refusing to enforce any unconstitutional law on their citizens.
There is no easier way for tyranny to take hold than for a People to remain silent when they know, or should know, what their rights are. There is no easier way for a government to usurp the natural rights of a People to govern themselves than to stand by and let that government legislate when it has no authority to do so.
The early colonists certainly didn’t miss an opportunity to stand up for their rights. In fact, the Sons of Liberty formed (much like today’s Tea Party and Tenth Amendment Center) to point out where Britain was violating their rights and to help organize opposition and protest. Samuel Adams, the leader of the Sons of Liberty in Boston, wrote the following in 1769 with these words:
REVOLVING time hath brought about another anniversary of the repeal of the odious Stamp Act,—an act framed to divest us of our liberties and to bring us to slavery, poverty, and misery. The resolute stand made by the Sons of Liberty against the detestable policy had more effect in bringing on the repeal than any conviction in the Parliament of Great Britain of the injustice and iniquity of the act . It was repealed from principles of convenience to Old England, and accompanied with a declaration of their right to tax us; and since, the same Parliament have passed acts which, if obeyed in the Colonies, will be equally fatal. Although the people of Great Britain be only fellow-subjects, they have of late assumed a power to compel us to buy at their market such things as we want of European produce and manufacture; and, at the same time, have taxed many of the articles for the express purpose of a revenue; and, for the collection of the duties, have sent fleets, armies, commissioners, guard acostas, judges of admiralty, and a host of petty officers, whose insolence and rapacity are become intolerable. Our cities are garrisoned; the peace and order which heretofore dignified our streets are exchanged for the horrid blasphemies and outrages of soldiers; our trade is obstructed ; our vessels and cargoes, the effects of industry, violently seized; and, in a word, every species of injustice that a wicked and debauched Ministry could invent is now practiced against the most sober, industrious, and loyal people that ever lived in society. The joint supplications of all the Colonies have been rejected; and letters and mandates, in terms of the highest affront and indignity, have been transmitted from little and insignificant servants of the Crown to his Majesty’s grand and august sovereignties in America.
These things being so, it becomes us, my brethren, to walk worthy of our vocation, to use every lawful mean to frustrate the wicked designs of our enemies at home and abroad, and to unite against the evil and pernicious machinations of those who would destroy us.
From a small, secret group of agitators in Boston and in Connecticut, the Sons of Liberty grew to the point that there was a group in every one of the thirteen colonies. They organized demonstrations, circulated petitions, published newspaper articles, distributed flyers and handbills, and in general did all they could to bring the message of liberty to the colonists. But it was their simple acts of civil disobedience – like protesting a tax on tea by dumping 342 chests of tea into the Boston Harbor, protesting the tax on documents (Stamp Act) by forcing officials to the Crown to resign or to refrain from unloading ships from Britain, or forming angry mobs in response to the Quartering Act – which prevented the enforcement of some of the acts of Parliament that the colonists found intolerable. It was when the King responded with further punitive and oppressive measures – which Jefferson would refer to as “abuses and usurpations” – it was clear the colonies would have to declare their independence in order to remain free.
By frustrating the enforcement of the Stamp Act and the other intolerable, the Sons of Liberty exercised their early right of nullification. They recognized that the British Parliament had no right to legislate for them when they were not provided representation, as guaranteed in their English Bill of Rights of 1689. Any piece of legislation that is passed without proper authority is automatically null and void and cannot be rightfully enforced. This is the basis of the doctrine of Nullification. The Sons of Liberty stood up for this principle and energized the colonists to stand up for their rights and especially their right NOT TO SUBMIT to laws that were not properly passed in accordance with their government charters.
Nullification, as you can see, is an important check and balance on the power of the federal government, which seeks, at every turn, to enlarge and concentrate its powers and to pervert the meaning and intent of the Constitution. There has been no greater enemy than the federal courts which now openly, flagrantly, and arrogantly declare that the Constitution is a “living, breathing document” that is to be re-interpreted willy nilly and as they, the judges, believe will best reflect and serve the social norms of the day.
