When opponents of nullification fail to associate it with slavery and segregation, they turn to taking quotes of its proponents out of context, such as claiming Madison later opposed it in his famous Notes on Nullification.
Far from being an opponent of nullification, James Madison only opposed a specific proposal for nullification.
And even while denouncing that proposal, he continued to advocate nullification as a right that no one would disagree with, when used in response to “insupportable oppression.”
Michael Maharrey, communications director for the Tenth Amendment Center, clears up the ambiguity in his short handbook Smashing Myths: Understanding Madison’s Notes on Nullification. A mere 50 pages, it places Madison’s statements not only within the context of the Notes but also the historical context during which it was written.
The book, written in plain, effective prose, provides a thorough and understandable explanation for any perceived opposition on Madison’s part to nullification.
At the heart of the matter, Maharrey writes, is a fundamental difference between what Madison articulated in the Virginia Resolutions of 1798 and The Virginia Report of 1800 and what was carried out by the South Carolina legislature when it approved the Ordinance of Nullification that led to the 1832 Nullification Crisis.
The Virginia Resolutions, along with The Kentucky Resolutions authored by Thomas Jefferson, were not acts of nullification. Instead, they laid the philosophical groundwork for nullification by asserting the right of states to place checks on the feds when they went beyond the delegated powers in the Constitution. The resolutions, did not, however, create a specific process for how nullification would be carried out.
Decades later, when John C. Calhoun proposed nullification for the state of South Carolina, he also included a specific process, based on the Constitutional structure in his view.
Specifically, the state’s Nullification Ordinance held that a state’s nullification act legally bound all the other states in the Union. It also claimed that once a state had passed such an act, it could only be overruled if three-quarters of the states came together in convention to reject it. In other words, South Carolina was claiming the power to do something the Constitution was written to prevent. That is, allow one geographical area to hold the rest of the country hostage.
Madison vehemently opposed this in what he referred to South Carolina’s “peculiar doctrine” of nullification. This ordinance and the particular claims it made are what Madison opposed, not nullification in general.
In fact, right in the middle of the writings nullification opponents cite to claim that Madison considered all nullification to be dangerous, Madison himself said the opposite.
“The right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression,” he wrote.
Maharrey explains the legal reasons for why such claims had profound political implications, and that although there were differences between the nullification Madison and Jefferson advocated, primarily in when nullification should be used, the South Carolina approach was far beyond anything either of the two Founders proposed.
By differentiating between the nullification of Jefferson and Madison and the nullification of Calhoun, Maharrey helps elucidate seemingly contradictory statements Madison made on the same topic, when in fact they were not.
The handbook goes on to examine the political implications of Calhoun’s version of nullification and how the modern-day nullification movement is not modeled in the spirit of South Carolina’s Ordinance of Nullification, but based on the nullification Jefferson ideas put forth in the Kentucky Resolutions and later carried out by abolitionists in northern states like Wisconsin in defiance of the Fugitive Slave Act.
Not surprisingly, it is Calhoun’s version which is most often connected to efforts by the Tenth Amendment Center to nullify unconstitutional federal laws when attempting to dismiss it, as he also happened to be a vocal defender of slavery.
Maherrey concludes with a strong call to action, writing that nullification means nothing unless people are willing to put it into effect by their actions, at which point they are certain to encounter resistance and attack, as the TAC has.
Fortunately, Smashing Myths: Understanding Madison’s Notes on Nullification offers a concise, but indispensable defense of nullification as Madison and Jefferson – not as Calhoun – saw it.
NOTE: Michael Boldin contributed to this review.