How can a state do this? Because it is a sovereign. Under our federalist system, each state is considered as a dual sovereign with the federal government. Other views consider the states as the dominant sovereigns, with the federal government having more of a "support" capacity. As Thomas Woods explains: "Nullification is a shield between the people State and an unconstitutional law from the federal government."
The Federal Farmer (penned most likely by Richard Henry Lee) subscribed to the compact theory of federalism, of which Thomas Jefferson and James Madison also subscribed. In fact, it can be argued that this is the basis of the Tenth Amendment. The Federal Farmer explains that the nation was formed through a compact agreed upon by all the states, and that the national government is consequently a creation of the states. Both Thomas Jefferson and James Madison wrote separately to propose that the Constitution be based on this principle. Under the Compact Theory of Federalism, the United States is made up of a voluntary union of States that agreed to cede some of their authority in order to join the union, but that the states did not and could not, ultimately, surrender their sovereign rights. Under this theory, states can determine if the federal government has violated its agreements, including the Constitution, and nullify such violations or even withdraw from the Union (ie, states would be the final judges of whether the national government has overstepped the boundaries of the "compact."). If the states did not have inherent authority, the Federal Farmer reasoned, the Constitution would tear down the sovereign states in favor of a consolidated government, and that this end of the federal system would be destructive of American liberties. Richard Henry Lee was a very important historical figure. He was a delegate to the Continental Congress from Virginia and president of that body in 1774. He later served as President of the United States in the Congress assembled under the Articles of Confederation, and as a US Senator from Virginia (1789-1792) under the new Constitution. It was he who, in 1776, presented the formal request for a Declaration of Independence from Great Britain.
So, the concept of nullification was indeed a founding doctrine. In fact, it got significant attention in the very early years of our newly-created government. In 1798, the federal government passed the Alien & Sedition Acts of 1798. The Alien Acts were essentially not enforced so they posed no concern at the time. [Note however that the Alien Enemies Act is still on the books today and authorizes the president to deport aliens whose home countries are at war with the US. The Alien Friends Act authorized the president to deport resident aliens who were considered "dangerous to the peace and safety of the US.' This particular act expired in 1800]. The Sedition Act, however, posed a serious and grave threat to fundamental liberties. The Act established fines and jail time to persons who write (even personal letters), spoke, uttered, published any false, malicious, or inciting statements against the government, or contributed in any way to them or even caused any such to be made. No writings or utterances were to be made to bring contempt or disrepute upon the President or Congress or its members. John Adams was the president at the time. Thomas Jefferson was the vice president.
Jefferson was outraged. What could be done, he thought? Petitions or protests wouldn't work because they would only subject the protestors to fines and imprisonment under the Sedition Act. He reasoned that a stronger response was needed. The extreme, he fully understood, was secession (which he believed was the absolute right of a people who wanted to abolish a oppressive government; he believed wholeheartedly in the principle and right of self-government). This crisis led Jefferson to propose the concept of interposition and nullification - the duty of states and state governments to stand between the People and the unconstitutional actions of the federal government. He wrote: "The true barriers of our liberty are our State governments." Jefferson claimed that the Sedition Act was a nullity.
Jefferson's concept of nullification states that since the federal government, either as a whole or by any of its branches, is not and cannot be an impartial arbiter of disputes between it and the States, it must be up to each state's own judgment to decide when the Constitution has been violated and how that violation is to be addressed (such as by refusing to abide by it).
In response to the Sedition Act, Jefferson drafted a series of resolutions. Again Jefferson rose to the occasion to protect individual liberty. His resolutions condemned the Alien & Sedition Acts as gross violations of the Constitution and addressed the proper response by the States. He gave a draft of his resolutions to Wilson Nicholas, a member of the Virginia state legislature, who then passed a copy along to his friend John Breckinridge, a member of the Kentucky state legislature. Jefferson's resolutions would become the Virginia Resolutions of 1798 and the Kentucky Resolutions of 1798.
The Kentucky Resolutions state: "Resolved, that the several States composing the United States of America are not united on the principle of unlimited submission to the federal government, but that by a compact titled the 'Constitution for the United States' and of amendments thereto, they constitute a general government for specific purposes - delegated with certain definite powers, reserving to each State the residuary mass of rights to their own self-government; and that whensoever the federal government assumes undelegated powers, its acts are unauthoritative, void, and of no force. That to this compact, each State acceded. The government created by this compact was not made the exclusive or final judge of the extent of powers delegated to itself, since that would have made its discretion, and not the Constitution, the measure of its powers. As in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself what is the proper measure of powers, as well as the proper mode and manner of redress."
The concept of nullification was officially introduced as a proper means of limiting the size and scope of government.
