Nullification: A Brief Review of a Doctrine

I consider, then, the power to annul a law of the United States, assumed by one State, 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.

Andrew Jackson, Proclamation Regarding Nullification, December 10, 1832

My co-blogger Paul has a first rate post here at The American Catholic in which he discusses why nullification, the idea that a state can opt out of a federal law, is a truly bad idea.  In the comments to the post Thomas Woods shows up.  Mr. Woods is the foremost promoter of nullification today.

One of the many hilarious things about this latest boomlet for nullification created by Thomas Woods and his cronies in crankdom, is how it flies in the face of American history, not only in theory but in practice.

They seize upon the Kentucky Resolutions and the Virginia Resolution of 1798 without really understanding what was going on. These were part and parcel of the ongoing political war of the Republicans against the Federalists, and as political theater they were quite successful in helping rouse public fury against the Alien and Sedition Acts which led to Republican victory at the polls in 1800. Once the Resolutions had helped achieve success at the polls, they were quietly abandoned by the Republicans since they had served their political purpose.

In the Nullification Crisis of 1832, South Carolina’s first attempt to destroy the Union and start a civil war, a compromise was ultimately worked out in Congress to lower the tariffs and the nullification movement in South Carolina collapsed, much to the chagrin of some fireeaters like Rhett who would still be around to help start the Civil War in the secession crisis of 1860-61.

Modern day advocates of nullification attempt to dragoon the personal liberty laws passed by some Northern states to attempt to get around the fugitive slave law into the nullification debate. (I suspect that this example is drug in to get around the fact that throughout the history of this country nullification has often been allied with racist movements.) Of course such attempts were futile as the US Supreme Court ruled in 1842 that such laws were unconstitutional, as they clearly were at the time. What of course ended the fugitive slave law was the Civil War and the constitutional amendments that resulted. Mr. Woods, to show his thanks for this, is welcome to join me and my family next summer when we go to Lincoln’s tomb to pray for the repose of his soul.

Nullification was often brought up by segregationists in their “massive resistance” campaign against Brown v. Board of education. As in the rest of American history, nullification went nowhere fast in this less than stellar moment in our nation’s history. Martin Luther King, Jr. referred to this in his I Have a Dream Speech in 1963:
“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” — one day right there 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.”

What made nullification more than a historical footnote today is of course ObamaCare, and the justified opposition to it, which I fully share. However, the political process is working. The Republicans took the House, made gains in the Senate, and control most governorships and state legislatures, largely because the Democrats acted completely fecklessly with no concern for the public opposition they were building. Suits against ObamaCare are proceeding with some success in the federal courts. Crack-brained nostrums like nullification are not needed in America, while our political and legal systems are functioning, which they are.

I do confess however, that I almost hope that one of the States is foolish enough to think that nullification could work. The first federal lawsuit over the issue would rapidly establish that nullification has as much standing in the federal courts as a flat earth has in a geography class. The state government would then be in a position of obeying the ruling of the federal court, or calling the national guard to arms. One guess as to which course they would choose. Of course if they chose to attempt armed revolution I assume that Mr. Woods and his friends will be on the barricades, although that would be somewhat more dangerous than writing books or debating on the internet.

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Published in: on January 26, 2011 at 9:25 am  Comments (4)  
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4 Comments

  1. Fantastic piece! I recently listened to a lecture by Woods and was astounded. I find his position on the matter to be untenable and nearly absurd. I have found myself in a similar position to yours, hoping that some state tries to push this so the courts can make a statement banishing this monstrosity once and for all.

  2. “His cronies in crankdom”

    Ha!!!!

  3. Excellent post Donald. Listening the arguments on behalf of nullification it’s almost as if they concede that it’s not really constitutional, but the system is so broken (they contend) that we have to resort to this as a last, desperate measure. To me it’s almost a form of right-wing utopianism. It’s certainly not conservative.

  4. Those of you who scoff at an idea that both Jefferson and Madison was valid, won’t be laughing for long. There is a move underway now to amend the U.S. Constitution to allow 2/3 of the States to repeal any Federal Law. This should have been done long ago.

    Furthermore, I think it is disingenuous to compare the nullification/tariff crisis of the 1830′s to what is being proposed today by those who want the States to nullify Obamacare. Congress has Constitutional authority to tax and impose tariffs. South Carolina really did not have the right to nullify said tariffs (though they were indeed unfair). The Constitution does NOT ,however, give Congress the right to be in the health care business. Therefore, any State can indeed nullify Obamacare. Now of course the courts can validate any unconstitutional Federal law they wish. They can use the theory of “a living ,breathing Constitution” to impose their will on the masses, and they do. That’s when the States have no choice but to take a stand and resist unauthorized Federal intrusion.

