- Nullification (U.S. Constitution)
Nullification is a legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory is based on a view that the States formed the Union by an agreement (or "compact") among the States, and that as creators of the federal government, the States have the final authority to determine the limits of the power of that government. Under this, the compact theory, the States and not the federal courts are the ultimate interpreters of the extent of the federal government's power. The States therefore may reject, or nullify, federal laws that the States believe are beyond the federal government's constitutional powers. The related idea of interposition is a theory that a U.S. State has the right to "interpose" itself when the federal government enacts laws that the state believes to be unconstitutional. A more extreme assertion of state sovereignty is the related action of secession, by which a state terminates its political affiliation with the Union. Thomas Jefferson and James Madison set forth the theories of nullification and interposition in the Kentucky and Virginia Resolutions in 1798.
The theory of nullification never has been legally upheld. Rather, the courts repeatedly have rejected nullification, finding that the states do not have the power to nullify federal laws. The courts have found that under the Constitution, federal law is superior to state law, and that the Constitution gives the federal courts the power to interpret the Constitution. Therefore, 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.
Between 1798 and the beginning of the Civil War in 1861, several states threatened or attempted nullification of various federal laws. None of these efforts was legally upheld. The Kentucky and Virginia Resolutions were rejected by the other states. The Supreme Court rejected nullification attempts in a series of decisions. The Civil War ended most nullification efforts. In the 1950s, southern states attempted to use nullification and interposition to prevent integration of their schools. These attempts failed when the Supreme Court explicitly rejected nullification in Cooper v. Aaron, again holding that the states may not nullify federal law.
The Constitution and the Theory of Nullification
Provisions of the Constitution
The Constitution does not contain any clause providing that the states have the power to declare federal laws unconstitutional. Supporters of nullification have argued that the states' power of nullification is inherent in the nature of the federal system. They have argued that before the Constitution was ratified, the states essentially were separate nations, with full sovereignty over their affairs. The Constitution is a contract, or "compact," among the states by which the states delegated certain powers to the federal government, while reserving all other powers to themselves. The states, as parties to the compact, retained the inherent right to judge compliance with the compact. If the states determine that the federal government has exceeded its delegated powers, the states may declare federal laws unconstitutional. The power to declare federal laws unconstitutional not only is inherent in the concept of state sovereignty, but also is one of the powers reserved to the states by the Tenth Amendment.
This view of the Constitution has been rejected by the courts. The courts have held that under the Constitution, the power to declare federal laws unconstitutional lies with the federal judiciary, not the states. The courts have found that the states do not have the power to nullify federal laws. The courts have rejected the compact theory, finding that the Constitution is a form of law established by the people and binding on the states, rather than a compact among the states. Under the Supremacy Clause of Article VI, the Constitution and federal laws adopted in pursuance thereof are the "supreme law of the land" and are superior to state law. Federal laws therefore cannot be negated by the states, so long as those laws were adopted in pursuance of—that is, consistent with—the Constitution. Whether a federal law is consistent with the Constitution is a matter of interpretation of the law, which is inherently a judicial function. The federal judicial power granted by Article III of the Constitution gives the federal courts authority over all cases arising under the Constitution and federal laws. The federal courts therefore have the power to determine whether federal laws are constitutional, with the Supreme Court having final authority.
Thus, the prevailing view is that under the provisions of the Constitution, the final power to declare federal laws unconstitutional has been delegated to the federal courts and does not lie in the states, and that the states therefore do not have the power to nullify federal law.
The Constitutional Convention and state ratifying conventions
The concept of nullification of federal law by the states was not discussed at the Constitutional Convention. On the other hand, the power of the federal courts to declare federal laws unconstitutional was discussed by at least fifteen delegates from nine states. For example, George Mason said that under the Constitution, federal judges "could declare an unconstitutional law void." James Madison said: "A law violating a constitution established by the people themselves, would be considered by the Judges as null & void." Several of the delegates said that the federal courts would have power to determine disputes between the federal government and the states, indicating that the Supreme Court would have final authority over the states. Charles Pinckney referred to federal judges as "Umpires between the U. States and the individual States," while John Rutledge indicated that the Supreme Court would "judge between the U.S. and particular states."
The records of the state ratifying conventions do not include any statements by delegates asserting that the states would have the power to nullify federal laws. It has been argued that certain statements in the Virginia ratifying convention, although not directly asserting a right of nullification, articulated a basis for the compact theory that later would be used to support the idea of nullification. Edmund Randolph and George Nicholas stated that Virginia's ratification of the Constitution would constitute its agreement to a contract, and that if Virginia were to state its understanding at the time of ratification that the federal government could exercise only its delegated powers, this understanding would become part of the contract and would be binding on the federal government. Then, said Randolph, "we should be at liberty to consider as a violation of the Constitution every exercise of a power not expressly delegated therein." These statements implied a belief that Virginia, as a party to the contract, would have a right to judge the constitutional limits of federal power.
The records of the state ratifying conventions include over three dozen statements in more than half the states asserting that the federal courts would have the power to declare laws unconstitutional. Luther Martin's letter to the Maryland ratifying convention asserted that the power to declare laws unconstitutional could be exercised solely by the federal courts, and that the states would be bound by federal court decisions: "Whether, therefore, any laws or regulations of the Congress, any acts of its President or other officers, are contrary to, or not warranted by, the Constitution, rests only with the judges, who are appointed by Congress, to determine; by whose determinations every state must be bound." John Marshall said in the Virginia convention that protection against infringement of the Constitution would be provided by the federal courts: "If [Congress] were to make a law not warranted by any of the powers enumerated, it would be considered by the [federal] judges as an infringement of the Constitution which they are to guard. . . . They would declare it void. . . . 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."
