At some point in virtually every debate, an opponent of nullification will claim James Madison is on their side and that he opposed the practice.
This despite the very clear meaning of the words in the Virginia Resolutions of 1798. So what gives? Was Madison for nullification before he was against it?
In 1798, Madison clearly supported nullification, or as he called it, “interposition.” He declared, “in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact, the states who are parties thereto, have the right, and are in duty bound, to interpose for arresting the progress of the evil” … “to preserve the Constitution itself as well as to provide for the safety of the parties to it”
Then, in Dec. 1834, he wrote, citing Jefferson, “…but, where powers are assumed which have not been delegated … every State has a natural right in cases not within the compact, to nullify …”
Then Madison concludes, “Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression.”
Was Madison for nullification, then against it, then for it again? Was he losing his mind in his later years? Or is there more to this than nullification opponents would have you believe?
When I was in Maine a few months ago, a nullification skeptic brought up one of these letters in a public meeting, trying to claim Madison had changed his mind. I called him out for having no clue of the context of these letters, and educated him and his followers that were with him.
Madison was speaking against the misapplication of the nullification principle as promoted by South Carolina at the time. He referred to the nullification process created by the state as “… this offspring of the discontents of South Carolina … ”
Practically speaking, the state claimed it could nullify a trade tariff and block its implementation anywhere in the union, unless and until an Article V convention could be convened. The convention would then have to overturn South Carolina’s action by a 3/4 majority vote, to approve the tariff in question. This is clearly a distortion of the principles of nullification, as well as the Article V convention process.
Madison never opposed nullification, only its misuse and misapplication. He was opposed to a specific process created by South Carolina, not the underlying principles.
Of course he could not oppose it in principle, because true nullification is nothing more or less than upholding the Constitution, as required by swearing an oath of office. As such, nullification is not “extra-constitutional.”
It is required in Article VI, Clause 3.