The Authority To Nullify: States' Power Over Federal Laws

Nullification is a constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. The concept has been controversial since its inception in early American history. The federal courts have rejected the view that states hold the power to nullify federal laws, citing the Supremacy Clause of Article VI, which establishes the Constitution and federal laws as the supreme law of the land. Despite this, there have been several notable instances of states attempting to nullify federal laws, including Kentucky's challenge to the Alien and Sedition Acts in 1798, South Carolina's attempt to nullify two federal tariff laws in 1832, and Arkansas' effort to nullify Brown v. The Supreme Court has also played a role in rejecting state attempts at nullification, such as in the case of United States v. and Georgia's attempt to nullify federal treaties with the Cherokees.

The Supremacy Clause

The clause has been invoked in several significant cases. For example, in Martin v. Hunter's Lessee (1816) and Cohens v. Virginia (1821), the Supreme Court asserted its power to review state court decisions involving federal law and the Constitution. In McCulloch v. Maryland (1819), the Court reviewed a state tax on a federally incorporated bank, further establishing federal supremacy.

The Kentucky and Virginia Resolutions of 1798

The Kentucky Resolutions, written by Jefferson, asserted that the states formed the Constitution as a compact, delegating certain powers to the federal government and reserving all other powers for the states. It stated that when the federal government exceeded its powers, each state had the right to nullify those laws. The 1798 resolution declared:

> [T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.

The Virginia Resolutions, written by Madison, took a more moderate approach, opting for the right of "interposition", which meant announcing the laws' unconstitutionality to the public. Madison's resolution stated that Congress, by enacting the Alien and Sedition Acts, was exercising a power not delegated by the Constitution and thus, the laws were null and void.

The Kentucky and Virginia Resolutions were passed by their respective state legislatures and became known as the "Principles of '98". They were the earliest assertion of the theories of nullification and interposition and are considered the foundational documents of these theories. However, it is important to note that the federal courts have consistently rejected the idea that states have the power to nullify federal laws, holding that the Constitution was established directly by the people and that federal laws are superior to state laws.

The Alien and Sedition Acts

The Acts were passed in preparation for an anticipated war with France, tightening restrictions on foreign-born Americans and limiting criticism of the government. The Federalist Party, which advocated for a strong central government, believed that Democratic-Republican criticism of Federalist policies was disloyal and feared that non-citizens living in the United States would sympathize with the French during a war. The Acts outraged Thomas Jefferson, Adams's vice president and political rival, who responded by anonymously drafting the Kentucky Resolutions, declaring the Alien and Sedition Acts unconstitutional and "altogether void and of no force" in the state of Kentucky. James Madison anonymously drafted a similar series of resolutions for Virginia, asserting the principle of states' rights and declaring the acts unconstitutional. These resolutions introduced the concept of nullification, wherein states could refuse to enforce federal laws they deemed unconstitutional.

The Nullification Crisis of the 1830s

The crisis began in 1832 when South Carolina declared the federal Tariffs of 1828 and 1832, also known as the "Tariff of Abominations," null and void within the state. These tariffs were highly controversial, as they were seen by many in the South as unfairly burdening the Southern agrarian states that imported most manufactured goods. When President Andrew Jackson failed to address their concerns, South Carolina threatened to nullify the tariffs. This was not the first time a state had attempted nullification; in 1798, Kentucky had tried to nullify the Alien and Sedition Acts, and in 1828, South Carolina had made faint threats of nullification.

The crisis escalated when South Carolina initiated military preparations to resist federal enforcement, leading Congress to pass the Force Bill, authorizing the use of military force against the state. However, on March 2, 1833, Congress also passed a negotiated tariff, the Compromise Tariff of 1833, which satisfied South Carolina. As a result, South Carolina rescinded its Ordinance of Nullification, and the crisis was averted.

The Nullification Crisis had a significant impact on the country, highlighting the tensions between state and federal authority and the controversial nature of nullification. It also affected President Jackson's relationship with Vice President John C. Calhoun, a staunch supporter of states' rights and nullification. Jackson, while generally in favour of states' rights, saw nullification as a threat to the Union, believing that federal laws had greater authority than those of individual states. He forcefully denounced nullification, stating that he would "rather die in the last ditch than see the union dismantled."

The crisis also had long-lasting repercussions, influencing President Abraham Lincoln as he faced the Civil War three decades later. It brought to the forefront the issue of state sovereignty and the role of the federal government, setting the stage for the debate over the expansion of slavery and the power of the Slave Power in the 1850s.

State rejection of federal court decisions

The concept of nullification is a constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional. This theory has been controversial since its inception in early American history.

The federal courts have rejected the view that states have the power to nullify federal laws, holding that the Constitution was established directly by the people, and thus, the federal government is superior to the states in certain ways. The Supremacy Clause of Article VI further reinforces this by stating that the Constitution and federal laws are "the supreme law of the land," taking precedence over any contrary state laws or constitutions.

However, states have occasionally attempted to reject or nullify federal court decisions. For example, in 2003, the Arizona Supreme Court refused to follow a decision of the U.S. Supreme Court, and in 2006, Michigan voters approved a ballot initiative to prevent state courts from adhering to a ruling of the U.S. Supreme Court. These instances are not considered nefarious as they fall within the system of federalism, where state law can supplement or coexist with federal law without complete preemption.

Historically, there have been three prominent attempts by states to nullify federal laws or decisions. Firstly, in 1798, Kentucky sought to nullify the Alien and Sedition Acts, with Thomas Jefferson anonymously drafting the Kentucky Resolutions, declaring these acts unconstitutional and void in the state. Secondly, in 1832, South Carolina attempted to nullify two federal tariff laws, arguing that states could "veto" federal acts that exceeded the federal government's powers. Lastly, Arkansas made an attempt to nullify a federal court decision, although the specifics are not mentioned.

In conclusion, while states do not have the power to nullify federal laws or court decisions according to the federal courts' interpretation of the Constitution, states have occasionally rejected or attempted to nullify them, citing their own interpretations of state rights and the balance of power between state and federal authorities.

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