In short, nobody stated in the Constitutional Convention or the state ratifying conventions that the states would have the power to nullify federal laws. On the other hand, there were a number of statements in these conventions indicating that the federal courts would have the power to declare federal laws unconstitutional.
The Federalist Papers
The Federalist Papers do not indicate that the states have the power to nullify federal law. Rather, they say that the power to declare laws unconstitutional is delegated to the federal courts.
Federalist No. 33 recognizes that federal laws are supreme only if they are within the scope of the federal government's delegated powers. Federalist No. 39 directly addresses the question of who is to decide whether the federal government has exceeded its delegated powers and has infringed on the states' reserved powers. It explains that under the Constitution, this issue is to be decided by the Supreme Court, not the states: "[The federal government's] jurisdiction extends to certain enumerated objects only, and leaves to the several States a residuary and inviolable sovereignty over all other objects. It is true that in controversies relating to the boundary between the two jurisdictions, the tribunal which is ultimately to decide, is to be established under the general government. . . . Some such tribunal is clearly essential to prevent an appeal to the sword and a dissolution of the compact; and that it ought to be established under the general rather than under the local governments, or, to speak more properly, that it could be safely established under the first alone, is a position not likely to be combated."
Federalist No. 44 discusses the roles of the executive, the judiciary, the people, and the states in checking or preventing actions of Congress that exceed its delegated powers. According to Federalist No. 44, the role of the states is to "sound the alarm" regarding any unconstitutional exercise of power by Congress, and to assist in electing new representatives to Congress (the state legislatures elected Senators at that time). There is no indication in Federalist No. 44 that the states have the power to legally nullify federal law, although this arguably would have been an appropriate context in which to mention it if such a power were thought to exist.
Federalist No. 78 says that the federal courts have the power "to pronounce legislative acts void, because contrary to the Constitution." Federalist No. 80 asserts that the final authority to interpret the Constitution and federal law lies in the federal courts, not the states, because of the need for uniformity. Federalist No. 82 says that because of the need for uniformity and the federal government's need to effectively enforce its laws, the Constitution gives the Supreme Court the power to review decisions of state courts in cases arising under the Constitution or federal law.
The Kentucky and Virginia Resolutions
One of the earliest and best known examples of attempted nullification is to be found in the Kentucky and Virginia Resolutions of 1798, which were a protest against the Alien and Sedition Acts. In these resolutions, authors Thomas Jefferson and James Madison argued that "the states" are the ultimate interpreters of the Constitution and can declare federal laws unconstitutional when the federal government exceeds its delegated powers. These resolutions are considered the foundational documents of the theories of nullification and interposition.
The Kentucky Resolutions of 1798, written by Jefferson, asserted that the states formed the Constitution as a compact, delegating 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. When the federal government acts beyond the scope of its delegated powers, a state may determine that the federal government's "acts are unauthoritative, void, and of no force." The Kentucky Resolutions of 1799 added the assertion that when a federal law is unconstitutional, the remedy is "nullification" of the law by "the several states."
The Virginia Resolutions of 1798, written by Madison, asserted that when the federal government engages in "a deliberate, palpable, and dangerous exercise" of powers not granted by the Constitution, "the states, who are parties thereto, have the right, and are in 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." The Virginia resolutions do not explain what form this "interposition" might take.
The Kentucky and Virginia Resolutions did not purport to ban enforcement of the Alien and Sedition Acts. Rather, they declared that the Alien and Sedition Acts were unconstitutional, called for their repeal, and sought the support and cooperation of the other states.
The Kentucky and Virginia Resolutions were not accepted by any of the other states. Rather, ten states rejected the Resolutions, with seven states formally transmitting their rejections to Kentucky and Virginia and three other states passing resolutions expressing disapproval. At least six states responded to the Resolutions by taking the position that the constitutionality of acts of Congress is a question for the federal courts, not the state legislatures. For example, Vermont's resolution stated: "That the General Assembly of the state of Vermont do highly disapprove of the resolutions of the General Assembly of Virginia, as being unconstitutional in their nature, and dangerous in their tendency. It belongs not to state legislatures to decide on the constitutionality of laws made by the general government; this power being exclusively vested in the judiciary courts of the Union."
Virginia responded to the criticism of the other states by issuing the Report of 1800, written by Madison. The Report of 1800 affirmed and defended the Virginia Resolutions. The Report of 1800 also said that a declaration of unconstitutionality by the states would be only an expression of opinion designed to spur debate, rather than having the authoritative effect of a federal court decision. During the Nullification Crisis of the 1830s, Madison denounced as unconstitutional the concept of nullification of federal law by a state. Madison wrote, "But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined."
Nullification Attempts in the 19th Century
The Peters case
The Supreme Court first dealt with nullification in 1809 in the case of United States v. Peters, 9 U.S. (5 Cranch) 115 (1809). The Pennsylvania legislature passed an act purporting to nullify a federal court's decision in a case involving the entitlement to the prize money for a captured ship. The Pennsylvania statute stated that the federal court had acted unconstitutionally because it did not have jurisdiction, and that the federal court's judgment "was null and void." The Supreme Court rejected the contention that the Pennsylvania legislature had the power to nullify the federal court's judgment, stating: "If the legislatures of the several States may, at will, annul the judgments of the courts of the United States, and destroy the rights acquired under those 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."
In response, the Governor of Pennsylvania called out the state militia to prevent enforcement of the Supreme Court's judgment. However, the U.S. Marshal summoned a posse, carried out the Supreme Court's order, and arrested the leaders of the state militia. The Pennsylvania legislature passed a resolution declaring the action of the Supreme Court unconstitutional, invoking states' rights, and appealing to the other states for support. Eleven states responded by disapproving Pennsylvania's position. No state supported Pennsylvania. The Governor of Pennsylvania made a plea to President James Madison to intervene, but Madison affirmed the authority of the Supreme Court. The legislature backed down and withdrew the militia. Thus, Pennsylvania's attempt to nullify the federal court judgment was not successful.