In fact, Nullification is probably the most important check and balance of them all. Dual and co-equal sovereigns, each jealously guarding their respective sphere of power, will maintain that delicate balance of power that our Founding Fathers designed and which the States themselves agreed to. It’s the same way that two skilled attorneys, adversarial in nature (the prosecution and the defense) will aggressively provide that justice is served. And it’s the same way that two political parties, one to the left in its ideology and the other to the right, will ultimately assure that policy remains somewhat in the middle so that our society is tolerable for everyone.
In Federalist No. 33, Alexander Hamilton asked and answered an important question: “If the federal government should overpass the just bounds of its authority and make a tyrannical use of its powers, the people, whose creature it is, must appeal to the standard they have formed, and take such measures to redress the injury done to the Constitution as the exigency may suggest and prudence justify.” Hamilton doesn’t limit the measures that people can use to redress the situation when government oversteps the bounds of its authority. According to Hamilton, the remedy should be in proportion to the violation. If we are to take Hamilton at his word for the government’s taxing power, we should, with the same enthusiasm, take him at his word for the ability to push the government back within the bound of the Constitution.
Referring to the title of this article, the truth is that Nullification is a valid constitutional doctrine reserved “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by said compact (US Constitution).” James Madison, Virginia Resolutions of 1798. The states, who wrote, debated, amended (Bill of Rights), and ratified the Constitution to create the federal government are the rightful parties who have the authority, and are indeed “duty-bound, to interpose (intercede) for arresting the progress of the evil, and for maintaining within their respective limits, the authorities, rights, and liberties appertaining to them.” Virginia Resolutions of 1798. The fallacy is that the Constitution itself, through the Supremacy Clause, renders Nullification an illegitimate remedy. The fallacy is that the Supreme Court, as the ultimate authority on the intent and meaning of the Constitution, has rejected the doctrine. The fallacy is that Nullification was the favored state remedy of slavery proponents and white supremacists.
The remainder of this article is devoted to the fallacies.
Critics are quick to say that the theory of nullification has never been legally upheld and in fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958. They say that the courts have spoken on the subject and have held that under the Supremacy Clause of the Constitution, federal law is superior to state law, and that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.
The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of Nullification as the other branches are. As will be discussed later, the federal judiciary was the first branch to enlarge its powers, in the case of Marbury v. Madison.
Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…” The is no debate that the Constitution, as originally drafted and defended, and as intended and ratified, designed a government of limited powers. Therefore it follows that only laws passed to legislate for the limited functions listed in the Constitution are supreme. Regarding objects and designs not expressly listed in the Constitution, the Ninth and Tenth Amendment remind us that they are reserved to the People or the States, respectively, and the federal government can claim no such supremacy. The Supremacy Clause states a preemptive doctrine that asserts sovereignty just as equally as the Ninth and Tenth Amendments assert sovereignty.
Hamilton continued in Federalist No. 33: “It is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.”
Critics also like to discredit Nullification by associating it with the more controversial episodes in our history. A popular claim is that Nullification was used to perpetuate slavery because it was embraced by Southern leaders who did not want blacks to take their place as free and equal men in their societies. They especially link Nullification to South Carolina’s colorful Senator John C. Calhoun who was not only a vocal proponent of the doctrine and used it to justify his state’s refusal to recognize the Tariff of Abominations in 1832, but he was a strong supporter of slavery and a white supremist. They like to say that Nullification led to the tariff crisis (or Nullification Crisis of 1832) pitting the South against the North and eventually precipitating the Civil War. They allege that the Civil War settled the question of Nullification.
There are so many flaws in these arguments.
Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws, including the Tariff of 1828, the Tariff of 1832, the Fugitive Slave Act of 1850, and even the 1854 ruling by the Wisconsin Supreme Court which held that Wisconsin didn’t have to comply with the Fugitive Slave Act. None of these efforts were legally upheld, although all were successful in providing the relief they sought.
