On the Nullifying Doctrine

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Because the government of the United States under the Constitution was designed to be neither wholly national nor wholly federal, the question of how much sovereignty was retained by each of the individual states vis-à-vis the national government remained unresolved even after ratification. Indeed, some states, like Virginia and New York, explicitly included provisions outlining the right of the people either organically, or through their state governments, to resume their political authority in the event the national government proved unable to affect the purposes for which it had been established. A less dramatic version of this understanding underlay the Virginia and Kentucky Resolves of 1798/1799. Authored by James Madison and Thomas Jefferson, respectively, these documents upheld a robust vision of the states as constitutional interpreters, even (in the case of Kentucky) asserting that within its own borders, a state had the ability to nullify (or, in effect, to disregard) any federal law it believed to be unconstitutional. (Madison later disavowed nullification.)

Although the 1803 Marbury v. Madison decision helped claim for the Supreme Court the power to declare laws unconstitutional, the idea that the states had a legitimate ability to weigh in on the constitutionality of federal measures (previously manifested in the Hartford Convention) gained ground in the 1820s, particularly in the agricultural South, where people viewed national economic policies as unfairly partial toward northern manufacturing. South Carolinians took the lead in protesting the federal “tariff of abominations” in 1828.

President Andrew Jackson publicly refuted all arguments in favor of nullification, and brought a swift end to South Carolina’s rhetorical rebellion by threatening to use military force against the state if it did not comply with federal law. Many Northerners believed that nullification was not only a philosophical absurdity, but also directly linked to the perpetuation of the institution of slavery. They applauded Jackson’s actions as a defense of not only the Union, but also of freedom itself. The theory of state sovereignty at the heart of nullification continued to appeal to many Americans and contributed to the deepening divide between northerners and southerners during the antebellum period, leading at least one pessimistic wag to pen an “Epitaph for the Constitution” in which he (or she) imagined the issue leading to the collapse of the Union.

“[Copy of James Madison] to Robert Y. Hayne [as enclosed in James Madison to Edward Everett, April 17, 1830], 3 April 1830,” Founders Online, National Archives, last modified November 26, 2017, https://goo.gl/g9tLLB.

But there are doctrines espoused from which I am constrained to dissent. I allude particularly to the doctrine . . . that the States (perhaps their Governments) have, singly, a constitutional right to resist, and by force annul within itself, acts of the Government of the United States, which [they] deem unauthorized by the Constitution of the United States; although such acts be not within the extreme cases of oppression, which justly absolve the State from the Constitutional compact to which it is a party.

. . . [I]t is believed that by keeping in view distinctions, (an inattention to which is often observable in the ablest discussions of the subjects embraced in those proceedings) between the Governments of the States, and the States in the sense in which they were parties to the Constitution; between the several modes and objects of interposition against the abuses of power; and more especially between interpositions within the purview of the Constitution; and interpositions appealing from the Constitution to the rights of nature, paramount to all Constitutions; with these distinctions kept in view, and an attention always of explanatory use, to the views and arguments which are combatted, a confidence is felt that the Resolutions of Virginia as vindicated in the Report on them, are entitled to an exposition shewing a consistency in their parts, and an inconsistency of the whole with the doctrine under consideration.

On recurring to the printed Debates in the House of Delegates on the occasion, which were ably conducted, and are understood to have been, for the most part at least, revised by the Speakers; the tenor of them does not disclose any reference to a Constitutional right in an individual State, to arrest by force, the operation of a law of the United States. . . .

In this review I have not noticed the idea entertained by some, that disputes between the Government of the United States and those of the Individual States may and must be, adjusted by negotiation, as between independent powers.

Such a mode as the only one of deciding such disputes, would seem to be as expressly at variance with the language and provisions of the Constitution, as in a practical view, it is pregnant with consequences subversive of the Constitution. It may have originated in a supposed analogy to the negotiating process, in cases of disputes between separate branches or departments of the same Government: but the analogy does not exist. In the case of disputes between independent parts of the same Government, neither of them being able to consummate its pretensions, nor the Government to proceed without a co-operation of the several parts, necessity brings about an adjustment. In disputes between a State Government and the Government of the United States, the case is both theoretically and practically different; each party possessing all the Departments of an organized Government, Legislative, Executive & Judiciary; and having, each, a physical force at command.