Several New England states objected to the Embargo Act of 1807, which restricted foreign trade. The Massachusetts legislature passed a resolution stating that an act enforcing the embargo "is, in the opinion of the legislature, in many respects, unjust, oppressive and unconstitutional, and not legally binding on the citizens of this state." The Massachusetts resolution further stated that "the judicial courts are competent to decide this question, and to them every citizen, when aggrieved, ought to apply for redress." Massachusetts called on Congress to repeal the act, and proposed several constitutional amendments. Connecticut passed a resolution declaring that the act was unconstitutional and declaring that state officials would not "assist, or concur in giving effect to the aforesaid unconstitutional act." Connecticut joined in the call for constitutional amendments. Neither Massachusetts nor Connecticut attempted to ban enforcement of the act within the state. A federal district court ruled in 1808 that the Embargo Act was constitutional. Congress repealed the Embargo Act in 1809 because it had been ineffective in achieving its goal of bringing economic pressure on England and France. Nullification did not come to a legal test.
The War of 1812 was harmful to New England's commercial interests and was unpopular in New England. The New England states objected to putting their state militias under federal control, arguing that the Constitution did not give the federal government authority over state militias in those circumstances. There was some discussion in New England about making a separate peace with Britain or even seceding from the Union. At the Hartford Convention of 1814, delegates from several New England states met to discuss their disagreements with the federal government's policies. The final report and resolutions from the Hartford Convention asserted that "acts of Congress in violation of the Constitution are absolutely void" and asserted the right of a state "to interpose its authority" to protect against unconstitutional government action. The final resolutions did not attempt to ban enforcement of any act of Congress. Rather, the resolutions recommended to state legislatures that they protect their citizens from unconstitutional federal control of the militia, called on the federal government to fund the defense of New England, and proposed a series of amendments to the Constitution. The end of the war made the issue moot.
Virginia's opposition to Supreme Court review
In 1813, the Supreme Court reversed a decision of the Virginia Court of Appeals, basing its decision on the terms of a federal treaty. The Virginia Court of Appeals refused to accept the Supreme Court's decision, stating that under the Constitution, the Supreme Court did not have appellate authority over state courts, even in cases involving federal law. The Virginia court held that as a matter of state sovereignty, its decisions were final and could not be appealed to the U.S. Supreme Court. The Virginia court found unconstitutional the federal statute providing for Supreme Court review of state court judgments. This decision would have allowed each state's courts to decide for itself whether federal actions were unconstitutional, effectively giving state courts the right to nullify federal law. In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Supreme Court overruled the Virginia court. The Supreme Court held that Article III of the Constitution gives the federal courts jurisdiction in all cases arising under the Constitution or federal law, whether the case originates in state court or federal court, and gives the Supreme Court final appellate authority in such cases. The Supreme Court stated that the people, by providing in the Constitution that the Supreme Court has appellate authority in such cases, had chosen to limit the sovereignty of the states with respect to cases involving the Constitution or federal law. The Supreme Court thereby found that the federal courts, not the states, have the final power to interpret the Constitution.
Virginia again challenged the Supreme Court's authority in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821). The question was whether the Supreme Court had authority to hear an appeal in a criminal case brought by the state itself in a state court based on violation of a state law, where the defense was based on federal law. The Virginia legislature passed resolutions declaring that the Supreme Court had no authority to hear the appeal due to principles of state sovereignty. The Supreme Court held that under Article III of the Constitution, the federal courts have jurisdiction over all cases involving the Constitution or federal law, including criminal prosecutions by the states in which a federal defense arises. Because the defendants in the case claimed that their actions were authorized by a federal statute, there was a disputed issue of federal law and the Supreme Court had authority to review the state court's judgment. Thus, the Supreme Court again found that the final power to interpret federal law lies in the federal courts, not the states.
Ohio and the Bank of the United States
Congress chartered the Second Bank of the United States in 1816. Some states effectively attempted to nullify the Bank by imposing taxes on the Bank in an effort to prevent its operation, and also argued that the Bank was unconstitutional because Congress did not have the power to charter a bank. In the case of McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), the Supreme Court found that Congress had the power to charter the Bank, and that Maryland's tax on the Bank was unconstitutional. Despite the Supreme Court's decision, Ohio continued to enforce its tax against the Bank and seized $100,000 from the Bank to satisfy the tax. Ohio's legislature passed resolutions declaring that it did not accept the result of the McCulloch case and denying that the Supreme Court had the final word in interpreting the Constitution. The Ohio legislature's resolutions, relying on the Kentucky and Virginia Resolutions and the Report of 1800, asserted that the states "have an equal right to interpret that Constitution for themselves." The resolutions declared that Ohio had the legal power to tax the Bank.
The Bank sued Ohio officials for the return of the tax. The controversy eventually reached the Supreme Court in Osborn v. Bank of the United States, 22 U.S. (9 Wheat.) 738 (1824). The Supreme Court affirmed the decision in McCulloch v. Maryland and held that Ohio's tax on the Bank was unconstitutional. The Supreme Court stated: "[T]he act of the State of Ohio, which is certainly much more objectionable than that of the State of Maryland, is repugnant to a law of the United States, made in pursuance of the Constitution, and therefore void." The Court ordered restitution of the full amount of the tax, which the Bank then recovered. The Supreme Court thus rejected Ohio's attempt to nullify federal law.
