Is there a big difference between nullification as understood by Thomas Jefferson and James Madison, and the modern nullification movement?
Not as big as it might seem at first glance.
Writing for the Mises Wire, Zachary Garris provides a fantastic overview of the history of nullification, tracing it back to its roots in the Kentucky and Virginia Resolutions of 1798. He accurately distinguishes between legal nullification and practical nullification, something we emphasize at the Tenth Amendment Center. He uses the term “neo-nullification” to describe nullification through non-cooperation – what we call nullification in effect.
“Neo-nullification has been enabled by the Supreme Court’s anti-commandeering rulings in New York v. United States (1992) and Printz v. United States (1997), where the Court held that the federal government cannot commandeer state officials (New York) or state legislatures (Printz) to enforce federal law. This leaves a loophole for states to ignore federal law with the hopes that the federal government will not enforce its laws within the states.”
Garris contrasts “neo-nullification” with historical nullification as outlined in Jefferson and Madison’s resolutions, andor legal nullification advanced by South Carolina during the tariff crisis in the late 1820s and early 1830s. Along the way, he draws a sharp distinction between the approaches.
“The movement to legalize marijuana at the state level is often described as “nullification.” Strictly speaking, however, this is not nullification. Genuine nullification is where a state declares a federal act (law, ruling, etc.) to be unconstitutional and then obstructs that act’s enforcement within the state. This state veto of a federal act has its roots in the Virginia and Kentucky Resolutions of 1798 and 1799 and was put into practice by South Carolina during the Nullification Crisis of 1832–33. What is happening today with marijuana is that a state refuses to enforce a federal law within its territory. This is better termed “neo-nullification,” as the practice lacks the declaration of unconstitutionality and the obstruction of federal enforcement of the law.”
Garris hit the nail on the head in distinguishing between legal nullification and nullification in practice or effect. But he goes a step too far in his assertion that Jefferson and Madison were only talking about legal nullification in the Kentucky and Virginia Resolutions, and that the modern nullification movement is far removed from their approach.
In fact, the Kentucky and Virginia Resolutions didn’t set forth any kind of specific nullification strategy. They merely created a constitutional and philosophical framework to justify it. Jefferson and Madison didn’t attempt to describe how nullification would actually play out.
The resolutions were just a first step in a broader strategy Madison and Jefferson were developing to deal with the unconstitutional Alien and Sedition Acts. Correspondence between the two men provides a much clearer picture of what they were trying to accomplish in the long-run.
On November 17, 1798, one week after passage of the Kentucky Resolutions, Thomas Jefferson sent a draft to James Madison, along with a letter. He wrote:
I inclose you a copy of the draught of the Kentucky resolves. I think we should distinctly affirm all the important principles they contain, so as to hold to that ground in the future, and leave the matter in such a train as that we may not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.
The resolutions created a framework for action, but left the next steps open. In his original draft, Jefferson broadly asserted that each state should “take measures of its own for providing that neither these acts, nor any others of the General Government not plainly and intentionally authorized by the Constitution, shall be exercised within their respective territories.” Neither he nor Madison publicly said what those measures should include.
As Garris points out, South Carolina eventually created a process for legal nullification based on the Kentucky and Virginia Resolutions. Madison opposed the South Carolina scheme, yet continued to support the general principle of nullification, calling it “the natural right, which all admit to be a remedy against insupportable oppression.”
Madison did in fact provide us with a blueprint for effective nullification – before the Constitution was even ratified. In Federalist #46, he laid out a series of steps states could take to oppose “unwarrantable measures,” or even a “warrantable” measure that just happens to be unpopular. Madison wrote that “a refusal to cooperate with officers of the Union,” would create impediments and obstructions to federal actions. Here we see the roots of what Garris calls “neo-nullification.” Madison also suggested protests and petitions by the people, official condemnation of acts by state officials, and “legislative devices” at the state level ll could help thwart federal actions.
So, when Jefferson talked about “taking measures,” and “pushing as far as events will render prudent,” he likely had some practical steps in mind. Madison certainly did because he had considered the possibility of unwarrantable federal actions during the ratification debates. But Jefferson and Madison wanted to see how things played out before committing to specific actions. As it turns out, Jefferson’s election to the presidency paved the way to end the Alien and Sedition Acts. We will never know for sure what measure the two men might have used to accomplish nullification had the Federalists remained in power.
Garris focuses the “Carolina Doctrine” developed by John C. Calhoun and other South Carolina leaders to resist the “Tariff of Abominations.” But he doesn’t consider nullification’s most successful historical application – northern nullification of the fugitive slave acts. Northern states used both legal and practical strategies to make the fugitive slave acts unenforceable within their borders.
A few states took a legal approach, declaring the Fugitive Slave Act of 1850 unconstitutional and asserting a state’s right to nullify. For instance, in an 1854 fugitive slave case, the Wisconsin Supreme Court declared the Fugitive Slave Act of 1850 unconstitutional. Justice Abram Smith wrote, “Every jot and tittle of power delegated to the Federal Government will be acquiesced in, but every jot and tittle of power reserved to the States will be rigidly asserted.”
But most northern states used what Garris would call “neo-nullification” and simply refused to cooperate with enforcement of the fugitive slave acts. Some states prohibited the use of facilities such as jails for holding accused runaways. Some states prohibited state officers from participating in fugitive slave rendition. Some passed laws requiring jury trials for accused runaways.
While the legal maneuverings were important, it was simple state non-cooperation that ultimately rendered enforcement of the fugitive slave acts in northern states nearly impossible. There is no question that southerners considered this nullification – pure and simple. South Carolina leaders even said so in their declaration of causes for secession
“An increasing hostility on the part of the non-slaveholding States to the institution of slavery, has led to a disregard of their obligations, and the laws of the General Government have ceased to effect the objects of the Constitution. The States of Maine, New Hampshire, Vermont, Massachusetts, Connecticut, Rhode Island, New York, Pennsylvania, Illinois, Indiana, Michigan, Wisconsin and Iowa, have enacted laws which either nullify the Acts of Congress or render useless any attempt to execute them.”
This was not what Garris would call “genuine nullification.” But it was clearly nullification none-the-less.
Nullification is the goal – not a specific strategy. There are plenty of ways to get the job done. Good strategy means reading the political landscape and moving deliberately in ways that will prove most effective. As Jefferson put it we should “not be committed absolutely to push the matter to extremities, & yet may be free to push as far as events will render prudent.”
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