John Breckinridge, who sponsored the resolutions in the Kentucky legislature, argued that when the federal government passed laws that extend beyond its constitutional powers and bounds, the people at the state level (ie, the State legislatures) ought to make a legislative declaration that such laws are unconstitutional and therefore null and void and thereby protect their citizens from their operation. In other words, it is the States' duty to protect the People and their rights from an overreach of power by the federal government.
It was James Madison who ultimately wrote the Virginia Resolutions and in it he asserted that whenever the federal government exceeds its constitutional limits and begins to oppress the citizens of a state, that state's legislature is duty bound to 'interpose' its power to prevent the federal government from victimizing its people.
The Virginia Resolutions of 1798 state that the Virginia Assembly views the powers of the federal government "as resulting from the compact, to which the States are parties, as limited by the plain sense and intention of the instrument constituting the compact; as no further valid than they are authorized by the grants enumerated in that compact, and that in case of a deliberate, palpable, and dangerous exercise of other powers not granted by that compact, the States, who are parties thereto, not only have the right, but are duty-bound, to interpose to arrest the progress of the evil, and to maintain within their respective limits the authorities, rights, and liberties pertaining to them."
Because of the wording of the Kentucky Resolutions and the Virginia Resolutions, we use the terms "nullification" and/or "interposition" to refer to state action that makes a determination that a federal law exceeds constitutional bounds and therefore it is not enforceable as against the people. The terms are slightly different but they essentially mean the same thing (with some minor differences).
Thomas Jefferson, 3rd President of the United States of America
The principle of nullification is essential to the maintenance of our federal republic. According to Jefferson, perhaps our most learned and well-read Founder, the States must stand firm against the federal government when it attempts to enlarge its powers, either by forced or activist constructions of the Constitution or by federal action that is not otherwise authorized by our founding compact. Nullification is well-supported by the compact theory of government (by all accounts, the theory upon which our government was established under the Constitution), by the concept of federalism that provides the greatest "check and balance" on the power of government, and by the very words of the Declaration of Independence which establishes the right of self-governance as a fundamental human right.
Nullification was not only a principle, but it was the force behind South Carolina's attempt to curb the power of the federal government in 1832. This would become known as the Nullification Crisis. History has gone to extensive efforts to erase the doctrine of nullification from the books and from meaningful political discussions. It has gone through extensive efforts to portray South Carolina in a bad light and as an agitator for its part in trying to exert sovereign influence over the conduct of the US Congress and the executive and in understanding this, we can understand why the South was so easily vilified for its decision to secede from the Union.
In 1824, a high protective tariff was proposed. The purpose was to protect industry in the North which were being driven out of business by low-priced imported goods (by putting a tax on them). On May 19, 1828, it was passed by the US Congress. It came to be labeled the "Tariff of Abominations" by the Southern states because of the negative effects it had on the Southern economy. The South was harmed directly by having to pay higher prices on goods the region did not produce, and indirectly because reducing the exportation of British goods to the US made it difficult for the British to pay for the cotton they imported from the South. The South responded by lowering the price on their products, cotton in particular. The North took advantage of this and bought the cotton at the lower value for their manufacturing looms. (The South in fact suspected the tariff was put in place for this very purpose - to benefit Northern industry). It also harmed the South by reducing the demand for raw cotton abroad. Because the South was an agricultural society, Southerners relied heavily on sales in the world market for their produce so that the protective tariffs did not offer them any service (only a detriment). All in all, the South suffered most of the losses from the tariff policy and the North reaped most of the gains and the South accused the government of not being concerned with Southern interests.
At the time, the South was impoverished and declining in prosperity while the North was becoming wealthy and very prosperous. Historians say that the trend began after the Revolutionary War; they say that the South's golden era had peaked and was in decline. The South believed they were impoverished to enrich the North. The North, on the other hand, blamed the decline on the South's inability to modernize and industrialize. The southern states claimed that their economy was suffering because of the intentional conduct of the federal government, which it accused of being pro-North and anti-South. They claimed that the double action on the part of the government of levying revenue from the industry of one section of the Union (the South) and spending it on the industry of another section of the Union (the North) was to blame, we well as the protective tariffs.
During one session of Congress in 1829, Representative Daniel Webster of Massachusetts happened to criticize slavery during one House session. He spoke of the repressing effects of slavery upon the progress and prosperity of a state. He pointed to Ohio and Kentucky, which are neighbors, as an example of a stark contrast, suggesting that Ohio was more prosperous because it was not a slave state. Representative Robert Hayne of South Carolina took offense to the remarks and told Mr. Webster that the New England states, and the Free States in general, should keep their opinions to themselves and that the matter was certainly none of their business. Mr. Hayne uttered the sentiments of John C. Calhoun (former US Senator from SC, but serving as Vice President at the time under Andrew Jackson), who was a proponent of the doctrine of nullification. Hayne declared that it is the right and the duty of a state to decide upon the constitutionality of a federal law and refuse to obey it if that state determines it to be unconstitutional. This is, to declare it null and void, and without force of law. Unenforceable. When Mr. Webster retaliated by calling attention to the public meetings taking place all over South Carolina to openly oppose the tariff laws, Mr. Hayes re-emphasized the right of state nullification. He said that allegiance was to the State and only obedience was required to the National government. He would stand with what he considered his legitimate sovereign - the state of South Carolina. He followed that bold utterance with the theme - "Liberty first and the Union afterwards!"