In the late 1820′s, the nation suffered an economic downturn, with South Carolina being hit especially hard. The government enacted high protective tariffs (high tariffs on imports, particularly finished goods). The North, industrial as it was, manufactured finished goods but needed raw materials (such as cotton, sugar, etc) while the South, an agrarian society, purchased almost all finished products from imports. It also made most of its money from its export of cotton, tobacco, and sugar. The tariff, as the South viewed it, harmed the South while at the same time providing an enormous benefit to the North. With the higher prices on imported finished goods, it had the effect of “protecting” the products of the North. In other words, the finished goods of the North would be preferred over imports because of the price. The South would be forced to buy products from the North, thus enriching the North. On the other hand, because of the United States’ high protective tariffs, other countries retaliated by imposing high tariffs on American imports, which greatly harmed the South. To compete, the South had to lower her prices. Like a vulture, the Northern industries noticed that Southern cotton, sugar, etc weren’t selling and took advantage of the fact that they could buy her goods at reduced prices. South Carolina was opposed most vehemently to the protective tariffs. South Carolina believed that a “common government” should serve both regions equally and in this case, it was harming the South in order to enrich the North. South Carolina alleged that the tariffs were extremely detrimental to her well-being.
In the summer of 1828, South Carolina state representative Robert Barnwell Rhett appealed to the governor and to his constituents to resist the majority in Congress regarding the high tariff (referred to as the “Tariff of Abominations”). Rhett emphasized the danger of doing nothing:
“But if you are doubtful of yourselves – if you are not prepared to follow up your principles wherever they may lead, to their very last consequence – if you love life better than honor,…. prefer ease to perilous liberty and glory, then awake not! Stir not! Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair.”
Also in 1828, John Calhoun published his “Exposition and Protest,” although anonymously, in which he discussed Nullification. (He was Andrew Jackson’s Vice President at the time and Jackson was strongly opposed to Nullification):
“If it be conceded, as it must be by everyone who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion.”
In 1832, inspired by Calhoun’s defense of Nullification as the rightful remedy to not suffer unconstitutional federal legislation (he strongly supported and promoted the Kentucky and Virginia Resolutions, by Thomas Jefferson and James Madison, respectively), South Carolina decided to use the doctrine to escape the oppression of the tariff. Its position was that Nullification could be used by a state to resist a federal law that was not specifically authorized by the U.S. Constitution. South Carolina then assembled a democratically-elected convention and issued an Ordinance of Nullification. This ordinance declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of South Carolina.
The Ordinance of Nullification read:
“Whereas the Congress of the United States by various acts, purporting to be acts laying duties and imposts on foreign imports, but in reality intended for the protection of domestic manufactures and the giving of bounties to classes and individuals engaged in particular employments, at the expense and to the injury and oppression of other classes and individuals, and by wholly exempting from taxation certain foreign commodities, such as are not produced or manufactured in the United States, to afford a pretext for imposing higher and excessive duties on articles similar to those intended to be protected, bath exceeded its just powers under the constitution, which confers on it no authority to afford such protection, and bath violated the true meaning and intent of the constitution, which provides for equality in imposing the burdens of taxation upon the several States and portions of the confederacy: And whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish, hath raised and collected unnecessary revenue for objects unauthorized by the constitution.
We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled “An act in alteration of the several acts imposing duties on imports,” approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled “An act to alter and amend the several acts imposing duties on imports,” approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.”
The Ordinance of Nullification was not received well and soon escalated to what came to be referred to as the Nullification of 1832. Andrew Jackson was inflamed and was intent on arresting Calhoun and having him hang in Washington DC. He also had Congress pass the Force Bill which authorized the use of military force against any state that resisted the tariff acts. It was feared that South Carolina would secede if pushed, and so, the members of the US Senate and then House came together to work out a solution. In 1833, Senator Henry Clay and Senator Calhoun proposed a compromise bill to resolve the Crisis. The Tariff of 1833 (also known as the Compromise Tariff of 1833), would gradually reduce the tariff rates over a 10-year period to the levels set in the Tariff of 1816 – an average of 20% lower. The compromise bill was accepted by South Carolina and passed the US Congress and thus effectively ended the Nullification Crisis. South Carolina got the relief it sought.
As a side note, Abraham Lincoln, who ran on the Republican Platform for president in the election of 1860, was originally a Whig and was still a Whig at heart. He was a true follower of Senator Henry Cabot Lodge. As such, he was a strong supporter of protective tariffs and promised to raise the tariff to the 1828 rate. Is it any wonder why tensions in the South were elevated with the election of Lincoln?