This idea of an absolute separation and independence between the Government of the United States and the State Governments, as if they belonged to different nations alien to each other, has too often tainted the reasoning applied to constitutional questions. Another idea not less unsound and sometimes presenting itself is, that a cession of any part of the rights of sovereignty, is inconsistent with the nature of sovereignty, or at least a degradation of it. This would certainly be the case, if the cession was not both mutual and equal: but where there is both mutuality and equality, there is no real sacrifice on either side, each gaining as much as it grants; and the only point to be considered is the expediency of the compact, and that, to be sure, is a point that ought to be well considered. On this principle it is that treaties are admissible between independent powers, wholly alien to each other, altho’ privileges may be granted by each of the parties at the expense of its internal jurisdiction. On the same principle it is, that individuals entering into the social State, surrender a portion of their equal rights as men. If a part only made the surrender, it would be a degradation; but the surrenders being mutual, and each gaining as much authority over others as is granted to others over him, the inference is mathematical, that in theory nothing is lost by any; however different the result may be in practice.

I am now brought to the proposal which claims for the States respectively, a right to appeal against an exercise of power by the Government of the United States, which by the State is decided to be unconstitutional, to a final decision by three fourths of the parties to the Constitution. With every disposition to take the most favorable view of the expedient that a high respect for its Patrons could prompt, I am compelled to say that it appears to be either not necessary, or utterly inadmissible.

I take for granted it is not meant that pending the appeal, the offensive law of the United States is to be suspended within the State. Such an effect would necessarily, arrest its operation everywhere; a uniformity in the operation of the laws of the United States being indispensable, not only in a Constitutional and equitable, but, in most cases, in a practicable point of view; and a final decision adverse to that of the appellant State, would afford grounds and kinds of complaints that need not be traced.

But aside from those considerations, it is to be observed that the effect of the appeal will depend wholly on the form in which the case is proposed to the Tribunal which is to decide it.

If three fourths of the States can sustain the State in its decision, it would seem, that this extra constitutional course of proceeding might well be spared; inasmuch as two thirds can institute, and three fourths can effectuate, an amendment of the Constitution, which would establish a permanent rule of the highest authority, instead of a precedent of construction only.

If, on the other hand, three fourths are required to reverse the decision of the State, it will then be in the power of the smallest fraction over one fourth; of seven states for example out of twenty-four; to give the law to seventeen States, each of the seventeen having, as parties to the Constitutional compact, an equal right with each of the seven, to expound and insist on its exposition. That the seven might in particular cases be right and the seventeen wrong, is quite possible. But to establish a positive and permanent rule, giving such power, to such a minority, over such a majority, would overturn the first principle of a free Government, and in practice could not fail to overturn the Government itself.

It must be recollected that the Constitution was proposed to the people of the States, as a whole, and unanimously adopted as a whole; it being a part of the Constitution, that not less than three fourths should be competent to make any alteration in what had been unanimously agreed to. So great is the caution on this point, that in two cases, where peculiar interests were at stake, a majority even of three fourths are distrusted, and a unanimity required to make any change affecting those cases.

When the Constitution was adopted as a whole, it is certain there are many of its parts, which if proposed by themselves would have been promptly rejected. It is far from impossible, that every part of a whole would be rejected by a majority, and yet the whole be unanimously accepted. Constitutions will rarely, probably never, be formed without mutual concessions; without articles conditioned on and balancing each other. Is there a Constitution of a single State out of the twenty-four, that would bear the experiment of having its component parts, submitted to the people separately, and decided on according to their insulated merits?

What the fate of the Constitution of the United States would be, if a few States could expunge parts of it most valued by the great majority, and without which the great majority would never have agreed to it – can have but one answer.

The difficulty is not removed by limiting the process to cases of construction. How many cases of that sort, involving vital texts of the Constitution, have occurred? How many now exist? How many may hereafter spring up! How many might be plausibly created, if entitled to the privilege of a decision in the mode proposed.

Is it certain that the principle of that mode may not reach much farther than is contemplated? If a single State can of right require three fourths of its co-States, to overrule its exposition of the Constitution, because that proportion is authorized to amend it; is the plea less plausible, that as the Constitution was unanimously formed, it ought to be unanimously expounded.

The reply to all such suggestions must be, that the Constitution is a compact; that its text is to be expounded according to the provision for it, making part of the compact; and that none of the parties can rightfully violate the expounding provision more than any other part. When such a right accrues as may be the case, it must grow out of abuses of the Constitution, amounting to a release of the sufferers from their allegiance to it. . . .

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