Nullification and the Union

Nullification and its associated doctrine of interposition are philosophical holdovers from the period when the United States was a Confederation, rather than a federal union. Before 1787, it could be theoretically argued that the requirement for unanimity in most matters that was a feature of the Articles of Confederation illustrated that the States retained a particular sovereignty. US citizens also derived their citizenship from their membership of a State (a situation that legally prevailed until the fourteenth amendment). It followed that if the central government attempted to subvert the Constitution or to act in an ultra vires fashion, a State could ‘nullify’ federal law within its boundaries. This was also a practical proposal in that States were the tax-collecting and law enforcement bodies under the Confederation. If States refused to cooperate with the USA, then US policies could not be enforced. Since States had existed before the Union, and since the Constitution of 1787 did not specifically outlaw the idea of nullification, Jefferson and later Calhoun, amongst others, argued that the doctrine survived. Interposition was a related idea that states could declare federal law inoperable, and, acting as a group, call a constitutional convention, or take joint coordinated action at the level of State governments and through the Senate to change the offending law.

The problem with such a doctrine was that it put States which did not agree with the federal government on a precise collision course and that it led logically to the idea of secession. The federal government created in 1787 was not a Confederate body of states who agreed to pool parts of their sovereignty. It was a government with an explicit Supremacy clause which made clear that federal law, in the event of any dispute, was supreme. The 1787 regime was also able to suspend rights, such as habeas corpus, and it alone was empowered to take foreign policy decisions, down even to the ban of states’ citizens accepting honours. It was the 1787 regime that administered new territories and created new States out of them, and it was that regime that passed amendments not by convention but through its own institutions before the States could affirm or deny them under Article V. In addition, one of the main causes of the creation of the US in its 1787 form was to preclude States from withholding taxes or to put down rebellions based on an anarchic approach to federal power such as the Shays or Whisky rebellions. Those who, like Jefferson, were out of the country or out of the debates about federal power at the time were later to be the strongest critics of such federal power (when they did not wield it) but that does not mean they understood where their criticism would lead. In this, Jefferson should be exempted; by 1825, there is every indication that he regretted developing the idea of nullification in opposition to the Alien and Sedition Acts of 1798, declaring that he thought of national division ‘as a firebell in the night.’

That nullification was a disruptive doctrine without an initial link to slavery is beyond argument. It was argued, for instance, in defence of liberties in the Alien and Sedition Acts, against a war with Canada by the States of New England in 1812, and by the State of Georgia in relation to Native American land rights in 1827-32. In the latter case, which emerged into the Supreme Court in the form of Worcester v Georgia, the Court decided that Georgia was definitively wrong. It is interesting that the central executive went out of its way to ‘talk down’ and negotiate with the States in all these matters. However, when nullification was added to sectionalism and then slavery by John C. Calhoun in the tariff controversy of 1832, the issue metastasized a cancer that had lain dormant in the American constitution since the founding. It lived in the dark area between ideas of propertied liberty, individual freedom, and the validity of slavery. A Tariff threatened to strengthen the federal government, in which New England and the West were apparently on course to overwhelm the South. This was the genesis of Southern fears of enforced abolitionism, which in turn encouraged Southern expansionism and southern belligerence. In this, nullification was a convenient, or perhaps essential, matrix and filter rather than a cause in itself. After all, when the pendulum swung briefly back in the 1850s, following the admission of Texas as a slave state and thirty years of Missouri-Compromise parity, it was ‘free’ state anti-fugitive law supporters who sought to nullify federal laws protecting slave ownership. Nullification provided a vehicle and template, and encouraged thoughts of sovereignty, distinctiveness and secession, It should best be seen as providing a turbo-charger for other disputes.

Nullification as a doctrine for US States that had been created by the Constitution was impeccably wrong. However, an argument can be made that another factor—the incorporation of States that had briefly been republics, such as Vermont, California or Texas—complicated the argument that nullification was completely wrong. A third strand—that it was right for those States which had been in existence before the 1787 regime—was dealt with head-on by Lincoln in his first inaugural, who argued that those States had set aside their capacity to nullify and interpose by joining a perpetual Union with a supremacy clause, and that constitutional amendment was the only proper way to proceed.

It is hard to imagine that nullification could not have emerged as a doctrine from the anti-federalist and Jeffersonian reading of the constitution, but equally hard to argue that it was inevitably predicated on a North-South division. Even secession could be legal, for instance; West Virginia seceded legally from Virginia at the height of the Civil War. The problem was that nullification, when added to territorial expansion, slavery, and sectionalist fears of a strong, urban, and immigrant-based North, encouraged a train of logic which led to the rejection of Madison’s idea of compromise and an isolating determination to oppose the local with the national State. Nullification was thus a corridor with ultimate doors that could encourage those who wanted out of the Union to think that there was a serious and easy path beyond Article V. What it failed to do, and this is its significance, is to understand that it was not the people of a state, but the federal government, which held the keys to all the locks in the corridor.