Malcolm Rivera
The process of nullification is an act by a state that deems a federal law unconstitutional, declaring it void and unenforceable within the state. Nullification supporters argue that the Constitution is a contract between states, and that states have the right to judge compliance with it. While nullification may be undertaken by a single state, it does not invalidate federal law. The authority to amend the Constitution is derived from Article V, which requires an amendment to be proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of state legislatures. The process of amending the Constitution is complex, and the odds of repealing an amendment are extremely slim.
| Characteristics | Values |
|---|---|
| Nullification | An act by a state finding a federal law unconstitutional and declaring it void and unenforceable in that state |
| Who can nullify? | A single state or multiple states |
| Process | The state(s) must pass a resolution declaring the federal law unconstitutional and refusing to assist or concur in giving it effect |
| Example | In the 1820s, Georgia passed an act asserting its criminal law jurisdiction over Cherokee lands, nullifying federal treaties with the Cherokees |
| Alternative methods | Interposition, where states communicate with each other, petition Congress to repeal the law, introduce Constitutional amendments, or call a constitutional convention |
| Amendment proposal | Proposed by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of state legislatures |
| Amendment ratification | Requires three-quarters of the states' approval (38 out of 50) |
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What You'll Learn
Nullification by a single state
Nullification is a legal theory in United States constitutional history that a state has the right to nullify or invalidate any federal laws that they deem unconstitutional with respect to the United States Constitution. The theory of state nullification has never been legally upheld by federal courts.
The theory of nullification is based on the 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. According to supporters of nullification, if the states determine that the federal government has exceeded its delegated powers, the states may declare federal laws unconstitutional.
Nullification is usually considered to be an act by a state that finds a federal law unconstitutional and declares 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. However, Madison, in the Report of 1800, contemplated that interposition would be a joint action by a number of states, not an action by a single state. Interposition is considered less extreme than nullification because it does not involve a state's unilateral decision to prevent enforcement of federal law.
There have been three prominent attempts by states at nullification in American history. First, Kentucky’s attempt to nullify the Alien and Sedition Acts in 1798; second, South Carolina’s attempt to nullify two federal tariff laws in 1832; and third, Arkansas’s attempt to nullify Brown v. Board of Education (1954) in 1957. In each instance, nullification’s legitimacy as a constitutional theory was rejected.
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Interposition
Nullification is the act of a state declaring a federal law unconstitutional, void, and unenforceable within its borders. The theory of nullification is based on the view that the states formed the Union by an agreement ("compact") among themselves, and that as creators of the federal government, they have the final authority to determine the limits of its power. Nullification supporters argue that the power to declare federal laws unconstitutional is inherent in the concept of state sovereignty and is one of the powers reserved for the states by the Tenth Amendment.
- Communicating with other states about the unconstitutional federal 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 clarified that a state's act of interposition, unlike a judicial interpretation of the Constitution, has no legal effect. Instead, these declarations are expressions of opinion meant to mobilize opposition and enlist the cooperation of other states. He emphasized that interposition contemplated by him would involve joint action among multiple states, rejecting the notion that a single state could unilaterally determine the constitutionality of a federal statute.
During the Nullification Crisis of the 1830s, South Carolina attempted to declare null and void the federal Tariffs of 1828 and 1832 within its borders. Vice President John C. Calhoun secretly drafted the South Carolina Exposition and Protest, which outlined the state's grievances and furthered the doctrine of interposition. He argued that state "interposition" could block the enforcement of a federal law, and the state would be obliged to obey only if the law were made an amendment to the Constitution by three-quarters of the states.
While nullification and interposition were advocated by Thomas Jefferson and James Madison in the Virginia and Kentucky Resolutions of 1798, these attempts were rejected by other states and the Supreme Court in the 19th century. The Supreme Court affirmed that the power to declare federal laws unconstitutional lies with the federal judiciary, not the states, and that interposition is not a valid constitutional doctrine to block enforcement of federal law.
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State sovereignty
Nullification is a legal theory suggesting that states may evaluate the legality of federal laws and declare them unconstitutional with respect to the US Constitution. The intended effect is to invalidate (or nullify) the laws within the state's boundaries. The Tenth Amendment states that the powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Supporters of nullification argue that the states' power of nullification is inherent in the nature of the federal system. They argue that before the Constitution was ratified, the states were essentially separate nations. Under this theory, the Constitution is a contract among the states by which they 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. According to supporters of nullification, if the states determine that the federal government has exceeded its delegated powers, the states may declare federal laws unconstitutional.