Although the concepts of states’ rights and nullification are historically associated with the South, they were employed by northern states to resist the Fugitive Slave Act of 1850. While the southern states defied the federal government by refusing to accept the abominable tariffs, the northern states defied the government by refusing to enforce the Fugitive Slave Act, which they believed was an unconstitutional commandeering of the state and at its core, a repugnant law that offended their conscience. Under this law, stringent measures were imposed to catch runaway slaves. These included:
Penalizing federal officials that did not enforce the law
Rewarding federal officials that did enforce law
Requiring free citizens to help capture runaway slaves
Fining or imprisoning citizens helping runaways escape
Prohibiting runaways from testifying on their own behalf in court
Denying jury trials to runaways
Special federal commissions, not courts, worked with U.S. marshals to handle runaway cases. Commissioners and marshals who failed to hold captured runaways could be sued, thus compelling them to enforce the law. They received $10 for every runaway delivered to a claimant, but only $5 for cases in which the runaway was freed. This provided a financial incentive to send even free black men and women into slavery. The law not only jeopardized the liberty of every black citizen, but it also infringed on the freedom of white citizens by forcing them to hunt for runaways against their will.
State and local governments openly defied the law:
1). The legislatures of Maine, Massachusetts, Connecticut, Rhode Island, Michigan, and Wisconsin passed “personal liberty laws” making it nearly impossible to enforce the Fugitive Slave Act in those states.
2). The Wisconsin Supreme Court declared that the Tenth Amendment protected states from repugnant federal laws like the Fugitive Slave Act, specifically citing the Virginia and Kentucky Resolutions of 1798 as the basis for its opinion.
3). The Chicago City Council called northern congressmen who supported the act “traitors” like “Benedict Arnold and Judas Iscariot.”
4). When the U.S. Supreme Court ruled that states could not free federal prisoners convicted of helping runaways, the Wisconsin legislature called “this assumption of jurisdiction by the federal judiciary… an act of undelegated power, void, and of no force…” (The Wisconsin Supreme Court nullified the Supreme Court’s decision. See discussion below)
In addition to local governments, the people themselves took matters into their own hands:
1). In Syracuse, New York, in 1851 a jury effectively nullified the law by acquitting all but one of 26 people who had been arrested for freeing William “Jerry” Henry. Among those 26 persons arrested and tried was a US Senator and the former Governor of NY. Jerry ultimately escaped to Canada.
2). When Joshua Glover was captured by U.S. marshals in Milwaukee, Wisconsin, the sheriff supported local opinion by freeing Glover and jailing the marshals; Glover also escaped to Canada.
3). In Pennsylvania, a mob of free blacks killed a slaveholder attempting to capture a runaway.
4). Military force was needed to disperse a mass meeting after a black man was apprehended in Detroit.
5). Throughout Ohio, town meetings branded any northern official who helped enforce the law “an enemy of the human race.”
6). Other cities and states refused to help enforce the law simply because it was too expensive. Returning one runaway to the South cost the city of Boston $5,000. Boston officials never enforced the law again. All of these acts of defiance and nullification were ironically adopted from principles first introduced and later invoked by southerners.
When Wisconsin residents refused to enforce the Fugitive Slave Law and return escaped slave, Glover, an ensuing series of arrests would give the state Supreme Court the opportunity to use Nullification to proclaim the law’s unconstitutionality. The case would be known as In re Booth.
What has become known as the Booth case is actually a series of decisions from the Wisconsin Supreme Court beginning in 1854 and one from the U.S. Supreme Court, Ableman v. Booth, 62 U.S. 514 (1859), leading to a final published decision by the Wisconsin Supreme Court in Ableman v. Booth, 11 Wis. 501 (1859). These decisions reflect Wisconsin’s attempted nullification of the federal fugitive slave law, the expansion of the state’s rights movement and Wisconsin’s defiance of federal judicial authority. The Wisconsin Supreme Court in Booth unanimously declared the Fugitive Slave Act of 1850 unconstitutional. The U.S. Supreme Court overturned that decision but the Wisconsin Supreme Court refused to file the U.S. Court’s mandate upholding the fugitive slave law. That mandate has never been filed.
