One of the common criticisms raised against nullification is the claim that the principle is grounded in idealism, and cannot be actualized in a realistic world. From this perspective, it has also been alleged that nullification will fail because states may hold a relatively high amount of sovereign authority, but individuals do not. Thus, any type of individual indignation over unconstitutional legislation would be frivolous and ineffectual.
On the contrary, these principles start with individuals that display resentment and outrage, and have created obstructions that rendered federal policy impossible to enforce, even by powerful federal agencies. In 1798, these ideas started within the minds of Jefferson and Madison, and branched out from there until Kentucky and Virginia passed nullification resolutions addressing the Alien and Sedition Acts.
The other cases of nullification have had the same impetus. It takes the spark of a single individual to recognize that laws that are unjust, immortal, or unconstitutional are not to be imposed without resistance.
Massachusetts acted to nullify the Embargo Act of 1807, which neutered its maritime economy. When this was done, many said it would be impossible to object to and oppose the federal officials responsible for enforcing the act. The citizens revolted against them by smuggling goods and acting in the manner that Madison wrote was necessary to “arrest the progress of evil.” Eventually, this Act became economically disastrous and too challenging for the federal government to enforce, so it was annulled. Nullification worked.
Various northern states met at the 1814 Hartford Convention to discuss how to oppose federal attempts to conscript individuals without parental consent. Massachusetts and Connecticut passed laws that nullified such conscription attempts by the federal government during the War of 1812. The skillful orator Daniel Webster spoke out vigorously against them, and reaffirmed the “Principles of 98.”
In the face of resistance and persuasive dispute, Madison’s conscription proposals fell flat and the War of 1812 ended before Congress was able to enact the legislation. Nullification worked.
During the “Nullification Crisis” of 1832, South Carolina nullified the so-called “Tariffs of Abomination,” which stifled the southern economy and forced the purchase higher-costing goods from the north rather than those that could be obtained through the free global markets. South Carolina caused such uproar in the federal government that President Andrew Jackson declared the nullifiers traitors. He then urged the federal government to pass the Force Bill, which would have endorsed military violence to enforce the tariff. Even in the face of this threat, the federal government still worked with the resentful government of South Carolina to create a new negotiated tariff that was much less extreme and more favorable to southern economic interests. Nullification worked.
After the passage of the Fugitive Slave Act of 1850, many said that the military commissions set up by the federal government to apprehend slaves were insuperable, and could never be realistically opposed. The federal government devoted significant resources to employing agencies that rigorously enforced these laws, despite the fact that they robbed individuals of their liberty. Northern states, from Wisconsin to Vermont lined up to oppose and eventually nullify such statues. Sherman Booth led an armed mob to free runaway slave Joshua Glover from his jail cell, after the people of Wisconsin were so moved by his story.
The Fugitive Slave Act of 1850 was made to be blatantly unenforceable, causing southern aristocrats such as Jefferson Davis to display a sheer disdain toward this trend, and to realize its obstructionist potential (see Davis’s Farewell Address to the Senate in 1861). It also was a primary reason South Carolina departed from the union (see South Carolina’s secession ordinance of December, 1860). Nullification worked.
Today, states of all political persuasions are working to nullify federal acts and make it nearly impossible for the federal government to enforce all sorts of legislation: whether it be to guard against attempts to deprive individuals of firearms, to rob them of their guarantee of privacy, or to seize their due process rights.
While agencies like the IRS and NSA seem imposing, the efforts of the states are already making a difference.
One can see this by the manner in which the federal government has campaigned to justify such behavior, when they have never done so prior to such opposition. If enough people and states act to nullify and interpose, the efforts to audit or impede individual liberty would prove too overwhelming to effectively perform, and attempts to receive personal data would be obstructed by many devices at the disposal of the state governments. Nullification works.
Even the Supreme Court (the body most likely to endorse the enlarging sphere of federal power, as part of the federal government itself) has been forced to concede that states do not have to go along with the commandeering techniques consistent with unconstitutional standards that are levied by the federal government (see the opinion of Printz v. The United States, 1997). This guideline, known as the “anti-commandeering doctrine,” has been embraced successfully by states who wish not to be coerced or subjugated to unconstitutional standardization efforts of the federal government.
The more evident historical truth is that when enough individuals/localities oppose malignant exercises, strength in numbers is too overwhelming for the federal government to suppress. Individual efforts seem only to confirm this: such actions have only disseminated First, Second, and Fourth Amendment discussions around the country, where previously they were hardly mentioned in most circles. Surely, just like in the case Samuel Adams, John Hancock, and the Sons of Liberty, it took spirited and often controversial forms of resistance toward such measures to change the world.
History instead suggests that the world only changes when the conversation is altered and the argument is won. Regardless of how imposing and powerful the federal government seems to be, that has remained a historical truism.
It has only been through neglect of the Constitution that the alternative, defeatist mentality has arisen. Such an outlook provides sanction to a government that is much more consistent with that of a monarchy than a republic. It has acted to allow for such transgressions to occur, without impunity and without recourse.
The inclination to grant monopoly power to the federal government in order to define the extent of its own authority has proven disastrous. Instead, we can bring about the potential of nullification with the understanding that liberty is more likely to exist when localities are spurred to act as a bulwark of resistance against federal overreach. The catalyst for this remedy must always be the individual.
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