Nullification (U.S. Constitution)
Encyclopedia
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.
," 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. Nullification supporters argue that 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.
. 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.
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.
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."
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.
, 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.
, 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.
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.
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
.
, 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.
. 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.
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).
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.
State
A state is an organized political community, living under a government. States may be sovereign and may enjoy a monopoly on the legal initiation of force and are not dependent on, or subject to any other power or state. Many states are federated states which participate in a federal union...
has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional
Constitutionality
Constitutionality is the condition of acting in accordance with an applicable constitution. Acts that are not in accordance with the rules laid down in the constitution are deemed to be ultra vires.-See also:*ultra vires*Company law*Constitutional law...
. 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
Compact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...
, the States and not the federal courts
United States federal courts
The United States federal courts make up the judiciary branch of federal government of the United States organized under the United States Constitution and laws of the federal government.-Categories:...
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
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
is a theory that a U.S. State
U.S. state
A U.S. state is any one of the 50 federated states of the United States of America that share sovereignty with the federal government. Because of this shared sovereignty, an American is a citizen both of the federal entity and of his or her state of domicile. Four states use the official title of...
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
Secession in the United States
Secession in the United States can refer to secession of a state from the United States, secession of part of a state from that state to form a new state, or secession of an area from a city or county....
, by which a state terminates its political affiliation with the Union. Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
and James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
set forth the theories of nullification and interposition in the Kentucky and Virginia Resolutions
Kentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...
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
American Civil War
The American Civil War was a civil war fought in the United States of America. In response to the election of Abraham Lincoln as President of the United States, 11 southern slave states declared their secession from the United States and formed the Confederate States of America ; the other 25...
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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
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
Cooper v. Aaron
Cooper v. Aaron, 358 U.S. 1 , was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court's decisions, and could not choose to ignore them.-Background of the case:...
, again holding that the states may not nullify federal law.
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 "compactCompact theory
Compact theory is a theory relating to the development of some federal constitutions.-Compact theory in the United States:Regarding the Constitution of the United States, the compact theory holds that the nation was formed through a compact agreed upon by all the states, and that the federal...
," 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. Nullification supporters argue that 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
Tenth Amendment to the United States Constitution
The Tenth Amendment to the United States Constitution, which is part of the Bill of Rights, was ratified on December 15, 1791...
.
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
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
of Article VI
Article Six of the United States Constitution
Article Six of the United States Constitution establishes the Constitution and the laws and treaties of the United States made in accordance with it as the supreme law of the land, forbids a religious test as a requirement for holding a governmental position and holds the United States under the...
, 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 ConventionPhiladelphia Convention
The Constitutional Convention took place from May 14 to September 17, 1787, in Philadelphia, Pennsylvania, to address problems in governing the United States of America, which had been operating under the Articles of Confederation following independence from...
. 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
George Mason
George Mason IV was an American Patriot, statesman and a delegate from Virginia to the U.S. Constitutional Convention...
said that under the Constitution, federal judges "could declare an unconstitutional law void." James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
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
Charles Pinckney (governor)
Charles Pinckney was an American politician who was a signer of the United States Constitution, the 37th Governor of South Carolina, a Senator and a member of the House of Representatives...
referred to federal judges as "Umpires between the U. States and the individual States," while John Rutledge
John Rutledge
John Rutledge was an American statesman and judge. He was the first Governor of South Carolina following the signing of the Declaration of Independence, the 31st overall...
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
Edmund Randolph
Edmund Jennings Randolph was an American attorney, the seventh Governor of Virginia, the second Secretary of State, and the first United States Attorney General.-Biography:...
and George Nicholas
George Nicholas
George Nicholas was the first professor of law at Transylvania University in Kentucky. He was also briefly attorney general of Kentucky, and had been several times a member of the Virginia House of Delegates. He was the son of Robert C. Nicholas, Sr.; his brothers included Wilson Cary 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
Luther Martin
Luther Martin was a politician and one of United States' Founding Fathers, who refused to sign the Constitution because he felt it violated states' rights...
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
John Marshall
John Marshall was the Chief Justice of the United States whose court opinions helped lay the basis for American constitutional law and made the Supreme Court of the United States a coequal branch of government along with the legislative and executive branches...