When the U.S. Constitution was drafted, slavery existed in this country. Article IV, Section 2 provided that: ”No person held to service or labor in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.”
Based on this provision, Congress in 1793 passed a law that gave slave owners the power to have a runaway slave arrested in any state and returned. The law remained intact until 1850, by which time the moral sentiment of the North against slavery had become aroused; the Liberty Party had been organized, the underground railroad had flourished and many northern men and women refused to act as slave catchers or assist in perpetuating slavery. Because of the increasing difficulty the slave holders faced in reclaiming runaway slaves, Congress passed the Fugitive Slave Act of 1850. The law placed the mechanism for capturing runaway slaves in the hands of federal officers. It provided that these cases would be heard by a federal judge or court commissioner and allowed the slave owner to prove the debt owed by the slave but precluded testimony from the fugitive entirely. The new law also increased the penalties for resistance and for concealment of fugitives.
Although it was intended as a compromise, the new law actually fueled the flames of anti-slavery sentiment and from 1854 to 1861, Wisconsin politics was dominated by the question of whether the state had to defer to the federal government’s efforts to enforce the Fugitive Slave Act.
In the spring of 1852, a slave named Joshua Glover escaped from a Missouri plantation and made his way to Racine, where he found work at a sawmill. Two years later, his owner tracked him down and had him apprehended by federal marshals under the Fugitive Slave Act. Glover was held in the Milwaukee County Jail pending a hearing. When Sherman M. Booth, editor of the Milwaukee abolitionist newspaper, The Free Democrat, heard of the capture, he is said to have mounted his horse and galloped through the streets of Milwaukee shouting: “Freemen! To the rescue! Slave catchers are in our midst! Be at the courthouse at 2:00!” Booth’s lawyers then persuaded a Milwaukee County Court judge to issue a writ of habeas corpus (a judicial order freeing Booth) directing the U.S. marshal to bring Glover before the county judge and justify his detention
Before the hearing could take place, Booth appointed a committee to prevent the “kidnapping” of Glover by the federal authorities. After Booth made a fiery speech, a mob led by one of the other committeemen, John Ryecraft, battered down the jail doors, freed Glover and spirited him away to Canada. Federal authorities charged Booth with assisting Glover’s escape. Booth was released on bail but two months later, at his own request, he was delivered to the U.S. Marshal. Booth’s surrender was calculated to bring a test case in the state courts challenging the constitutionality of the fugitive slave law. On the day after the surrender, Booth’s attorney, Byron Paine (later a justice of the Wisconsin Supreme Court), successfully applied to Wisconsin Supreme Court Justice Abram D. Smith for a writ of habeas corpus. At that hearing, Smith asked the parties to address the constitutionality of the fugitive slave law. Paine, citing Thomas Jefferson’s writings, said states have the right to impose their authority when their sovereign rights are violated by the federal government. Paine argued that Congress had no authority to make laws based on the fugitive slave clause of the Constitution and that the Act of 1850 was unconstitutional because it denied a trial by jury and vested judicial powers in court commissioners. On June 7, 1854, Smith ordered that Booth be released, finding the warrant of commitment defective and the fugitive slave law unconstitutional.
When the US Attorney General learned of the decision, he appealed it to the US Supreme Court. The case - Ableman v. Booth – was heard in 1859, just one year before slavery would a major issue of the presidential election. In that case, the Supreme Court upheld the constitutionality of the Law and further held that Wisconsin did not have the power to nullify the Fugitive Slave Act. In a decision written by Justice Roger Taney (who also wrote the infamous Dred Scott decision): “No power is more clearly conferred by the Constitution and laws of the United States than the power of this court to decide, ultimately and finally, all cases arising under such Constitution and laws.” [pg. 62]
The justices of the Wisconsin Supreme Court justices were then instructed to file the U.S. Supreme Court’s mandates reversing the judgments and dismissals in the Booth case. Although there had been some changes to the bench in the years since the case was heard, the majority opinion was that the federal court had no power to review the judgments of the state Supreme Court and Wisconsin was well within its right to nullify the Fugitive Slave Law, and so the justices voted not to file the mandates in the Booth cases. The Wisconsin Supreme Court would write: “The Supreme Court said that the States cannot, therefore, be compelled to enforce the Fugitive Slave Act. We regard the action of the Supreme Court of the US, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the Constitution. This assumption of jurisdiction by the federal judiciary is an act of undelegated power, and therefore without authority, void, and of no force.”
