The Founders on Nullification
In November 1798, Thomas Jefferson and James Madison began writing what became known as the Virginia and Kentucky Resolutions. These argued that states had the right to nullify unconstitutional federal laws. The arguments behind these resolutions are still invoked today.
After having freed themselves from the British monarchy, the American founders believed that the best way to preserve individual freedom was to limit and decentralize the new national government. At the Constitutional Convention of 1787, most delegates agreed that the federal government should not have the exclusive authority to interpret the new Constitution because it would routinely interpret the document in its own favor, thus expanding and centralizing power over time. The states had to have redress against federal attempts to consolidate power.
The Alien and Sedition Acts
The federal power grab that most state delegates feared was realized in 1798 with the passage of the Alien and Sedition Acts. These laws limited the rights of foreigners and curtailed political opposition by prohibiting government criticism.
The acts were a blatant violation of the First Amendment guaranteeing freedom of speech and the press. Since the Federalists controlled the government, the opposition Republicans were targeted for prosecution under the new laws; at least 21 Republican newspaper editors were arrested and their papers were suppressed. A man expressing the fond wish that the presidential saluting cannon would “hit (President John) Adams in the ass” was fined $100. Many Republicans, including Vice President Thomas Jefferson and James Madison, feared that government officials were tampering with their mail.
This marked the first U.S. crisis regarding civil liberties, and they prompted widespread outrage. In response, Jefferson and Madison wrote protests arguing that the Alien and Sedition Acts were not only unconstitutional, but that they should not be enforced by state governments. This marked the first application of states’ rights in U.S. history.
The Resolutions
Thomas Jefferson wrote the Kentucky Resolutions in 1798, which stated that the Kentucky state legislature should nullify the Alien and Sedition Acts. James Madison followed a month later with the Virginia Resolutions, urging the Virginia legislature to do the same.
Jefferson asserted that not only did the Alien and Sedition Acts obviously violate the First Amendment, but they also violated the Tenth Amendment, which to Jefferson was the foundation on which the entire Constitution was based. (The Tenth Amendment delegates all powers not specifically given to the federal government to the states and the people.) Jefferson wrote that states did not authorize the federal government to enact laws infringing on constitutional freedoms. Thus, the Alien and Sedition Acts violated a state prerogative. To remedy this, Jefferson argued that states had not just the right but also the duty to nullify unjust federal laws by refusing to enforce them within their borders.
The Virginia and Kentucky Resolutions introduced the theory of “interposition,” or the right of state citizens to decide for themselves, through their local political representatives, whether or not a federal law was constitutional. The argument was based on the fact that the states existed before the federal government, and the states had voluntarily agreed to form a federal government to represent state interests. Because of this, states had the right to review federal laws and determine whether or not to enforce them.
The resolutions supported the “compact” theory of government, under which the federal union of states is a mutual agreement, and that powers not transferred to the federal government must be retained by the states under the Tenth Amendment. While Federalists argued that only federal courts could decide whether or not a federal law was constitutional, Jefferson and Madison argued that states had the power to decide on federal laws. And if a state decides that a federal law is unjust, the state has the right to nullify that law.
While there is no provision in the Constitution that authorizes nullification, Jefferson and Madison argued that no one side in a “compact” can have the exclusive right of interpreting its terms. This was especially true in the case of the federal compact because, as John C. Calhoun later contended, the federal government was not a party to the compact, since it was created by the joint action of the states.
Nullifying Federal Laws
Despite the resolutions urging them to take action, the state legislatures in Virginia and Kentucky did not nullify the Alien and Sedition Acts. Instead, the laws quietly expired in 1801. But over the years, states invoked their right to nullify federal laws on several occasions.
In the 1810s and 1820s, several states levied taxes on the national Bank of the United States, arguing that sovereign states had the right to tax federal institutions within their boundaries. Although the Supreme Court ruled such taxation unconstitutional, many have contested that states should not be bound by decisions from federal judges who will almost always vote to enhance federal power.
In 1832, South Carolina nullified a federal tariff law and threatened to secede from the Union. President Andrew Jackson countered by threatening to lead a federal army into the state. A compromise was finally reached between federal and state officials in 1833, and the crisis was temporarily averted.
Historians generally associate nullification with the South, but in the 1850s, several northern states nullified the Fugitive Slave Act, directly citing the Virginia and Kentucky Resolutions as justification. The North invoked nullification and states’ rights most effectively prior to the Civil War by refusing to enforce federal fugitive slave laws. Contrary to most historical accounts, when the war began in 1861, it was prompted not by southern states nullifying federal laws, but by southerners protesting the fact that northern states were nullifying federal laws.
Critics of nullification point to the fact that it has been used to suppress civil liberties. In the 1950s and 1960s, many southern states invoked the principles of states’ rights by resisting federal attempts to provide civil and voting rights to blacks. This sparked the Civil Rights Movement, and despite southern attempts to suppress the political voice of blacks, the right to life, liberty, and property under natural law trumped states’ rights. This followed the model of power the founders intended when drafting the Constitution—first individual liberty under natural law, then local government, then state government, and finally federal government.
Applying the Resolutions Today
The main point of the Virginia and Kentucky Resolutions was that a national government allowed to determine the scope of its own power will almost always decide to enhance its power at the expense of the people. And the founders knew that as government grows, liberty shrinks. States asserting their right to nullify federal laws under their Tenth Amendment power could go a long way in limiting the power of the federal government, which would enhance individual liberty.
A nullification movement has recently taken shape in the U.S. One of the movement’s primary targets is the Health Care Reform Act of 2010. Many state legislatures have passed resolutions refusing to enforce the law within their borders. This is a direct application of the Virginia and Kentucky Resolutions written 212 years ago. Thus, the “principles of ‘98″ meant to keep the power of the federal government in check and guarantee individual freedom are alive and well today.