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 PapersFederalist Papers
The Federalist Papers are a series of 85 articles or essays promoting the ratification of the United States Constitution. Seventy-seven of the essays were published serially in The Independent Journal and The New York Packet between October 1787 and August 1788...
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
Federalist No. 33
Federalist No. 33 is an essay by Alexander Hamilton, the thirty-third of the Federalist Papers. It was published on January 2, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published. This is the fourth of seven essays by Hamilton on the then-controversial...
recognizes that federal laws are supreme only if they are within the scope of the federal government's delegated powers. Federalist No. 39
Federalist No. 39
Federalist No. 39 is an essay by James Madison. It is the thirty-ninth of the Federalist Papers, entitled "The Conformity of the Plan to Republican Principles." Like all the Federalist Papers, it was published under the pseudonym Publius. It was published on January 18, 1788.In No...
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
Federalist No. 44
Federalist No. 44 is an essay by James Madison, the forty-fourth of the Federalist Papers. It was published on January 25, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...
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
Federalist No. 78
Federalist No. 78 is an essay by Alexander Hamilton, the seventy-eighth of the Federalist Papers. Like all of the Federalist Papers, it was published under the pseudonym Publius....
says that the federal courts have the power "to pronounce legislative acts void, because contrary to the Constitution." Federalist No. 80
Federalist No. 80
Federalist No. 80 is an essay by Alexander Hamilton and the eightieth of the Federalist Papers. It was published on June 21, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...
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
Federalist No. 82
Federalist No. 82 is an essay by Alexander Hamilton and the eighty-second of the Federalist Papers. It was published on July 2, 1788 under the pseudonym Publius, the name under which all the Federalist Papers were published...
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 ResolutionsKentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...
of 1798, which were a protest against the Alien and Sedition Acts
Alien and Sedition Acts
The Alien and Sedition Acts were four bills passed in 1798 by the Federalists in the 5th United States Congress in the aftermath of the French Revolution's reign of terror and during an undeclared naval war with France, later known as the Quasi-War. They were signed into law by President John Adams...
. In these resolutions, authors Thomas Jefferson
Thomas Jefferson
Thomas Jefferson was the principal author of the United States Declaration of Independence and the Statute of Virginia for Religious Freedom , the third President of the United States and founder of the University of Virginia...
and James Madison
James Madison
James Madison, Jr. was an American statesman and political theorist. He was the fourth President of the United States and is hailed as the “Father of the Constitution” for being the primary author of the United States Constitution and at first an opponent of, and then a key author of the United...
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
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...
, written by Madison. The Report of 1800 affirmed and defended the Virginia Resolutions. The Report of 1800
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...
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
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
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."
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.
New England's protests against federal authority
Several New England states objected to the Embargo Act of 1807Embargo Act of 1807
The Embargo Act of 1807 and the subsequent Nonintercourse Acts were American laws restricting American ships from engaging in foreign trade between the years of 1807 and 1812. The Acts were diplomatic responses by presidents Thomas Jefferson and James Madison designed to protect American interests...
, 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
War of 1812
The War of 1812 was a military conflict fought between the forces of the United States of America and those of the British Empire. The Americans declared war in 1812 for several reasons, including trade restrictions because of Britain's ongoing war with France, impressment of American merchant...
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
Hartford Convention
The Hartford Convention was an event spanning from December 15, 1814–January 4, 1815 in the United States during the War of 1812 in which New England's opposition to the war reached the point where secession from the United States was discussed...
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 LesseeMartin v. Hunter's Lessee
Martin v. Hunter's Lessee, , was a landmark United States Supreme Court case decided on March 20, 1816. It was the first case to assert ultimate Supreme Court authority over state courts in matters of federal law.-Background:...
, 14 U.S. (1 Wheat.) 304 (1816), the Supreme Court overruled the Virginia court. The Supreme Court held that Article III
Article Three of the United States Constitution
Article Three of the United States Constitution establishes the judicial branch of the federal government. The judicial branch comprises the Supreme Court of the United States and lower courts as created by Congress.-Section 1: Federal courts:...