[Booth was subsequently arrested by federal agents and placed in a state penitentiary. Since Wisconsin did not assert its duty to interpose and prevent federal agents from such conduct, Booth remained in custody. But only a few short months later, on the eve of Lincoln's inauguration, President Buchanan would pardon him].
Wisconsin successfully nullified the Fugitive Slave Law in its state. It did not back down. It did not reverse the judgment on Booth, as the US Supreme Court instructed. Although the Civil War would start in less than two years and the affections that bound North and South together would be strained, the state of Wisconsin maintained its position on the constitutionality of the Fugitive Slave Law and held to its conviction that it was unenforceable in its borders.
Contrary to the critics’ position that Nullification was used to promote and support slavery, the only real time we saw it used with regard to slavery is in an effort to discourage enforcement of laws to return slaves that have successfully escaped and to therefore encourage their escape to the north.
The critics of Nullification go even further and try to discredit Nullification by blaming it, for example, for Arkansas’ refusal to integrate their schools following the Brown v. Board of Education decision in 1953 which demanded that school segregation be ended immediately. Martin Luther King Jr. himself vilified Nullification in his “I Have a Dream” speech in Washington DC in 1963. He said: “I have a dream that my four little children will one day live in a nation where they will not be judged by the color of their skin but by their character. I have a dream today. I have a dream that one day down in Alabama, with its vicious racists, with its governor having his lips dripping with the words of interposition and nullification; that one day right down in Alabama little black boys and black girls will be able to join hands with little white boys and white girls as sisters and brothers.”
To condemn Nullification for one bad application would require that we also condemn the Supreme Court because of its Dred Scott decision. Besides, there are many constitutional scholars who don’t wonder if the Brown decision was decided using an interpretation that itself was unconstitutional. While it should be universally agreed that purposeful segregation of the races based on the assumption that blacks are an inferior race had to end. It was a shameful policy that has rocked our moral conscience as a nation. But, to use the very same criteria (race), especially as in the bussing cases, to remedy for the past sins of segregation has been challenged as an unconstitutional exercise of judicial power. A violation of the 14th Amendment is a violation of the 14th Amendment, whether it’s used for bad or for good.
Martin Luther King Jr. used the words Nullification and Interposition for effect and to elicit passions that evoke memories of slavery and efforts by the South to deny them Civil Rights. Had he been honest, he would have also praised Nullification for providing the North with the reason not to enforce the Fugitive Slave Laws and condemning runaway slaves to a life of continued forced servitude as nothing more than personal property.
It was Arkansas’ actions in response to the Brown v. Board of Education decision that led to the Cooper v. Aaron case and appeared to give Nullification opponents ammunition. In the wake of the Brown case, the school district of Little Rock, Arkansas formulated a plan to desegregate its schools but most other school districts in the state opposed the Supreme Court’s rulings and attempted to find ways to perpetuate segregation. As a result, the Arkansas state legislature amended the state constitution to oppose desegregation and then passed a law relieving children from mandatory attendance at integrated schools. The school board of Little Rock, however, ignored then mandate and continued on with the desegregation program. In fact, it was this decision that led to the incident known as the “Little Rock Nine” incident (or the “Little Rock School Crisis of 1957″). In 1957, the NAACP enrolled nine black children at Little Rock Central High. Arkansas’ Governor Orval Faubus energetically opposed the desegregation plan and even deployed the Arkansas National Guard to block the entrance to the school. On September 9, the Little Rock School District issued a statement condemning the governor’s deployment of soldiers to the school, and on September 24, President Eisenhower ordered the 101st Airborne Division of the US Army to Little Rock and federalized the entire 10,000-member Arkansas National Guard, taking it out of the hands of Faubus. The crisis was over and the nine students were finally permitted to attend Little Rock Central.
