Critics are quick to point out that the doctrine of nullification has never been legally upheld. In fact, the Supreme Court expressly rejected it – in Ableman v. Booth, 1959, and Cooper v. Aaron, 1958.
They say that the courts have spoken on the subject, and under the Supremacy Clause, federal law is superior to state law. Further, they argue that under Article III of the Constitution, the federal judiciary has the final power to interpret the Constitution. Therefore, the critics conclude, that the power to make final decisions about the constitutionality of federal laws lies with the federal courts, not the states, and the states do not have the power to nullify federal laws but rather, are duty-bound to obey them.
The fatal flaw in their arguments, however, is that they believe that the judiciary, a branch of the same federal government that tends to overstep their constitutional bounds, is somehow above the law and not subject to the remedy of nullification as the other branches are.
Another fatal flaw in their argument is that somehow, the Supremacy Clause is a rubber stamp that labels every federal law, every federal court decision, and every federal action “supreme.” They, and especially the justices of the Supreme Court, refer to the Supremacy Clause as if it were the Midas Touch – a magical power that turns EVERYTHING the federal government does, including by all three branches, to gold. Nothing is farther than the truth. The Supremacy Clause states simply: “This Constitution, and the laws of the United States which shall be made in pursuance thereof; …shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby…”
There is no debate that the Constitution, as originally drafted and defended, and as intended and ratified, designed a government of limited powers. Therefore it follows that only laws passed to legislate for the limited functions listed in the Constitution are supreme. Regarding objects and designs not expressly listed in the Constitution, the Ninth and Tenth Amendment remind us that they are reserved to the People or the States, respectively, and the federal government can claim no such supremacy. The Supremacy Clause states a preemptive doctrine that asserts sovereignty just as equally as the Ninth and Tenth Amendments assert sovereignty.
Hamilton explains federal supremacy in Federalist No. 33
It is said that the laws of the Union are to be the supreme law of the land. But what inference can be drawn from this, or what would they amount to, if they were not to be supreme? It is evident they would amount to nothing. A law, by the very meaning of the term, includes supremacy. It is a rule which those to whom it is prescribed are bound to observe. This results from every political association. If individuals enter into a state of society, the laws of that society must be the supreme regulator of their conduct. If a number of political societies enter into a larger political society, the laws which the latter may enact, pursuant to the powers entrusted to it by its constitution, must necessarily be supreme over those societies, and the individuals of whom they are composed. But it will not follow from this doctrine that acts of the large society which are not pursuant to its constitutional powers, but which are invasions of the residuary authorities of the smaller societies, will become the supreme law of the land. These will be merely acts of usurpation, and will deserve to be treated as such. Hence we perceive that the clause which declares the supremacy of the laws of the Union, like the one we have just before considered, only declares a truth, which flows immediately and necessarily from the institution of a federal government. It will not, I presume, have escaped observation, that it expressly confines this supremacy to laws made pursuant to the Constitution; which I mention merely as an instance of caution in the convention; since that limitation would have been to be understood, though it had not been expressed.
Critics also like to discredit nullification by associating it with the more controversial episodes in our history. A popular claim is that nullification was used to perpetuate slavery because it was embraced by Southern leaders who did not want blacks to take their place as free and equal men in their societies. They especially link nullification to South Carolina’s colorful Senator John C. Calhoun, who was not only a vocal proponent of the doctrine and used it to justify his state’s refusal to recognize the Tariff of Abominations in 1832, but also a strong supporter of slavery and a white supremacist. They like to say the so-called Nullification Crisis of 1832, pitting the South against the North, eventually precipitated the Civil War. They further allege that the Civil War settled the question of nullification.
There are so many flaws in these arguments.
Between 1798 and the beginning of the Civil War in 1861, several states advanced the doctrine of nullification, in many instances, including the Tariff of 1828, the Tariff of 1832, the Fugitive Slave Act of 1850, to resist conscription during the War of 1812 and in the battle against a national bank.
In the late 1820’s, the nation suffered an economic downturn, with South Carolina being hit especially hard. The government enacted high protective tariffs (high tariffs on imports, particularly finished goods). The North, industrial as it was, manufactured finished goods but needed raw materials (such as cotton, sugar, etc) while the South, an agrarian society, purchased almost all finished products from imports. It also made most of its money from its export of cotton, tobacco, and sugar. The tariff, as the South viewed it, harmed their interests, while at the same time providing an enormous benefit to the North. With the higher prices on imported finished goods, it had the effect of “protecting” the products of the North. In other words, the finished goods of the North would be preferred over imports because of the price. The South would be forced to buy products from the North, thus enriching the North. On the other hand, because of the United States’ high protective tariffs, other countries retaliated by imposing high tariffs on American imports, which greatly harmed the South. To compete, the South had to lower her prices. Like a vulture, the Northern industries noticed that Southern cotton, sugar, etc weren’t selling and took advantage of the fact that they could buy her goods at reduced prices. South Carolina was opposed most vehemently to the protective tariffs. South Carolina believed that a “common government” should serve both regions equally and in this case, it was harming the South in order to enrich the North. South Carolina alleged that the tariffs were extremely detrimental to her well-being.