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
Cohens v. Virginia
Cohens v. Virginia, , was a United States Supreme Court decision most noted for John Marshall and the Court's assertion of its power to review state supreme court decisions in criminal law matters when the plaintiff claims that their Constitutional rights have been violated...
, 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 StatesSecond Bank of the United States
The Second Bank of the United States was chartered in 1816, five years after the First Bank of the United States lost its own charter. The Second Bank of the United States was initially headquartered in Carpenters' Hall, Philadelphia, the same as the First Bank, and had branches throughout the...
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
McCulloch v. Maryland
McCulloch v. Maryland, , was a landmark decision by the Supreme Court of the United States. The state of Maryland had attempted to impede operation of a branch of the Second Bank of the United States by imposing a tax on all notes of banks not chartered in 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
Kentucky and Virginia Resolutions
The Kentucky and Virginia Resolutions were political statements drafted in 1798 and 1799, in which the Kentucky and Virginia legislatures took the position that the federal Alien and Sedition Acts were unconstitutional...
and the Report of 1800
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...
, 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
Osborn v. Bank of the United States
Osborn v. Bank of the United States, 22 U.S. 738 , was a case set in the Banking Crisis of 1819, during which many banks, including the Second Bank of the United States, demanded repayment for loans which they had issued on credit that they did not have. This led to an economic downturn and a...
, 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 CherokeeCherokee
The Cherokee are a Native American people historically settled in the Southeastern United States . Linguistically, they are part of the Iroquoian language family...
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
Worcester v. Georgia
Worcester v. Georgia, 31 U.S. 515 , was a case in which the United States Supreme Court vacated the conviction of Samuel Worcester and held that the Georgia criminal statute that prohibited non-Indians from being present on Indian lands without a license from the state was unconstitutional.The...
, 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
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...
, 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
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
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
Treaty of New Echota
The Treaty of New Echota was a treaty signed on December 29, 1835, in New Echota, Georgia by officials of the United States government and representatives of a minority Cherokee political faction, known as the Treaty Party...
, leading to the Trail of Tears
Trail of Tears
The Trail of Tears is a name given to the forced relocation and movement of Native American nations from southeastern parts of the United States following the Indian Removal Act of 1830...
.
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. CalhounJohn C. Calhoun
John Caldwell Calhoun was a leading politician and political theorist from South Carolina during the first half of the 19th century. Calhoun eloquently spoke out on every issue of his day, but often changed positions. Calhoun began his political career as a nationalist, modernizer, and proponent...
, was the South Carolina Exposition and Protest
South Carolina Exposition and Protest
The South Carolina Exposition and Protest, also known as Calhoun's Exposition, was written in December 1828 by John C. Calhoun, then vice president under John Quincy Adams and later under Andrew Jackson. Calhoun did not formally state his authorship at the time, though it was known.The document was...
of 1828. Calhoun asserted that the Tariff of 1828
Tariff of 1828
The Tariff of 1828 was a protective tariff passed by the Congress of the United States on May 19, 1828, designed to protect industry in the northern United States...
, 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
Webster-Hayne debate
The Webster–Hayne debate was a famous debate in the U.S. between Senator Daniel Webster of Massachusetts and Senator Robert Y. Hayne of South Carolina that took place on January 19-27, 1830 regarding protectionist tariffs...
in the Senate in 1830, Daniel Webster
Daniel Webster
Daniel Webster was a leading American statesman and senator from Massachusetts during the period leading up to the Civil War. He first rose to regional prominence through his defense of New England shipping interests...
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
Tariff of 1828
The Tariff of 1828 was a protective tariff passed by the Congress of the United States on May 19, 1828, designed to protect industry in the northern United States...
and the Tariff of 1832
Tariff of 1832
The Tariff of 1832 was a protectionist tariff in the United States. It was largely written by former President John Quincy Adams, who had been elected to the House of Representatives and been made chairman of the Committee on Manufactures, and reduced tariffs to remedy the conflict created by the...
, 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
Andrew Jackson
Andrew Jackson was the seventh President of the United States . Based in frontier Tennessee, Jackson was a politician and army general who defeated the Creek Indians at the Battle of Horseshoe Bend , and the British at the Battle of New Orleans...