Georgia and the Cherokees
In the 1820s, Georgia challenged federal control of Indian affairs. Georgia passed an act making Georgia state law applicable on all Cherokee lands and declaring all laws of the Cherokee nation void. This contradicted federal treaties with the Cherokees, effectively nullifying those federal treaties. Georgia's goal was to force the relocation of the Cherokees to the west. Georgia's actions were reviewed by the U.S. Supreme Court in the case of two missionaries who were convicted of violating a Georgia law regulating their presence on Cherokee land, Worcester v. Georgia, 31 U.S. (6 Pet.) 515 (1832). While the case was pending in the Supreme Court, the Georgia legislature passed a resolution asserting that under the Tenth Amendment, the federal government had no jurisdiction over Georgia criminal law and the Supreme Court's review of the case was unconstitutional.
The Supreme Court rejected Georgia's attempt to nullify the federal treaties with the Cherokees. The Court held that "according to the settled principles of our Constitution," authority over Indian affairs is "committed exclusively to the government of the Union." The Court held that under the federal treaties with the Cherokees, "the laws of Georgia can have no force" on Cherokee land. The Court held that Georgia's laws regulating Cherokee land were "void, as being repugnant to the constitution, treaties, and laws of the United States."
Georgia refused to accept the Supreme Court's decision and did not release the imprisoned missionaries. President Andrew Jackson, who was sympathetic to Georgia's goal of forcing the Cherokees to relocate, took no immediate action against Georgia. Before the Supreme Court could hear a request for an order enforcing its judgment, the Nullification Crisis arose in South Carolina. Jackson wanted to avoid a confrontation between the Supreme Court and Georgia over states' rights because it might generate support for the nullification advocates in South Carolina. A compromise was brokered under which the Governor of Georgia pardoned the missionaries, the missionaries dropped their lawsuit, and Georgia repealed the law under which they were convicted. Despite the Court's decision finding Georgia's actions unconstitutional, Georgia continued to enforce other laws regulating the Cherokees. Ultimately the Cherokees were forced to agree to a treaty of relocation, leading to the Trail of Tears.
The Nullification Crisis
The idea of nullification increasingly became associated with matters pertaining to the sectional conflict and slavery. The best known statement of the theory of nullification during this period, authored by John C. Calhoun, was the South Carolina Exposition and Protest of 1828. Calhoun asserted that the Tariff of 1828, which favored the northern manufacturing states and harmed the southern agricultural states, was unconstitutional. Calhoun argued that each state, as "an essential attribute of sovereignty," has the right to judge the extent of its own powers and the allocation of power between the state and the federal government. Calhoun argued that each state therefore necessarily has a "veto," or a "right of interposition," with respect to acts of the federal government that the state believes encroach on its rights.
In the Webster-Hayne debate in the Senate in 1830, Daniel Webster responded to this nullification theory by arguing that the Constitution itself provides for the resolution of disputes between the federal government and the states regarding allocation of powers. Webster argued that the Supremacy Clause provides that the Constitution and federal laws enacted pursuant thereto are superior to state law, and that the Article III gives to the federal judiciary the power to resolve all issues relating to interpretation of the Constitution. Under the Constitution, the federal courts therefore have the last word, said Webster. Webster said that the Constitution does not give the states a power of constitutional interpretation, and that any such power would result as many conflicting interpretations of the Constitution as there are states.
In 1832, South Carolina undertook to nullify the Tariff of 1828 and the Tariff of 1832, as well as a subsequent federal act authorizing the use of force to enforce the tariffs. South Carolina prohibited enforcement of these acts within the state, asserting that these acts "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." President Andrew Jackson denied that South Carolina had the power to nullify federal statutes, and prepared to enforce federal law forcibly if necessary. In his Proclamation to the People of South Carolina, Jackson said: "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." No other state supported South Carolina. James Madison, author of the Virginia Resolution, also weighed in at this time, stating that the Virginia Resolution should not be interpreted to mean that each state has the right to nullify federal law. The issue was made moot by a enactment of a compromise tariff bill. While the Nullification Crisis arose over a tariff law, it was recognized that the issues at stake had application to the slavery question as well.
Nullification attempts and the Fugitive Slave Laws
Northern states in the mid-19th century attempted to block enforcement of the pro-slavery federal Fugitive Slave Acts of 1793 and 1850. The most famous examples of this centered around northern states' personal liberty laws. These personal liberty laws had the practical effect, in many local situations, of undermining the effectiveness of the federal fugitive slave statutes and preventing slave owners from recovering runaways. For example, a Pennsylvania law enacted in 1826 made it a crime for any person to forcibly remove a black person from the state with the intention of keeping or selling him as a slave.
The U.S. Supreme Court upheld the validity of the federal Fugitive Slave Act of 1793 in the case of Prigg v. Pennsylvania, 41 U.S. 539 (1842). The Court rejected Pennsylvania's argument that Congress had no constitutional authority to enact the Fugitive Slave Act, finding that the Act was authorized by the Constitution's fugitive slave clause (Article IV, Section 2). The Court found that Pennsylvania's personal liberty law was unconstitutional because it conflicted with the Constitution's fugitive slave clause. The Court thus rejected Pennsylvania's attempt to nullify the Fugitive Slave Act. However, the Supreme Court implied that states might be able to pass laws denying the assistance of state officials in enforcement of the Fugitive Slave Act, leaving enforcement to federal officials.
The Supreme Court again dealt with a northern challenge to the federal fugitive slave statutes in the case of Ableman v. Booth, 62 U.S. 506 (1859). The courts of Wisconsin held the Fugitive Slave Act of 1850 unconstitutional and ordered the release of a prisoner who was prosecuted in federal district court for violation of the Act. The Wisconsin court took the position that the Supreme Court had no authority to review its decision. The Wisconsin legislature passed a resolution declaring that the Supreme Court had no jurisdiction to hear the appeal. In language borrowed from the Kentucky Resolution of 1798, the Wisconsin resolution asserted that the Supreme Court's review of the case was void.
