What was the legal theory under which states were able to reject federal laws deemed unconstitutional?

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kipling2448 | (Level 3) Educator Emeritus

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The legal theory under which states were able to reject federal laws deemed unconstitutional was called “nullification.”

As all students of American history know, the debate over the fundamental question of states’ rights was among the most enduring since the ratification of the Constitution of the United States.  The authors of the nation’s most important documents, the Declaration of Independence and the Constitution, were all heavily influenced by notions of representative government and restrictions on the power of all forms of government.  The constitution was drafted and debated within the context of a revolution intended to eliminate the tyranny of a distant monarchy, and Jefferson, Madison, Hamilton and others wanted very much to establish a form of government that would be inherently incapable of imposing itself upon those it ostensibly represented and on whose behalf it presumably acted.  Integral to these discussions and debates the question of where and how to draw the line between the end of federal authorities and beginning of the authorities granted the states.  The effort at drawing that line resulted in ratification, on December 15, 1791, of the Tenth Amendment to the Constitution, which states:

“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.”

The issue of nullification would emerge as an important symbol of the fractured nature of the newly-established United States of America, and the debates that would occur leading up the Civil War, the ultimate manifestation of the nation’s inability to peacefully resolve that debate, revealed the extent of the disagreements regarding the line between the federal government and the states.  In his impassioned, but anonymously delivered, plea for rejection of the Alien and Sedition Acts that he believed threatened the viability of the democratic nature of the government he worked so hard to bring to fruition, Thomas Jefferson authored what became known as “the Kentucky Resolutions,” presented on November 10, 1798, which included the following defense of the concept of nullification while restating the intent of the Tenth Amendment:

“. . .where powers are assumed which have not been delegated, a nullification of the act is the rightful remedy: that every State has a natural right in cases not within the compact, (casus non faederis) to nullify of their own authority all assumptions of power by others within their limits: that without this right, they would be under the dominion, absolute and unlimited, of whosoever might exercise this right of judgment for them . . .”

Jefferson’s visceral disdain for the notion of an all-powerful central government, fearing a reestablishment, under the right circumstances, of a tyrannical form of rule, insisted on emphasizing the authorities of the states to reject decrees or acts emanating from that central government that they deemed unconstitutional.  The earlier ratification of the Tenth Amendment, and Jefferson’s assertions of the legitimacy of the doctrine of nullification, however, did not resolve the debate regarding states’ rights.  In fact, as noted, that debate was destined to be violently resolved through the civil war yet to come. 

Striking the proper balance between the respective authorities of the federal and state governments remained intractable, as Jefferson’s concerns about remaining vigilant against formation of a federal government that infringed fundamental liberties was perceived by some as tilting that balance too far in the states’ favor.  Others, most notably President Andrew Jackson, were not so sanguine regarding the viability of the nation absent a unifying, influential central government.  As Jackson recognized, the states were equally capable of contravening the word and intent of the Constitution every bit as much as the federal government.  The irony in this position, of course, rested on the fact that President Jackson, from Tennessee (i.e., a Southerner) was an ardent supporter of states’ rights, as was Vice President John C. Calhoun.  As president, though, and a strong supporter of the Union, he recognized the fragility of the nation and the consequences of a tilt in the balance too far in the states’ direction.  Jackson and his own vice president would, interestingly, approach the issue of nullification from two different perspectives despite their shared Southern origins.  Calhoun was from South Carolina, a state directly impacted by the pressing issue of tariffs, and shifted his political position from initially supporting the Tariff Act of 1816 to one in direct opposition to it.  It was Calhoun, then, who led the fight for nullification with regard to the tariff law. 

Jackson’s response to the nullification movement led by his own vice president was expressed most eloquently in his December 10, 1832, attack on the doctrine of nullification, in which he declared the following:

“If this doctrine had been established at an earlier day, the Union would have been dissolved in its infancy. The excise law in Pennsylvania, the embargo and non-intercourse law in the Eastern States, the carriage tax in Virginia, were all deemed unconstitutional, and were more unequal in their operation than any of the laws now complained of; but, fortunately, none of those States discovered that they had the right now claimed by South Carolina. The war into which we were forced, to support the dignity of the nation and the rights of our citizens, might have ended in defeat and disgrace instead of victory and honor, if the States, who supposed it a ruinous and unconstitutional measure, had thought they possessed the right of nullifying the act by which it was declared, and denying supplies for its prosecution. Hardly and unequally as those measures bore upon several members of the Union, to the legislatures of none did this efficient and peaceable remedy, as it is called, suggest itself. The discovery of this important feature in our Constitution was reserved to the present day. To the statesmen of South Carolina belongs the invention, and upon the citizens of that State will, unfortunately, fall the evils of reducing it to practice.”

Jackson had found himself in the paradoxical position of opposing the very expression of states’ rights he was otherwise constitutionally predisposed to support.

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