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Jeff Melton
July 5, 2005

Part 1: Nullification Considered

Since the Constitution is a compact among the sovereign states, it is supposed to do the will of those states. The actions of the United States governments legislative branch are limited in scope by Article 1, Section 8 of the United States Constitution. That section of the Constitution lays out the specific powers that were delegated to the federal government by the states (who retain all other powers, as stated in the 10th Amendment).

The question arises, then, of what to do when the federal government is over-stepping its boundaries. What happens when the federal government is acting outside the specific grant of powers, and is acting in a manner inconsistent with the letter and spirit of the sole source of its powers, contained in the Constitutional compact?

It must first be understood that the best defense against federal usurpation is and always has been the states. Thomas Jefferson understood this, and certainly Patrick Henry and the anti-federalists did. The illusion of checks and balances within the federal government itself has shown itself to be completely ineffective. This should be no surprise, however. After all, who would have a group of foxes [ie, Supreme Court...CV] guard their hen house from another group of foxes or wolves? The federal government has consistently shown itself to be most interested in drawing more power to the center, and away from the states and away from the people. The phenomenon has existed since John Adams presidency, although it waxed and waned at different times (Thomas Jefferson, for instance, spent a great deal of his first few months in office reversing what Adams had done). However, since 1865, the federal government has not stopped growing, but offer different solutions on how best to exercise this sovereignty.

Historically, there have been two very specific remedies enlisted by the states to combat the problem of the federal government over-reaching, and usurping more power than it was granted. These two remedies are nullification and secession. Although they were both designed to address the same problem, and have similarities, they are also quite different. Both recognize state sovereignty, but offer different solutions on how best to exercise this sovereignty.

Nullification was first expressed (albeit anonymously) by John C. Calhoun, the brilliant statesman from South Carolina. Mr. Calhoun drew upon the 10th Amendment as his inspiration, and offered this theory in response to a series of tariffs that were growing ever more oppressive to the Southern people. In 1816 and 1824, a series of tariffs were passed by Congress that resulted in the cost of consumer goods in the South being raised as much as fifty percent. In 1828, this matter was made worse by the Tariff of Abominations, which raised the tariff rates even higher. This created a public outcry in Mr. Calhoun's native South Carolina, and across the South. The Southern people had very limited means of production, and relied heavily on imports. Therefore, the prices for products in the South were raised to outrageous levels merely as a means of protectionist policies to help subsidize Northern businesses.

This controversy continued, with the expected verbal warfare in the United States Congress. In 1832, the Tariff of Abominations was modified by a new tariff, but the protectionist system continued, and the tariff rates were still excessive.

Not only were the tariffs oppressive to the Southern people because of the economic burden it presented, but Mr. Calhoun and other Southern statesmen opposed the tariffs because of the way the revenue was being spent. The tariff revenue was being used to subsidize Northern businesses and make Henry Clays domestic improvements namely building roads and bridges in the Northern states.

By means of illustration, the Southern States were paying 85% of the taxes raised by the United States through their tariffs. In the states of North Carolina, South Carolina, Virginia, and Georgia alone, 60% of the entire federal revenue was borne on the shoulders of these states. Although the Northern states were paying only 15% of the tax burden, they were benefiting from it disproportionately. In fact, only 10% of the tax revenue raised by the federal government at that time was being spent in the South. It is no wonder that they were outraged!

In reaction to this problem, John Calhoun offered (anonymously, because he was the Vice-President at the time) the remedy of nullification. Nullification meant that a specific state could refuse to enforce a federal law if it found that that law was unconstitutional.

On November 10, 1832, a Nullification Convention convened in South Carolina and voted 136 to 26 to declare the tariffs null, void, and no law, nor binding upon this state, its officers, or its citizens because it was unconstitutional. In fact, legal penalties were to be imposed on any federal officer attempting to collect the tariff duties.

Conceptually, nullification of a federal law by a state would mean that the law would not be enforced in that state. In the case of the tariff legislation, that would amount to a free trade zone in South Carolina. That was something that the federal government would tolerate no more in 1832 than it would in 1861. As a result, President Jackson sent seven naval vessels and a man of war to Charleston in November 1832 to enforce the tariff and the money it brought to the federal coffers. In December, Jackson issued a proclamation on nullification, declaring it null and (interesting enough) also declaring it and secession illegal. The people of Massachusetts must have been amazed by that, given that they still had a few more threats of secession themselves to come.

Jackson threatened to send an army of 100,000 men to South Carolina to enforce the tariff. In response, South Carolina quickly authorized $200,000 for arms and supplies to defend itself against what would clearly be an unconstitutional invasion.