The Supreme Court held that Wisconsin did not have the power to nullify federal law or to prevent federal officials from enforcing the Fugitive Slave Act. The Court held that in adopting the Supremacy Clause, the people had made federal law superior to state law and had provided that in the event of a conflict, federal law would control. Further, the Court found that the people had delegated the judicial power, including final appellate authority, to the federal courts with respect to cases arising under the Constitution and laws of the United States. Therefore, the people gave the federal courts final authority to determine the constitutionality of federal statutes and to determine the boundary between federal power and reserved state power. Accordingly, the Court held that the Wisconsin court did not have the power to nullify a federal statute that had been upheld by the federal courts or to interfere with federal enforcement of that statute.
Nullification Attempts and School Desegregation
Nullification and interposition resurfaced in the 1950s as southern states attempted to preserve racial segregation in their schools. In Brown v. Board of Education, 347 U.S. 483 (1954), the Supreme Court decided that segregated schools were unconstitutional. At least ten southern states passed nullification or interposition measures attempting to preserve segregated schools and refusing to follow the Brown decision. The advocates of these nullification and interposition measures argued that the Brown decision was an unconstitutional infringement on states' rights, and that the states had the power to prevent that decision from being enforced within their borders.
The Supreme Court explicitly rejected nullification in the case of Cooper v. Aaron, 358 U.S. 1 (1958). The state of Arkansas passed several laws in an effort to prevent the integration of its schools. The Supreme Court, in its only opinion to be signed by all nine justices, held that state governments had no power to nullify the Brown decision. The Supreme Court held that the Brown decision and its implementation "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.'" Thus, Cooper v. Aaron directly held that state attempts to nullify federal law are ineffective.
The Supreme Court rejected interposition in a similar context. The Supreme Court affirmed the decision of a federal district court that rejected Louisiana's attempt to use interposition laws to protect its segregated schools. The district court reviewed the theory and history of interposition, finding that interposition by the states is inconsistent with the Constitution, which allocates the power to decide constitutional issues to the Supreme Court. The court held: "The conclusion is clear 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.' . . . However solemn or spirited, interposition resolutions have no legal efficacy." Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).
Nullification vs. Interposition
In theory, nullification differs from interposition in several respects. Nullification is an act by a state finding a federal law unconstitutional, and declaring it void and unenforceable in that state. A nullification act often makes it illegal to enforce the federal law in question. Nullification may be undertaken by a single state.
Interposition also involves a declaration that a federal law is unconstitutional. There are various actions that a state might take to "interpose" once it has determined that a federal law is unconstitutional. In the Virginia Resolutions of 1798, Madison did not describe the form or effect of interposition. But in the Report of 1800, Madison described a variety of actions that states might take: communicating with other states about the unconstitutional law, attempting to enlist the support of other states, petitioning Congress to repeal the law, introducing Constitutional amendments in Congress, calling a constitutional convention. Madison did not advocate legally nullifying a federal law and declaring it unenforceable. Madison contemplated that interposition would be a joint action by a number of states, not an action by a single state. Interposition is generally considered to be less extreme than nullification.
In practice, nullification and interposition often have been used indistinguishably. John C. Calhoun indicated that these terms were interchangeable, stating: "This right of interposition, thus solemnly asserted by the State of Virginia, be it called what it may — State-right, veto, nullification, or by any other name — I conceive to be the fundamental principle of our system." During the fight over desegregation of the schools in the south in the 1950s, a number of southern states passed so-called "Acts of Interposition" that actually had the effect of nullification.
As noted above, the courts have rejected both nullification and interposition.
Nullification vs. Constitutional Challenge
Nullification should be distinguished from the situation in which a state brings a lawsuit to challenge the constitutionality of a federal law. A state sometimes may challenge the constitutionality of a federal statute by filing a lawsuit in federal court seeking to declare the federal law unconstitutional. Such a lawsuit is decided by the federal courts, with the Supreme Court having final jurisdiction. This is the accepted method of challenging the constitutionality of a federal statute. This is not nullification, even if the federal courts uphold the state's position and declare the federal statute unconstitutional. The theory of nullification is that the states have the unilateral power to determine the constitutionality of federal laws, and that a state's determination of unconstitutionality cannot be reviewed or reversed by the federal government. Therefore, nullification involves a declaration by a state legislature (or a state court) that a federal statute is unconstitutional and cannot be enforced within the state. Under the theory of nullification, such a declaration by a state is final and binding, and cannot be overruled by the federal courts. On the other hand, when a state files a lawsuit in federal court challenging the constitutionality of a federal statute, the ultimate decision on constitutionality is made by the federal courts, not by the state legislature or state courts. Because such a lawsuit recognizes the authority of the federal courts to make the ultimate decision on constitutionality, it is not an instance of nullification.
- ^ Thomas Jefferson wrote in the Kentucky Resolutions of 1798: "[B]y compact, . . . [the states] constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government. . . . [E]ach party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress."
- ^ The South Carolina Exposition and Protest of 1828, written by John C. Calhoun, stated: "[T]he power of the States to interpose in order to protect their rights . . . like all other reserved rights . . . is to be inferred from the simple fact that it is not delegated."
- ^ In Martin v. Hunter's Lessee, 14 U.S. (1 Wheat.) 304 (1816), the Court said: "The Constitution of the United States was ordained and established not by the States in their sovereign capacities, but emphatically, as the preamble of the Constitution declares, by 'the people of the United States.' . . . The [Articles of] Confederation was a compact between States, and its structure and powers were wholly unlike those of the National Government. The Constitution was an act of the people of the United States." See also McCulloch v. Maryland, 17 U.S. (4 Wheat.) 316 (1819), and Texas v. White, 74 U.S. (7 Wall.) 700 (1869).