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
Proclamation to the People of South Carolina
The Proclamation to the People of South Carolina was written by Edward Livingston and issued by Andrew Jackson on December 10, 1832. Written at the height of the Nullification Crisis, the proclamation directly responds to the Ordinance of Nullification passed by the South Carolina legislature in...
, 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
Tariff of 1833
The Tariff of 1833 was proposed by Henry Clay and John C. Calhoun as a resolution to the Nullification Crisis...
. While the Nullification Crisis
Nullification Crisis
The Nullification Crisis was a sectional crisis during the presidency of Andrew Jackson created by South Carolina's 1832 Ordinance of Nullification. This ordinance declared by the power of the State that the federal Tariff of 1828 and 1832 were unconstitutional and therefore null and void within...
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 1850Fugitive slave laws
The fugitive slave laws were laws passed by the United States Congress in 1793 and 1850 to provide for the return of slaves who escaped from one state into another state or territory.-Pre-colonial and Colonial eras:...
. The most famous examples of this centered around northern states' personal liberty laws
Personal liberty laws
.....The personal liberty laws were a series of laws passed by several U.S. states in the North in respone to the Fugitive Slave Acts of 1793 and 1850.-Origins:...
. 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
Supreme Court of the United States
The Supreme Court of the United States is the highest court in the United States. It has ultimate appellate jurisdiction over all state and federal courts, and original jurisdiction over a small range of cases...
upheld the validity of the federal Fugitive Slave Act of 1793 in the case of Prigg v. Pennsylvania
Prigg v. Pennsylvania
Prigg v. Pennsylvania, , was a United States Supreme Court case in which the court held that the Federal Fugitive Slave Act precluded a Pennsylvania state law that gave procedural protections to suspected escaped slaves, and overturned the conviction of Edward Prigg as a result.-Federal Law:In June...
, 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
Ableman v. Booth
Ableman v. Booth, , is a case in which the Supreme Court of the United States held that state courts cannot issue rulings that contradict the decisions of federal courts, overturning a decision by the Supreme Court of Wisconsin....
, 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
Supremacy Clause
Article VI, Clause 2 of the United States Constitution, known as the Supremacy Clause, establishes the U.S. Constitution, U.S. Treaties, and Federal Statutes as "the supreme law of the land." The text decrees these to be the highest form of law in the U.S...
, 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 interpositionInterposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
resurfaced in the 1950s as southern states attempted to preserve racial segregation in their schools. In Brown v. Board of Education
Brown v. Board of Education
Brown v. Board of Education of Topeka, 347 U.S. 483 , was a landmark decision of the United States Supreme Court that declared state laws establishing separate public schools for black and white students unconstitutional. The decision overturned the Plessy v. Ferguson decision of 1896 which...
, 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
Cooper v. Aaron
Cooper v. Aaron, 358 U.S. 1 , was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court's decisions, and could not choose to ignore them.-Background of the case:...
, 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
Cooper v. Aaron
Cooper v. Aaron, 358 U.S. 1 , was a landmark decision of the Supreme Court of the United States, which held that the states were bound by the Court's decisions, and could not choose to ignore them.-Background of the case:...
directly held that state attempts to nullify federal law are ineffective.
The Supreme Court rejected interposition
Interposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
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 interpositionInterposition
Interposition is an asserted right of U.S. states to declare federal actions unconstitutional. Interposition has not been upheld by the courts. Rather, the courts have held that the power to declare federal laws unconstitutional lies with the federal judiciary, not with the states...
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
Report of 1800
The Report of 1800 was a resolution drafted by James Madison arguing for the sovereignty of the individual states under the United States Constitution and against the Alien and Sedition Acts. Adopted by the Virginia General Assembly in January 1800, the Report amends arguments from the 1798...
, 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.External links
- 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 WoodsThomas WoodsThomas E. "Tom" Woods, Jr. is an American historian, economist, political analyst, and New York Times-bestselling author. He has written extensively on the subjects of American history, contemporary politics, and economic theory...
' book on the subject in the American Conservative