On February 20, 1958, five months after the integration crisis, members of the Arkansas state school board (along with the Superintendent of Schools) filed suit in the US District Court for the Eastern District of Arkansas, urging suspension of Little Rock’s plan of desegregation. They alleged that public hostility to desegregation and that the opposition of Governor Faubus and the state legislature created an intolerable and chaotic situation. The relief the plaintiffs requested was for the black children to be returned to segregated schools and for the implementation of the desegregation plan to be postponed for two and a half years. The case would make its way to the Supreme Court later that same year.
In that case, Cooper v. Aaron, the Supreme Court, in a unanimous decision in Cooper v. Aaron, noted that although the school board had apparently acted in good faith, it was nonetheless constitutionally impermissible under the Equal Protection Clause to maintain law and order by depriving the black students their equal rights under the law. It began its analysis by noting that Justice John Marshall, in 1803 in the landmark case of Marbury v. Madison, declared that “It is emphatically the province and duty of the judicial department to say what the law is.” The Marbury decision established the basic principle that the federal judiciary is supreme in the exposition of the law of the Constitution. The Cooper opinion then went on to state: “The interpretation of the Fourteenth Amendment enunciated by this Court in the Brown case is the supreme law of the land under Article VI of the Constitution (the Supremacy Clause) which therefore makes it of binding effect on the States.” Furthermore, the Court reasoned, since every state official takes an oath to support the US Constitution, they are bound to solemnly support the Constitution and such rulings. The Court then rejected the notion that a state has no duty to obey a federal court order that it believes to be unconstitutional. In other words, the Court rejected nullification and interposition. “In short, the constitutional rights of children not to be discriminated against in school admission on grounds of race or color declared by this Court in the Brown case 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.”
It is worth noting that the Framers and Founding Fathers never assigned the Supreme Court the responsibility that Justice Marshall assumed for the Court in Marbury v. Madison – that it shall be the sole province of the Supreme Court to declare what the Constitution says and means. It is a power that the Court, a branch of the federal government, assigned and delegated to itself. And that decision has never been challenged, even though the Federalist Papers speak differently of the function of the federal judiciary.
Furthermore, the Supreme Court has no more the right to declare Nullification an improper check and balance on the power of the federal government as it does on the Separation of Powers doctrine or the President’s Veto power.
Some legal scholars have publicly criticized the Court’s rationale in Cooper. Perhaps the most famous criticism comes from former US Attorney General (under Ronald Reagan) and brilliant constitutional attorney, Edwin Meese III, in his law review article entitled The Law of the Constitution. In that article, Meese accused the Supreme Court of taking too much power for itself by setting itself up as the sole institution responsible for the interpretation of the Constitution. He wrote that while judicial interpretation of the Constitution binds the parties of the case, it should not establish a supreme law of the land that must be accepted by all persons.
Finally, the argument that the Civil War settled the issue of Nullification is a preposterous one. Core constitutional principles weren’t destroyed, even though President Lincoln did everything in his power to destroy the Constitution itself. Just because a constitutional government was suspended and the proper role of the federal government was temporarily derailed does not mean our system was abandoned. The US Constitution was never rejected and supplanted by another. Our supreme law was merely modified by a few amendments and the southern states were punished (severely) for their audacity in seceding.
As Jefferson Davis indeed predicted, the northern victors would succeed in teaching history which vindicates their efforts and violations. And so, through our public schools, the great majority of books, government opinion, and even the significance of the Lincoln Memorial on the national mall, we are led to believe that Abraham Lincoln was our most important and beloved president. The reality, according to historian Larry Tagg in his book The Unpopular Mr. Lincoln: America’s Most Reviled President, is that he was the most hated of all American presidents during his lifetime. He was so thoroughly hated in the North (especially in New York) that the New York Times editorialized a wish that he would be assassinated. Thomas DiLorenzo, who has done extensive research on Lincoln, said the hatred was perfectly understandable. Lincoln committed so many constitutional violations that even Congress’ collective head was spinning. The Congressional record is full of discussion as to the extent of his violations. He illegally suspended Habeas Corpus, imprisoned tens of thousands of Northern political critics without due process, and shut down over 300 opposition newspapers. If they still tried to use the mail to distribute news, he called out the army, seized their property, and prevented their access to the US mail. He enforced military conscription with the murder of hundreds of New York City draft protesters in 1863 and with the mass execution of deserters from his army. He deported a congressional critic (Democratic Congressman Clement Vallandigham of Ohio); confiscated firearms; and issued an arrest warrant for the Chief Justice of the Supreme Court (Roger Taney) when he issued an opinion that only Congress could legally suspend Habeas Corpus. He blocked southern ports without authorization of Congress (which is far and above the type of action necessary to quash a rebellion; it’s an act of war). Most of all, he waged an unnecessary war, not authorized by Congress, that resulted in the death of 1 in every 4 young men (3.4% of the population at the time; 3.4% of today’s population would be approximately 8.5 million Americans). The real legacy of the Civil War, is Lincoln’s “false virtue” – that he felt justified in trampling all over the Declaration of Independence, the US Constitution, and the sovereign rights of the states in order to do what he personally believed was necessary. To say Lincoln saved the Union by waging the Civil War is like saying a man saved his marriage by beating his wife into submission.