- ^ The Supremacy Clause provides: "This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."
- ^ Article III provides that "The judicial power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties," and that "the Supreme Court shall have appellate jurisdiction" in such cases.
- ^ See Marbury v. Madison, 5 US (1 Cranch) 137 (1803).
- ^ See Ableman v. Booth, 62 U.S. 506 (1859), Cooper v. Aaron, 358 U.S. 1 (1958).
- ^ According to a leading historian of the Constitutional Convention, nullification and the related concept of secession "were probably not even seriously considered at that time; there certainly is no record of their being mentioned in the convention." Farrand, Max (1913). The Framing of the Constitution. New Haven: Yale University Press. p. 206.
- ^ Farrand, Max (1911). The Records of the Federal Convention of 1787. 2. New Haven: Yale University Press. p. 78. http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=81&itemLink=r?ammem/hlaw:@field%28DOCID+@lit%28fr00224%29%29:%230020082&linkText=1.
- ^ Ibid., p. 93. See Prakash, Saikrishna, and Yoo, John, "The Origins of Judicial Review," 70 U. Chicago Law Review 887, 941-43, 952 (2003), which describes a number of statements in the Convention recognizing that the federal courts would have the power to declare laws unconstitutional. See also Judicial review in the United States.
- ^ Farrand, Max (1911). The Records of the Federal Convention of 1787. 2. New Haven: Yale University Press. pp. 248, 428. http://memory.loc.gov/cgi-bin/ampage?collId=llfr&fileName=002/llfr002.db&recNum=253&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28fr002104%29%29%230020386&linkText=1.
- ^ George Nicholas said Virginia would be "exonerated" if there were an attempt to impose a "supplementary condition." Elliott, Jonathan (1836). Debates in the Several State Conventions on the Adoption of the Federal Constitution. 3. Washington. pp. 576, 625–26. http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=003/lled003.db&recNum=587&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28ed00323%29%29%230030638&linkText=1.
- ^ See Gutzman, Kevin, "Edmund Randolph and Virginia Constitutionalism," 66 Review of Politics 469 (2004). Virginia's final ratification resolution stated: "[T]hat the powers granted under the Constitution, being derived from the people of the United States, be resumed by them whensoever the same shall be perverted to their injury or oppression, and that every power, not granted thereby, remains with them, and at their will." Elliott, Jonathan (1836). Debates in the Several State Conventions on the Adoption of the Federal Constitution. 3. Washington. p. 656. http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=003/lled003.db&recNum=667&itemLink=r%3Fammem%2Fhlaw%3A%40field%28DOCID%2B%40lit%28ed00323%29%29%230030638&linkText=1.
- ^ Prakash and Yoo, "The Origins of Judicial Review," 70 U. of Chicago Law Review at p. 965. See also Judicial review in the United States.
- ^ Elliot, Jonathan (1836). Debates in the Several State Conventions on the Adoption of the Federal Constitution. 1. Washington. p. 380. http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=001/lled001.db&recNum=395&itemLink=r?ammem/hlaw:@field%28DOCID+@lit%28ed001181%29%29%230010396&linkText=1.
- ^ Elliot, Jonathan (1836). Debates in the Several State Conventions on the Adoption of the Federal Constitution. 3. Washington. pp. 553–554. http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=003/lled003.db&recNum=564&itemLink=D%3Fhlaw%3A8%3A.%2Ftemp%2F~ammem_3Tdh%3A%3A%230030589&linkText=1. A number of other delegates spoke about the power of the federal courts to declare laws unconstitutional. For example, Oliver Ellsworth stated in the Connecticut convention: "This Constitution defines the extent of the powers of the general government. If the general legislature should at any time overleap their limits, the judicial department is a constitutional check. If the United States go beyond their powers, if they make a law which the Constitution does not authorize, it is void; and the judicial power, the national judges, who, to secure their impartiality, are to be made independent, will declare it to be void." Elliot, Jonathan (1836). Debates in the Several State Conventions on the Adoption of the Federal Constitution. 2. Washington. p. 196. http://memory.loc.gov/cgi-bin/ampage?collId=lled&fileName=002/lled002.db&recNum=207&itemLink=r?ammem/hlaw:@field%28DOCID+@lit%28ed0025%29%29%230020208&linkText=1.
- ^ "The evidence from the Constitutional Convention and from the state ratification conventions is overwhelming that the original public meaning of the term 'judicial power' [in Article III of the Constitution] included the power to nullify unconstitutional laws." Barnett, Randy, "The Original Meaning of Judicial Power," 12 Supreme Court Economic Review 115, 138 (2004).
- ^ "But it will not follow from [the Supremacy Clause] that acts of the [federal government] which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the [states], will become the supreme law of the land. These will be merely acts of usurpation." Federalist No. 33
- ^ Federalist No. 39
- ^ "The success of the usurpation [by Congress] will depend on the executive and judiciary departments, which are to expound and give effect to the legislative acts, and in the last resort a remedy must be obtained from the people who can, by the election of more faithful representatives, annul the acts of the usurpers. . . . [T]he state legislatures . . . will be ever ready to mark the innovation, to sound the alarm to the people, and to exert their local influence in effecting a change of federal representatives." Federalist No. 44
- ^ "The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute." Federalist No. 78
- ^ "The mere necessity of uniformity in the interpretation of the national laws, decides the question. Thirteen independent courts of final jurisdiction over the same causes, arising upon the same laws, is a hydra in government, from which nothing but contradiction and confusion can proceed." Federalist No. 80. Likewise, Federalist No. 22 says that the federal courts should interpret federal law due to the need for uniformity.
