Pundits, members of the media, and legal experts generally focus exclusively on nullification in a purely legal sense, specifically on a particular process created and proposed by South Carolina Sen. John C. Calhoun during the so-called tariff crisis in the late 1820s and early 1830s. By doing this, they completely ignore nullification happening in a more practical sense.
Calhoun held that since each state is a party to a legal compact – the Constitution – each state had the constitutional authority to determine whether or not it had been exceeded or violated. In his conception of the process, a single state could then take a steps to legally nullify any act it deemed unconstitutional.
However, Calhoun’s scheme isn’t the only path we can follow to render a federal act null and void, or simply unenforceable in practice. Looking at nullification from a results-oriented, practical understanding, there are various avenues to nullify beyond Calhoun’s peculiar legal process. In fact, Thomas Jefferson himself mentioned no specific path to nullify in the Kentucky Resolutions. He never outlined a process, much less an exclusive method of nullification, like Calhoun claimed.
The nullification process Calhoun conceived tracked closely to the general principle Thomas Jefferson wrote about in the Kentucky Resolutions of 1798, asserting that a part of the federal government (the Supreme Court that is) could not serve as the final arbiter in determining the extent of federal power. Jefferson wrote:
“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; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself, as well of infractions as of the mode and measure of redress.”
But Calhoun took this general principle and invented his own elaborate process to carry out nullification. As I noted in my handbook Smashing Myths: Understanding Madison’s Notes on Nullification.
“The Calhoun-inspired South Carolina plan for nullification held that if a single state declared a federal act unconstitutional, it legally repealed the law. From that point forward, the state’s position would be recognized as legally binding, correct and true until ¾ of the other states, in convention, overruled the single state and overturned its nullifying act.”
James Madison was asked to offer his opinion on the proposal and came down strongly against it. And rightly so, based primarily on the “peculiar” (his word) process that Calhoun and South Carolina proposed. The Smashing Myths handbook covers Madison’s views in more detail.
At the time of the founding, the federal government did very little in comparison to what it does today. The size, scope and reach of the federal government in the early days of the American republic would barely register as a blip in the 21st Century.
Because of its massive size and reach, the federal government has become more and more dependent on state and local support to carry out its laws and regulatory programs. We witness this with most federal programs. Here are some examples.
- Federal enforcement of laws across the spectrum include a state or local component in the vast majority of cases. Whether they are going after firearms, marijuana, or something else, when the feds carry out a raid, state and local law enforcement almost always supports them. In many cases, state and local personnel on the scene outnumber federal agents.
- Programs like the Affordable Care Act count heavily on states to implement and execute the program. When states refuse to set up exchanges or expand Medicaid, it has a significant impact on the federal government’s ability to operate the program as planned.
- Some federal laws, like the REAL ID act, rely almost entirely on states to implement them.
Today, very few federal programs operate on federal resources alone. This holds true of NSA spying, enforcement of gun regulations, drone surveillance, prohibition and countless other federal actions.
During the partial, temporary federal government shutdown in 2013, the National Governor’s Association confirmed this reality in a statement expressing its concern.
States are partners with the federal government in implementing most federal programs. A lack of certainty at the federal level from a shutdown therefore translates directly into uncertainty and instability at the state level.
Not some federal programs – most of them.
Logic dictates that if a lack of participation on the federal side of this “partnership” can cause problems for states, the opposite holds true as well. The “Father of the Constitution” knew this in 1787, and it holds true today.
- New Evidence: The Kentucky Resolutions of 1798 Were All About Nullification - January 9, 2021
- The Anti-Commandeering Doctrine: An Introduction - January 4, 2021
- Dear Gun People, Follow the Lead of the Weed People - December 30, 2020