Speaking from the House floor, Rep. Webster accused Rep. Hayes of plain defiance to the US Constitution and blasted the doctrine of nullification. He ended his speech by exclaiming: "Liberty and Union, now and forever, one and inseparable!"
On April 13, 1830, there was a dinner party at Jesse Brown's Indian Queen Hotel in Washington DC to honor the birthday of Thomas Jefferson. President Andrew Jackson was present and so was his Vice- President, John Calhoun, as well as Martin Van Buren and others. The purpose for the party soon became apparent. The event would mark the official inauguration of the doctrine of nullification, as put forth by Jefferson and memorialized in The Kentucky Legislature (Kentucky Resolves) in 1798. At the close of the meeting, Calhoun offered a toast: "The Union, next to our Liberty, most dear.... may we remember that it can only be preserved by respecting the rights of the States and by distributing equally the benefit and burden of the Union."
In that toast was presented the issue that liberty precedes the Union. "Liberty before Union." Supreme state sovereignty and the right of disunion. In fact, Calhoun wrote an essay entitled, "An Exposition and Protest," which he published anonymously. The essay argued that since the federal Constitution was a compact between the states, the states had the ability to declare laws unconstitutional. If a state did this, Calhoun argued, then the proper course of action was for the federal government to reconsider the law. Under Calhoun's plan, a nullified law would have to be re-approved by a two-thirds vote in Congress and a three-fourths vote in the state legislatures, then the nullifying state would have the option of acquiescing or seceding.
Andrew Jackson, a Democrat, clearly did not support nullification. After that dinner party and that memorable toast, he kept a watchful eye on his vice president. Going forward, he viewed him with great suspicion. For it was no secret that there was a party in the country intent on subordinating the government to the States and at the time, the greatest voice to that position was in South Carolina. Note that soon after the dinner party, in an attempt to distance itself from the doctrine of nullification, the Virginia state legislature passed resolves intended to wipe from Jefferson's "fair fame" the "stigma" of nullification that Calhoun was attempting to promote. But nullification continued to become more popular in South Carolina, to the point that the state even began talking about secession. But the state was not yet moved to action.
In 1832, Congress passed another tariff which was also protectionist in nature and also harmful to the South's interests. Although Calhoun was vice president at the time, he could not prevent Andrew Jackson from signing the bill into law. But when the Democratic Party replaced Calhoun with Martin Van Buren as the vice-presidential candidate for the 1832 election (because of the "difference in opinion" between Calhoun and Jackson), Calhoun felt that he had nothing to lose by challenging the law. Calhoun then resigned his position as vice president.
In November 1832, Andrew Jackson was re-elected. Upon learning of the election results, a convention of the delegates of the people of South Carolina was called, with Mr. Hayes as its president, and at its conclusion was put forth an Ordinance of Nullification. The exact title read: "An Ordinance to Nullify Certain Acts of Congress of the United States Purporting to be Laws Laying Duties and Imposts on the Importation of Foreign Commodities." After the convention convened, the state legislature elected Hayes as Governor of the commonwealth. He resigned his Senate seat to assume the position. Calhoun was selected to replace Haynes. The Ordinance of Nullification forbade all authorities (state and federal) within the borders of South Carolina to enforce the payment of duties imposed by the tariff laws and stated that no case based on law or equity, decided in the courts of South Carolina and touching on the authority of the Ordinance or the validity of the acts of the legislature for giving effect to it, would be permitted to be appealed to the Supreme Court of the United States. The exact words of the Ordinance read:
"And we, the people of South Carolina, to the end that it may be fully understood by the Government of the United States, and the people of the co-States, that we are determined to maintain this, our Ordinance and Declaration, at every hazard, Do further Declare that we will not submit to the application of force, on the part of the Federal Government, to reduce this State to obedience; but that we will consider the passage by Congress, of any act... to coerce the State, shut up her ports, destroy or harass her commerce, or to enforce the acts hereby declared null and void, otherwise than through the civil tribunals of the country, as inconsistent with the longer continuance of South Carolina in the Union: and that the people of this state will thenceforth hold themselves absolved from all further obligation to maintain or preserve their political connection with the people of the other States, and will forthwith proceed to organize a separate Government, and do all other acts and things which sovereign and independent States may of right do.... "