- ^ Federalist No. 82
- ^ "That the several states composing the United States of America . . . by compact, under the style and title of a Constitution for the United States . . . constituted a general government for special purposes, delegated to that government certain definite powers, reserving, each state to itself, the residuary mass of right to their own self-government; and that whensoever the general government assumes undelegated powers, its acts are unauthoritative, void, and of no force; . . . that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress." Kentucky Resolutions of 1798.
- ^ "[T]he several states who formed [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and, . . . a nullification, by those sovereignties, of all unauthorized acts done under color of that instrument, is the rightful remedy." Kentucky Resolutions of 1799.
- ^ Virginia Resolutions of 1798.
- ^ The seven states that transmitted rejections were Delaware, Massachusetts, New York, Connecticut, Rhode Island, New Hampshire, and Vermont. See Elliot, Jonathan (1907) . Debates in the Several State Conventions on the Adoption of the Federal Constitution. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539.
- ^ Maryland, Pennsylvania, and New Jersey passed resolutions that disapproved the Kentucky and Virginia resolutions, but did not transmit formal responses to Kentucky and Virginia. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244. The remaining four states (North Carolina, South Carolina, Georgia, and Tennessee) did not respond to the Kentucky and Virginia Resolutions.
- ^ Elliot, Jonathan (1907) . "Answers of the Several State Legislatures: State of Vermont". Debates in the Several State Conventions on the Adoption of the Federal Constitution. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 538–539. Aside from Vermont, the other states taking the position that the constitutionality of federal laws is a question for the federal courts, not the states, were New York, Massachusetts, Rhode Island, New Hampshire, and Pennsylvania. The Governor of Delaware and a committee of the Maryland legislature also took this position. Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
- ^ "The declarations, in such cases, are expressions of opinion, unaccompanied with any other effect than what they may produce on opinion, by exciting reflection. The expositions of the judiciary, on the other hand, are carried into immediate effect by force." Report of 1800
- ^ Madison, James "Letter to Mathew Carey", Library of Congress, July 27, 1831.
- ^ Madison, James "Letter to Nicholas P. Trist", Library of Congress, December, 1831.
- ^ Madison, James "Letter to Nicholas P. Trist", Library of Congress, December 23, 1832.
- ^ Madison, James "Notes, On Nullification", Library of Congress, December, 1834.
- ^ The Alien and Sedition Acts expired by their terms in 1800 and 1801. They were not renewed.
- ^ United States v. Peters, 9 U.S. (5 Cranch) 115 (1809). The Peters case sometimes is called the Olmstead case, after one of the parties.
- ^ Pennsylvania's resolution said that "as guardians of the State rights, [the state legislature] can not permit an infringement of those rights by an unconstitutional exercise of power in the United States’ courts." The resolution denied the power of "the United States’ courts to decide on state rights." The resolution proposed creating a new tribunal to decide disputes between the federal government and the states regarding the limits of federal authority. Resolution of the Pennsylvania Legislature, April 3, 1809.
- ^ The Virginia General Assembly passed a resolution rejecting Pennsylvania's position and asserting that the Supreme Court is the tribunal provided by the Constitution to decide disputes between the state and federal judiciary. Acts of General Assembly of Virginia, 1809-10, p. 102.
- ^ A Pennsylvania court later acknowledged the jurisdiction of the federal courts in this matter. Chief Justice Tilghman wrote: "[T]he State of Pennsylvania, having ratified the present constitution, did thereby virtually invest the courts of the United States with power to decide this controversy." Olmsted's Case, 1 Brightley 9 (Pa. Nisi Prius 1809).
- ^ These events are described in an article by Justice William O. Douglas, Interposition and the Peters Case, 1778-1809, 9 Stanford L. Rev. 3 (1956), and in Treacy, Kenneth, The Olmstead Case, 1778-1809, 10 Western Political Quarterly 675 (1957).
- ^ U.S. v. The William, 28 Fed. Cas. 614 (D. Mass. 1808).
- ^ Report and Resolutions of the Hartford Convention, January 4, 1815.
- ^ Fairfax's Devisee v. Hunter's Lessee, 11 U.S. (7 Cranch) 603 (1813).
- ^ The Virginia General Assembly resolved "That the Supreme Court of the United States have no rightful authority under the Constitution to examine and correct the judgment" in the Cohens case. Acts of Virginia 1820-21, 142, 143. See Smith, Jean Edward (1996). John Marshall: Definer of a Nation. New York: Henry Holt & Co. p. 458.
- ^ The Ohio resolutions were transmitted to Congress and reported in Annals of Congress, 16th Congress, 2d session, pp. 1694, 1714
- ^ "Resolved . . . that any attempt to reverse the decision of the superior court of Gwinnett county, in the case of Samuel A. Worcester and Elizur Butler, by the supreme court of the United States, will be held by this state, as an unconstitutional and arbitrary interference in the administration of her criminal laws, and will be treated as such." Acts of Georgia, 1831, 259-261; Niles' Weekly Register, XLI, 335, 336.
- ^ Worcester v. Georgia, 31 U.S. (6 Pet.) 515, 561-62 (1832).
- ^ Howe, Daniel (2007). What Hath God Wrought: The Transformation of America, 1815-1848. New York: Oxford University Press. pp. 412–13.
- ^ Calhoun wrote: "If it be conceded . . . that the sovereign powers delegated are divided between the General and State Governments, . . . 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 . . . . [T]he existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . To the States respectively each in its sovereign capacity is reserved the power, by its veto, or right of interposition, to arrest the encroachment." South Carolina Exposition and Protest, 1828.
