Those who oppose nullification argue that the Supreme Court never once upheld the legitimacy of the principle, and on several occasions, rejected it.
This should come as no surprise, considering asking it to affirm nullification means asking it to renounce its own self-declared absolute supremacy in matters of constitutional interpretation. People simply don’t pull the rug out from under themselves and willingly relinquish power.
This obvious truth explains why Thomas Jefferson emphatically rejected the idea of federal judicial supremacy in determining the extent of federal power in the Kentucky Resolutions of 1798.
The government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers.
Simply put, we cannot count on a branch of the federal government to limit the powers of the federal government.
But it will likely surprise many to learn that at least one Supreme Court justice affirmed that states can indeed nullify a federal act and ignore a Supreme Court decision.
Justice John McClean wrote a dissenting opinion in Prigg v. Pennsylvania (1842).
At issue was the snatching of a woman and her child from Pennsylvania by Maryland slave catchers. Margaret Morgan lived free in Pennsylvania for many years after her “owner” set her free. But he never formally manumitted her, and his widow eventually decided she wanted to reclaim her “property.” When Prigg took Morgan and her child back to Maryland, he failed to follow the procedures in Pennsylvania’s personal liberty law. The state eventually served Prigg with an arrest warrant for kidnapping. He asserted the Fugitive Slave Act of 1793 trumped Pennsylvania s law, and held that the state had no authority to interfere with his slave rendition.
On an interesting side-note, the child was born in Pennsylvania and technically free. The Court never even considered this aspect of the case. Morgan and her child both disappeared – likely sold further south.
Justice Joseph Story wrote the majority opinion in this fugitive slave era case. He agreed with Prigg. Story held that Congress had the sole authority to legislate in the matter of fugitive slave rendition, and state governments couldn’t interfere in any way. This prohibition of state action included state laws designed to protect free blacks from kidnapping.
McClean agreed to a point. He affirmed that Congress enjoyed exclusive power to legislate the manner of fugitive slave rendition, but held that states could still exercise their duty to protect the liberty of their free citizens.
Buried in his dissenting argument, McClean acknowledges that even if Congress possesses the authority legislate exclusively, it cannot compel the states to act. Furthermore, the state supreme courts can refuse to acknowledge the opinion of the U.S. Supreme Court.
I go no further than to say that, where the Constitution imposes a positive duty on a State or its officers to surrender fugitives, Congress may prescribe the mode of proof and the duty of the state officers.
This power may be resisted by a State, and there is no means of coercing it. In this view, the power may be considered an important one. So, the supreme court of a State may refuse to certify its record on a writ of error to the Supreme Court of the Union under the 25th section of the Judiciary Act. But resistance to a constitutional authority by any of the state functionaries should not be anticipated, and if made, the Federal Government may rely upon its own agency in giving effect to the laws. [Emphasis added]
Turns out, McClean was prophetic. In the late 1850s, the Wisconsin Supreme Court declared the Fugitive Slave Act of 1850 unconstitutional. The U.S. Supreme Court struck down the state court’s ruling and issued a writ of error. The Wisconsin court refused to certify it. To this day, the SCOTUS decision in Ableman v. Booth has not been acknowledged by the state.
More importantly, many northern states completely disregarded the majority opinion in Prigg v. Pennsylvania. Neither New York nor New Jersey repealed their personal liberty laws, despite provisions conflicting with the Court’s opinion. And they continued to enforce their state laws. For instance, an 1846 habeas corpus ruling in New York resulted in the release of an alleged fugitive slave.
Fugitive slave era scholar H. Robert Baker wrote, “Within these pedestrian operations of the law, Prigg v. Pennsylvania exerted no influence. People continued to turn to state law to determine procedures for fugitive slave rendition.”
And when Congress passed a new fugitive Slave Act in 1850, tailoring its provisions around the Prigg opinion, nearly every northern state passed new personal liberty laws, many with provisions interfering with the federally mandated process, in defiance of the Supreme Court.
Many black citizens benefited directly from the bold action of northern legislatures, backed by the will of the people.
Of course, the feds did try to “rely upon its own agency in giving effect to the laws,” and occasionally had success. But ultimately, the federal government didn’t have the resources to enforce the fugitive slave act, and it was effectively nullified. Several southern states listed “nullification” (and they used the word) of the Fugitive Slave Act in their declaration of causes for secession.
Nullification does not depend on the sanction of federal courts. The people of the states make the final determination when it comes to the extent of federal power, as James Madison asserted in his Report of 1800.
The States then being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity, that there can be no tribunal above their authority, to decide in the last resort, whether the compact made by them be violated; and consequently that as the parties to it, they must themselves decide in the last resort, such questions as may be of sufficient magnitude to require their interposition.
And as McClean said, states can resist federal power. It stands as a legitimate exercise of state authority to protect the rights and liberties of its people, and preserve the Constitution from federal usurpation. If no authority exists to resist federal overreach, if the federal government indeed determines the limits of its own power, then in reality, we live under an unlimited all-powerful federal government.
To quote Madison, a federal government of unlimited power “would be a metamorphosis of the Constitution into a character which there is a host of proofs was not contemplated by its creators.”
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