The Federalist Papers, however, contradict the notion that states have the power to nullify federal law. Federalist No. 33 states that federal laws are supreme over the states, as long as those laws are within the federal government's delegated powers. Federalist No. 39 directly addresses the question of who decides whether the federal government has exceeded its delegated powers and 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.
In the 19th century, several states relied on the interpretation of the Kentucky and Virginia Resolutions, drafted by James Madison and Thomas Jefferson, to declare nullification of federal laws or decisions of the US Supreme Court. However, the Supreme Court struck down all such efforts. One notable example is the Nullification Crisis, when South Carolina declared the tariffs of 1828 and 1832 void within the state, which was resolved through a combination of tariff adjustments and the threat of military intervention by President Andrew Jackson.
The Civil War ended all appeals to state sovereignty, and the Supreme Court's authority as the highest interpreter of constitutional law ceased to be challenged. In Martin v. Hunter's Lessee (1816), 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 and gives the Supreme Court final authority in such cases. The Court stated that the people, by providing the Supreme Court with final authority in the Constitution, had chosen to limit the sovereignty of the states.
While nullification has been historically controversial, the Tenth Amendment continues to play a role in shaping the relationship between state and federal powers. The Supreme Court has relied on the Tenth Amendment to analyse congressional enactments that allegedly intrude upon state sovereignty, such as determining whether Congress may apply general economic regulations to states. The Court has also acknowledged that there are certain attributes of state sovereignty that cannot be impaired by Congress, such as the power to determine wages for state employees.
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The Tenth Amendment
The concept of nullification emerged in the context of slavery, with Southern states considering it a tactic to resist federal attempts to abolish slavery. In 1828, Vice President John C. Calhoun championed nullification in response to federal tariffs, interpreting the Tenth Amendment as providing states with a veto over federal legislation. South Carolina passed the "Ordinance of Nullification," declaring the tariffs of 1828 and 1832 null and void.
In recent times, several states have proposed legislation declaring federal laws "unconstitutional" based on alleged violations of rights guaranteed under the Tenth Amendment. Examples include the Texas Heartbeat Act and the Missouri Second Amendment Preservation Act. However, critics argue that these nullification arguments are flawed and an attack on the Tenth Amendment's principles.
While nullification has a long history in the United States, the Supreme Court has rejected attempts by states to nullify federal law, as seen in cases like Worcester v. Georgia. The Court's rulings emphasize the supremacy of federal law and the limits on state power in relation to the Constitution.
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The Embargo Act of 1807
Nullification in the context of the US Constitution refers to an act by a state that deems a federal law unconstitutional and declares it void and unenforceable within the state. The power of nullification is considered inherent in the nature of the federal system, with supporters arguing that the Constitution is a contract among the states, and that the states retained the inherent right to judge compliance with it.
The Act was signed into law on December 22, 1807, by President Thomas Jefferson, who chose economic retaliation to assert American rights and avoid military conflict. Jefferson recognised that the United States was militarily weaker than Britain or France, and commercial warfare would harm his domestic opponents more than his allies.
The Embargo Act ultimately failed to improve America's diplomatic position and increased international tensions. It also had unintended economic consequences, stimulating American manufacturing and investment in domestic industries, particularly in the North.
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Frequently asked questions
Nullification is an act by a state that finds a federal law unconstitutional and declares it void and unenforceable within that state.
A state can nullify a federal law by passing a resolution that declares the law unconstitutional and unenforceable within the state. The state may also make it illegal to enforce the federal law in question.
The US Constitution can be amended through a proposal by two-thirds of the House and Senate, or by a constitutional convention called for by two-thirds of the state legislatures. The amendment is then ratified by three-quarters of the states, at which point it becomes part of the Constitution.
While there is no mechanism to directly nullify an amendment to the US Constitution, states can declare a federal law unconstitutional and refuse to enforce it within their borders. This is based on the interpretation that the Constitution is a contract or "compact" among the states, allowing them to retain certain powers and judge compliance with the compact.
