State Nullification: A Venerable History

by Kevin Gutzman

EDITOR’S NOTE: Kevin Gutzman will be a featured speaker at Nullify Now! Austin. Get tickets here or by calling 888-71-TICKETS

*******

State nullification of federal policies has a venerable history. Not only is it currently being used by states across the country in opposition to federal policies regarding medical marijuana, Real ID, and Obamacare, and other matters, but its first formulation came from Thomas Jefferson, America’s foremost advocate of liberty, and James Madison, chief author of both the Constitution and the Bill of Rights.

On June 14, 1798, President John Adams signed into law the Alien and Sedition Acts. One of those laws, the Alien Enemies Act, has been uncontroversial, but the others were highly problematic.

The reason was that they purported to empower Adams to expel aliens whom he adjudged dangerous and to ban American citizens from saying anything that tended to bring the government into ill repute. Under that provision, numerous prominent people, including leading Jeffersonian newspaper editors and even a Vermont congressman, were imprisoned for daring to write or speak against the Adams administration.

Worried lest they expose themselves to prosecution leading to fine and/or imprisonment, Vice President Jefferson and his friend James Madison enunciated a clear constitutional vision. The states, they pointed out in their Virginia and Kentucky Resolutions of 1798, created the Federal Government. Since they had created it, they were ultimately responsible for insuring that it did not abuse its powers.

If the Federal Government adopted policies that were unconstitutional and dangerous, Madison and Jefferson said, the states “have the right, and are in duty bound, to interpose” to prevent implementation of the policy. As Jefferson put it, “a nullification is the rightful remedy.”

Note that before a federal policy was to be nullified, it must be unconstitutional and dangerous. In day-to-day matters, the federal judiciary is supposed to be responsible for keeping the Executive and Legislative Branches within the limits of their authority. However, in extreme cases, the states have to step in.

Jefferson’s and Madison’s idea has been employed many times. The most notable, of course, was when numerous northern states nullified the Fugitive Slave Act of 1850. That act, intended to implement the Constitution’s Fugitive Slave Clause, struck many people as unconstitutional and dangerous because it did not provide due process for people said to be escaped slaves; the fear was that free people might be subjected to enslavement.

Kevin R. C. Gutzman, J.D., Ph.D., Associate Professor of History at Western Connecticut State University, is the author of Virginia’s American Revolution: From Dominion to Republic, 1776–1840 and The Politically Incorrect Guide to the Constitution. He is also the co-author, with Thomas E. Woods, Jr., of Who Killed the Constitution? The Federal Government vs. American Liberty from World War I to Barack Obama. His upcoming book, James Madison and the Making of America, will be published by St. Martin’s in 2011.