Ultimately, John Calhoun resigned as vice president over this controversy, and in March 1833, a compromise tariff was passed. Shortly afterwards, the nullification resolution was withdrawn and the problem was resolved at least for the moment.

Although the nullification crisis ended without any long-lasting incident, it should be noted that it did help bring about the end of the Tariff of Abominations, although this took a number of years.

The court itself never specifically ruled on nullification, but it is a remedy that has returned from time to time since then, although not in the formal manner in which it was proposed by Mr. Calhoun and the South Carolina legislature. Many Northern states, for instance, refused to honor the interstate fugitive slave laws, choosing not to return slaves who had escaped into their territory. In 1857, the Supreme Court ruled that the fugitive slave laws had to be upheld in the famous Dred Scott Case, 60 US 393 (1857). This case, written by Chief Justice Taney, struck down the Missouri Compromise on the grounds that Congress could not declare slavery illegal in the territories.

While perhaps not nullification, the concept did re-appear during the 1950s and 1960s the time commonly called the civil rights era. During this time, there were a series of Supreme Court decisions that imposed the will of the federal government on the states. The most famous of these was Brown v Board of Education, 349 US 294 (1955). Brown is famous for its reversal of the separate but equal standard that had existed for a number of years in the schools, and was in fact upheld by the court in the famous Plessy v Ferguson, 163 US 537 (1896).

In Brown, the court determined that segregated schools violated the 14th Amendment (which was fast becoming the courts method of justifying federal supremacy over the states a trademark left down from the Warren era of the court), and it ordered that all schools should be desegregated in a reasonable period of time. This decision was largely ignored by a number of states, both Southern and Northern. These states were practicing a modern version of nullification, choosing not to enforce the United States Supreme Court decision, their position being that it had no authority, and that it was forcing its will on the Southern States. In the 1960s, however, troops were sent in to force this decision on the states. This caused a great deal of conflict, and ultimately the states were integrated. It should be noted that, although the South gets the bad press for segregation, it existed also in Massachusetts and Michigan at the same time.

One could certainly argue that segregation was wrong, or that it needed to be overturned. However, what power did the federal government legitimately have to impose its will on the sovereign states? This question was certainly not sufficiently answered by the court decisions of the time.

Since the civil rights era, however, the federal governments iron hand has always been present, if even impliedly. The states have grown more comfortable in their subservient role, and the people have grown to identify themselves less with their home states and more with the general federal government.

There has been some movement in recent years to retaining more power in the states. In 1996, there was a movement by Colorado and other states to have a 10th Amendment resolution, making it clear that the states did indeed retain the powers not specifically delegated away to the federal government. However, this movement has not sufficiently taken root among the consciousness of the people.

If nullification was used today, it could apply to things such as abortion. The so-called partial birth abortion that has received federal protection (particularly during the Clinton administration) has not been popular in many states, and some have attempted to outlaw the barbaric form of infanticide. Under nullification, a state could choose not to enforce a US Supreme Court decision protecting the practice, abortion, or any number of liberal policies that the people of that state were opposed to, and that indicated a clear break from Constitutional authority. In this case, the objection would be that the judiciary is acting as a legislative body.

Nullification offers a remedy that allows a state to remain in the union of states (and retain the benefits derived wherefrom), but at the same time, protect its citizens and their interests against oppressive laws that violate the rights of the citizens of those states. It is, of course, a less drastic measure than secession, although one that would certainly be just as controversial in modern times even more so than when it was first proposed.

The problem with nullification, however, is that a state is not recognizing a federal law, and this has shown to be a source of great conflict every time it has been utilized. President Jackson threatened to send troops to South Carolina at a time when such a thing had never been considered; the federal government did in fact send troops into the Southern States to enforce the desegregation decision; and the federal government has shown itself to be very pro-active in enforcing gun control laws and other federal rules.

Nullification was not a method favored by President Jefferson Davis, who had a problem with nullifying laws and remaining a part of the federal government. This would be analogous to being a partner in a firm and refusing to honor major rules and/or regulations. Ultimately, this would lead to conflict if the rule/regulation were important enough to the partnership. Or, in the case of the federal government, it will lead to conflict if the federal government is concerned sufficiently about a diminution of its power and standing in relation to the states. This, of course, is not a legitimate concern under the Constitution, where such things are laid out; but it is a very practical concern when the federal government has shown itself very much willing and ready to take on more and more power.

While it seems unlikely that the nullification crisis will resurface currently, with the wave of flag-waving sentiment that has existed since September 11, 2001, it is a concept that is sure to re-assert itself in some form. In Nevada, the governor is refusing to allow nuclear material in his territory, in open opposition to the will of the federal government. Will this ultimately lead to another nullification movement? Only time will tell.


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