For those who believe that the Civil War settled the question of whether Nullification is a proper remedy, then I ask this: How is it that a constitutional remedy can be destroyed by unconstitutional conduct by the President of the United States and the US Congress? How the essential principles of self-preservation and self-government proclaimed in the Declaration of Independence be destroyed by the very institution that that document assured would be established to protect those rights? How can a liberty-minded people buy into this fatal argument that it is OK for the US government, a creature of the People themselves, to take a hostile position with respect to the Declaration of Independence and deny them the promise “that whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.” How is it that a nation so singular in its purpose when it fought the Revolutionary War (to secede from an oppressive government, in order to live free and govern themselves accordingly) has deteriorated to the point that its people can no longer make the essential connection between their Constitution and the principles proclaimed in the Declaration which underlie it? It was all about liberty and freedom – the condition of independence (liberty) and the right to go about our business without being controlled or subjugated (freedom). In explaining why it was so important for our founding colonists to stand up against the growing tyranny of the British King and Parliament, Mercy Otis Warren perhaps articulated it best when he said, in 1774, “in order to preserve inviolate, and to convey to their children the inherent rights of men, conferred on all by the God of nature, and the privileges of Englishmen claimed by Americans from the sacred sanction of compacts.” And so the Declaration proclaimed the supremacy of Man (“to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle him”) and outlined the purpose of government (to secure and protect his rights). By the very words of the Declaration, man has inalienable rights that no government can take away and he has the right to defend them and preserve them. That’s why the document provides that man can “alter or abolish” his government when it becomes destructive of his rights and the free exercise thereof. In other words, the rights of man would always trump the power of government; and while man has the right of self-preservation, the government has no such right.
The Constitution merely designed a government according to the moral dictates of the Declaration. That’s why it was limited in scope and permeated with so many checks and balances in order that it remain so. Thomas Paine wrote: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” Rights of Man (1791-1792)
The Supreme Court, in one of its earliest cases – Vanhorne’s Lessee v. Dorance (1795), which addressed a property matter as between the states of Pennsylvania and Connecticut – Judge Paterson explained: “What is a Constitution? It is the form of government, delineated by the mighty hand of the people, in which certain first principles of fundamental laws are established. The Constitution is certain and fixed; it contains the permanent will of the people and is the supreme law of the land…” [Indeed, the unprecedented task confronting the Court in its infancy was that of interpreting our new written constitution so as not to disturb the settled, existing framework of the document as written, intended, and understood by the States when they signed it. That task was short-lived].
We are NOT free when we wait for the government or for the Supreme Court to tell us what our rights are or tell us that avenues that were once open to us to restrain the power and influence of government over our once-free lives are no longer available (because they threaten the power of government).
Again, the government was instituted to protect that rights of self-government and self-determination for us; not to destroy them. And if we believe that we have the right to define our government and reclaim the rights that We the People are endowed with that a government is trying to take away or has taken away, then we have to believe in Nullification. It is the rightful constitutional remedy that restores the proper balance of sovereign power – peacefully.
Unfortunately, all too often the government is more concerned in controlling the governed rather than controlling itself, and so the responsibility falls to us to control it.
The TRUTH about Nullification is that it is legitimate and is the only way to effect a meaningful check on the federal government when the executive, legislative, and judicial branches unite on an incorrect interpretation of the Constitu