    Southerners and segregationists did not invent the nullification theory. In fact, not tool ong after the ratifying of the Constitution, even northern States embraced the idea..

    In 1812, the Connecticut State Assembly issued the following statement,

    During the War of 1812, Massachusetts and Connecticut were ordered to call out their respective militias for the purpose of defending the coast. The call derived from the federal government’s authority to call the state militias into service “to execute the Laws of the Union, suppress Insurrections and repel invasions.”

    Massachusetts Governor Caleb Strong, however, maintained that the states reserved the power to determine whether any of these three conditions held. At Strong’s request, the Massachusetts Supreme Court offered its opinion. That court agreed with the governor: “As this power is not delegated to the United States by the Federal Constitution, nor prohibited by it to the states, it is reserved to the states, respectively; and from the nature of the power, it must be exercised by those with whom the states have respectively entrusted the chief command of the militia.”

    The Connecticut State Assembly agreed with Massachusetts..

    “But it must not be forgotten, that the State of Connecticut is a FREE SOVEREIGN and INDEPENDENT State; that the United States are a confederacy of States; that we are a confederated and not a consolidated Republic. The Governor of this State is under a high and solemn obligation, “to maintain the lawful rights and privileges thereof, as a sovereign, free and independent State,”

    Some here scoff at Woods, but he is only quoting from history…

    “The Embargo of 1807—1809

    In retaliation against British and French depredations against American neutral rights on the seas, the federal government under Thomas Jefferson in late 1807 declared an embargo, according to which no American ship could depart for any foreign port anywhere in the world. (The rationale was that trade with the U.S. was a key ingredient in British and French prosperity, and thus that economic pressure might persuade them to change their policies.) The U.S. Navy was granted the power to stop and search any ship within U.S. jurisdiction if its officers had “reason to suspect” the ship was violating the embargo. Likewise, customs officials were “authorized to detain any vessel…whenever in their opinions the intention is to violate or evade any provisions of the acts laying an embargo.” Such standards fell far short of the “probable cause” requirement that generally governed the issuing of warrants for searches.

    New England was especially hard hit by the embargo because so many of its people were employed either directly in foreign commerce or in proximate fields, and it was there that opposition to the policy was concentrated. In 1808 a federal district court, in the case of United States v. The William, ruled the embargo constitutional. The Massachusetts legislature begged to differ. Both houses declared the embargo acts to be “in many particulars, unjust, oppressive, and unconstitutional.” “While this State maintains its sovereignty and independence, all the citizens can find protection against outrage and injustice in the strong arm of the State government,” they said. The embargo, furthermore, was “not legally binding on the citizens of this State.”

    In the midst of the crisis, a New York congressman, giving his explicit sanction to the Virginia and Kentucky Resolutions, said, “Why should not Massachusetts take the same stand, when she thinks herself about to be destroyed?” “If any State Legislature had believed the Act to be unconstitutional,” asked a Connecticut congressman, “would it not have been their duty not to comply?” He added that the state legislatures, “whose members are sworn to support the Constitution, may refuse assistance, aid or cooperation” if they regarded an act as unconstitutional, and so could state officials.

    Connecticut governor Jonathan Trumbull shared these views. “Whenever our national legislature is led to overleap the prescribed bounds of their constitutional powers, on the State Legislatures, in great emergencies, devolves the arduous task — it is their right — it becomes their duty, to interpose their protecting shield between the right and liberty of the people, and the assumed power of the General Government.” Connecticut’s General Assembly passed a resolution that, among other things, directed all executive officials in the State not to afford “any official aid or co-operation in the execution of the act aforesaid.”

    The General Assembly furthermore declared: “Resolved, that to preserve the Union, and support the Constitution of the United States, it becomes the duty of the Legislatures of the States, in such a crisis of affairs, vigilantly to watch over, and vigorously to maintain, the powers not delegated to the United States, but reserved to the States respectively, or to the people; and that a due regard to this duty, will not permit this Assembly to assist, or concur in giving effect to the aforesaid unconstitutional act, passed, to enforce the embargo.”

    Rhode Island, when the embargo was at its end, declared that her legislature possessed the duty “to interpose for the purpose of protecting [the people of Rhode Island] from the ruinous inflictions of usurped and unconstitutional power.”


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