Was the Theory of Nullification Constitutional?
The Nullification Crisis of the 1830s was not really a question of the tariff but of the constitutionality of the tariff. South Carolina felt the tariff was unconstitutional because it unfairly taxed one section of the country for the benefit of another. They believed that it favored the Northern manufactures over the Southern planters. In 1828 South Carolina’s leaders requested that the then Vice-President of the United States, John C. Calhoun, write up a protest to the Tariff of 1828. By studying the controversy over the Alien and Sedition Acts of 1798-1799 Calhoun believed he had found a way for South Carolina to legally object to the Tariff of 1828. That way was state interposition, as conceived by James Madison and Thomas Jefferson.
John C. Calhoun was the first person to fully develop the theory of nullification. According to him, a state could nullify a federal law if that law was unconstitutional. The proper way to accomplish this was by a special convention; with the representatives elected by the people. The state was also, according to Calhoun, the proper entity to judge when a law was unconstitutional. According to Calhoun’s theory the steps required to nullify a federal law followed in order: a state decides that a federal law is unconstitutional, a special state convention is called, the people elect representatives to the special convention, the representatives vote on rather or not to nullify the law in question. If the vote is for nullification the state convention sends a document to the federal government listings its reasons for nullifying the law and the remedies it requires the federal government to make for the state to consider the law constitutional.
According to Calhoun, the nullification theory is just a more elaborate version of state interposition. State interposition was proposed by James Madison and Thomas Jefferson in the late 1790s as a protest to the Alien and Sedition Acts that were passed by President John Adams. Calhoun claimed that Jefferson was the true father of nullification. In the Draft of the Kentucky Resolution it states that “…the co-States, recurring to their natural right in cases not made federal, will occur in declaring these acts void, and of no force.” 1 There is no mention of nullification in the draft. However, in the Kentucky Resolution of 1799 there is. It states that “the several states who formed that instrument, being sovereign and independent have the unquestionable right to judge of its infraction; and that nullification…is the rightful remedy.” 2 One thing that Calhoun neglected to mention was that the Kentucky Resolution was not written solely by Jefferson. 3 It was an amalgamation of various thoughts that was put into a coherent form by Jefferson. James Madison was another founding father that supposedly had a hand in the creation of nullification. James Madison in the Virginia Resolution of 1798 states that “in case of a deliberate, palpable, and dangerous exercise of…powers…the states…have the right…to interpose.” 4 These were the precedents Calhoun used to create the theory of nullification and to justify it.
The largest argument surrounding the nullification theory was rather it was constitutional or not. Calhoun believed that the Constitution was a compact between individual States and the Federal Government, that the federal government did not possess the right to judge for itself if its laws were constitutional or not, and that sovereignty rested with the States not with the people of the United States. 5 Calhoun and all the rest of the nullifiers believed that the “Constitution was a compact between the states and the federal government, as opposed to the people and the federal government.” 6
On the other side of the argument were James Madison and Andrew Jackson. James Madison argued vehemently against the constitutionality of nullification insisting that one state cannot void a federal law and that the people are the proper place for any decisions concerning the limitations of the federal government. In The Federalist 44 he stated “in the last resort a remedy must be obtained from the people, who can…annul the acts of the usurpers” 7 and in 46 he said “the ultimate authority… resides in the people alone.” 8 Making it clear that he believed the Constitution to be a compact between the people and the federal government, with the states only being a voice for the people.
Andrew Jackson also had an opinion on this subject. He believed that the Federal Government was by the people, for the people, and of the people. Jackson was the people’s President and his job, as outlined in the oath of office, was to “preserve, protect, and defend the Constitution of the United States.” 9 He considered South Carolina’s threat of secession as nothing more than treason and nullification as only a little better. In the Proclamation Regarding Nullification, Jackson declared that he considered “the power to annul a law of the United States…incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution.” 10 He also believed that the Supreme Court was the final judge of the constitutionality of laws passed by the federal government.
The Constitution, itself, states that it is the “supreme Law of the Land; and the Judges in every State shall be bound thereby.” 11 It also mentions that “the members of the several State Legislatures shall be bound by Oath or Affirmation, to support this Constitution.” 12 In addition in Article III, Section 2 the Constitution plainly states that the “judicial power shall extend to all cases, in Law and Equity” and that “in all cases…in which a state shall be a party, the supreme Court shall have original Jurisdiction.” 13 The Constitution lays out exactly how a question of constitutionality should be handled and what options are available. It makes the Supreme Court the final judge on what is and is not constitutional and exactly what powers the Federal Government has. The Constitution was “ratified by special state conventions elected for that exclusive purpose rather than by the state legislatures, thereby making a clear statement that it was a creature of the people at large and not a compact among the states.” 14
The theory of nullification was based on the theory of state interposition. The differences between the two theories were subtle but they did exist. The major difference being that the theory of state interposition required more than one state to void a law; where the nullification theory required only one state to void a federal law. Another difference was the end results expected from each theory. State interposition hoped to change the law in a non-combative way. It was a peaceful protest against the Alien and Sedition Acts that relied on the people to elect more responsible representatives during the next elections. The nullification theory hoped to change the law using force if necessary. The two theories may have had the same desired outcome in common but that was all. The nullification theory presupposed that the Constitution was a compact between the states and the federal government and that the state had a right to judge when the federal government overstepped its bounds. On the other hand, state interposition believed that the Constitution was a compact between the people and the federal government and that they were the only body who could judge when the federal government had overreached itself. In the course of events it was shown that state interposition was the more successful. The Alien and Sedition Acts were repealed. Nullification was settled with compromises that were actually more detrimental to the South than the previous tariffs had been and with a threat of force by the federal government.
According to Madison and Jackson a state is not a party of the constitutional compact. The constitution is a compact between the people of the states and the federal government and as such a state has no right to oppose a law of the federal government unless all the people in the state support that view. The Supreme Court is the final arbiter of questions of constitutionality. When South Carolina passed their ordinance they added that there was no way to appeal the decisions of the state courts to the federal government. This was a clear violation of the Constitution. In conclusion, the theory of nullification was unconstitutional to its very core. It presumed the use of force and complete disobedience to the Constitution of the United States.
1. Thomas Jefferson. Draft of the Kentucky Resolutions October 1798.
2. Thomas Jefferson. Kentucky Resolution: 1799.
3. Thomas Hart Benton. Thirty Years View: or, A History of the Working of the American Government for Thirty Years, from 1820 to 1850. 148
4. James Madison. Virginia Resolution: 1798.
5. Benton. Thirty Years View. 334
6. Shannon Jones. The Nullification Crisis of 1832. Lourdes College. HST 430 Historiography 2006.
7. The Federalist Papers. ed. Clinton Rossiter. 282
8. Federalist Papers. 291
9. The Constitution of the United States. 1789. Article II, Section 1
10. Andrew Jackson. Proclamation Regarding Nullification, December 10, 1832.
11. The Constitution. Article VI
14. Joseph J. Ellis. American Creation: Triumphs and Tragedies at the Founding of the Republic. 108