- ^ Webster said: "[T]he people have wisely provided, in the Constitution itself, a proper, suitable mode and tribunal for settling questions of constitutional law . . . by declaring, Sir, that "the Constitution, and the laws of the United States made in pursuance thereof, shall be the supreme law of the land, any thing in the constitution or laws of any State to the contrary notwithstanding." . . . No State law is to be valid which comes in conflict with the Constitution, or any law of the United States passed in pursuance of it. But who shall decide this question of interference? To whom lies the last appeal? This, Sir, the Constitution itself decides also, by declaring, "that the judicial power shall extend to all cases arising under the Constitution and laws of the United States." These two provisions cover the whole ground. They are, in truth, the keystone of the arch! With these it is a government; without them it is a confederation. . . . [H]ow is it that a State legislature acquires any power to interfere? . . . [C]ould any thing have been more preposterous, than to make a government for the whole Union, and yet leave its powers subject, not to one interpretation, but to thirteen or twenty-four interpretations?" Webster's Second Reply to Hayne, January 26, 1830
- ^ South Carolina Ordinance of Nullification, 1832
- ^ President Jackson's Proclamation Regarding Nullification, December 10, 1832.
- ^ Madison, James "Notes, On Nullification", Library of Congress, December, 1834.
- ^ Calhoun wrote in a letter in 1830: "I consider the tariff act as the occasion, rather than the real cause of the present unhappy state of things. The truth can no longer be disguised, that the peculiar domestick institution of the Southern States [i.e. slavery] and the consequent direction which that and her soil and climate have given to her industry, has placed them in regard to taxation and appropriations in opposite relation to the majority of the Union, against the danger of which, if there be no protective power in the reserved rights of the states they must in the end be forced to rebel, or, submit it to have their paramount interests sacrificed, their domestick institutions subordinated by Colonization and other schemes, and themselves and children reduced to wretchedness. Thus situated, the denial of the right to the State to interpose constitutionally in the last resort, more alarms the thinking, than all the other causes." Letter, John C. Calhoun to Virgil Maxcy, Sept. 11, 1830.
- ^ "The act of Pennsylvania upon which this indictment is founded is unconstitutional and void. It purports to punish as a public offense against that State the very act of seizing and removing a slave by his master which the Constitution of the United States was designed to justify and uphold." Prigg, 41 U.S. at 625-26.
- ^ The Supreme Court said that "the States cannot, therefore, be compelled to enforce" the Fugitive Slave Act. Prigg, 41. U.S. at 615.
- ^ "That we regard the action of the Supreme Court of the United States, in assuming jurisdiction in the case before mentioned, as an arbitrary act of power, unauthorized by the Constitution. That this assumption of jurisdiction by the federal judiciary . . . is an act of undelegated power, and therefore without authority, void, and of no force." General Laws of Wisconsin, 1859, 247-48.
- ^ "[N]o 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." Ableman, 62 U.S. at 525.
- ^ The Court held that the Constitution grants "final appellate power" to the Supreme Court to decide "controversies as to the respective powers of the United States and the States." Ableman, 62 U.S. at 520.
- ^ Cooper, 358 U.S. at 17.
- ^ The court rejected the argument that state legislatures are free to follow their own interpretation of the Constitution in defiance of a Supreme Court decision: "[T]he Constitution itself established the Supreme Court of the United States as the final tribunal for constitutional adjudication." Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).
- ^ Jefferson's original draft of the Kentucky Resolutions of 1798 indicated that nullification may be undertaken by a single state. "[E]very State has a natural right in cases not within the compact, (casus non fœderis) to nullify of their own authority all assumptions of power by others within their limits." Draft version of the Kentucky Resolutions of 1798, 8th resolution. However, this passage was dropped from the resolutions before they were adopted, perhaps in part because Kentucky did not want to take unilateral action. A year later, the Kentucky Resolutions of 1799 indicated that nullification may be undertaken by "the several states," apparently contemplating joint action. Later advocates of nullification, such as Calhoun, contemplated nullification by a single state. South Carolina acted alone in enacting its Ordinance of Nullification in 1832.
- ^ Calhoun, John C., The Fort Hill Address, July 26, 1831.
- ^ See, for example, the Louisiana act of interposition, set out in the appendix to Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960), aff'd 364 U.S. 500 (1960).
- Ableman v. Booth, 62 U.S. 506 (1859)
- Anderson, Frank Maloy (1899). "Contemporary Opinion of the Virginia and Kentucky Resolutions". American Historical Review. pp. 45–63, 225–244.
- Bush v. Orleans Parish School Board, 188 F. Supp. 916 (E.D. La. 1960)
- Cooper v. Aaron, 358 U.S. 1 (1958)
- Elliot, Jonathan (1907) . Debates in the Several State Conventions on the Adoption of the Federal Constitution. 4 (expanded 2nd ed.). Philadelphia: Lippincott. pp. 532–539.
- Kentucky Resolutions of 1798
- Kentucky Resolutions of 1799
- Madison, James "Notes, On Nullification", Library of Congress, December, 1834
- Virginia Report of 1800
- Virginia Resolutions of 1798
- Wood, Walter (2008). Nullification: A Constitutional History, 1776-1833. Washington, DC: University Press of America. ISBN 9780761840114.
- Woods, Thomas E. (2010). Nullification: How to Resist Federal Tyranny in the 21st Century. Washington, DC: Regnery. ISBN 1596981490.
- 2010 State-by-State Nullification Efforts
- South Carolina Ordinance of Nullification, November 24, 1832
- Nullification Revisited, An article examining the constitutionality of nullification (from a favorable aspect, and with regard to both recent and historical events)
- Nullification Overview, A research paper examining nullification bluntly (from a student perspective, and keeping other events in mind.)
- Know Your States' Rights, Review of historian Thomas Woods' book on the subject in the American Conservative
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