In the summer of 1828, South Carolina state representative Robert Barnwell Rhett appealed to the governor and to his constituents to resist the majority in Congress regarding the high tariff (referred to as the “Tariff of Abominations”). Rhett emphasized the danger of doing nothing:
But if you are doubtful of yourselves – if you are not prepared to follow up your principles wherever they may lead, to their very last consequence – if you love life better than honor,…. prefer ease to perilous liberty and glory, then awake not! Stir not! Impotent resistance will add vengeance to your ruin. Live in smiling peace with your insatiable Oppressors, and die with the noble consolation that your submissive patience will survive triumphant your beggary and despair.
Also in 1828, John Calhoun published his “Exposition and Protest,” although anonymously, in which he discussed nullification. (He was Andrew Jackson’s Vice President at the time and Jackson was strongly opposed to Nullification):
If it be conceded, as it must be by everyone who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department to be exercised), is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights. It is impossible to understand the force of terms, and to deny so plain a conclusion.
In 1832, inspired by Calhoun’s defense of nullification as the rightful remedy to not suffer unconstitutional federal legislation (he strongly supported and promoted the Kentucky and Virginia Resolutions, by Thomas Jefferson and James Madison, respectively), South Carolina decided to use the doctrine to escape the oppression of the tariff. Its position was that nullification could be used by a state to resist a federal law that was not specifically authorized by the U.S. Constitution. South Carolina then assembled a democratically-elected convention and issued an Ordinance of Nullification. This ordinance declared that the federal Tariffs of 1828 and 1832 were unconstitutional and therefore null and void within the sovereign boundaries of South Carolina.
The Ordinance of Nullification read:
Whereas the Congress of the United States by various acts, purporting to be acts laying duties and imposts on foreign imports, but in reality intended for the protection of domestic manufactures and the giving of bounties to classes and individuals engaged in particular employments, at the expense and to the injury and oppression of other classes and individuals, and by wholly exempting from taxation certain foreign commodities, such as are not produced or manufactured in the United States, to afford a pretext for imposing higher and excessive duties on articles similar to those intended to be protected, bath exceeded its just powers under the constitution, which confers on it no authority to afford such protection, and bath violated the true meaning and intent of the constitution, which provides for equality in imposing the burdens of taxation upon the several States and portions of the confederacy: And whereas the said Congress, exceeding its just power to impose taxes and collect revenue for the purpose of effecting and accomplishing the specific objects and purposes which the constitution of the United States authorizes it to effect and accomplish, hath raised and collected unnecessary revenue for objects unauthorized by the constitution.
We, therefore, the people of the State of South Carolina, in convention assembled, do declare and ordain and it is hereby declared and ordained, that the several acts and parts of acts of the Congress of the United States, purporting to be laws for the imposing of duties and imposts on the importation of foreign commodities, and now having actual operation and effect within the United States, and, more especially, an act entitled “An act in alteration of the several acts imposing duties on imports,” approved on the nineteenth day of May, one thousand eight hundred and twenty-eight and also an act entitled “An act to alter and amend the several acts imposing duties on imports,” approved on the fourteenth day of July, one thousand eight hundred and thirty-two, are unauthorized by the constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens; and all promises, contracts, and obligations, made or entered into, or to be made or entered into, with purpose to secure the duties imposed by said acts, and all judicial proceedings which shall be hereafter had in affirmance thereof, are and shall be held utterly null and void.
The Ordinance of Nullification was not received well and soon escalated to what came to be referred to as the Nullification Crisis of 1832. Andrew Jackson was inflamed and was intent on arresting Calhoun and having him hang in Washington DC. He also had Congress pass the Force Bill which authorized the use of military force against any state that resisted the tariff acts. It was feared that South Carolina would secede if pushed, and so, the members of the US Senate and then House came together to work out a solution. In 1833, Senator Henry Clay and Senator Calhoun proposed a compromise bill to resolve the Crisis. The Tariff of 1833 (also known as the Compromise Tariff of 1833), would gradually reduce the rates over a 10-year period to the levels set in the Tariff of 1816 – an average of 20 percent lower. The compromise bill was accepted by South Carolina and passed the US Congress and thus effectively ended the Nullification Crisis. South Carolina got at least partial relief.
As a side note, Abraham Lincoln, who ran on the Republican Platform for president in the election of 1860, was originally a Whig and was still a Whig at heart. He was a true follower of Senator Henry Cabot Lodge. As such, he was a strong supporter of protective tariffs and promised to raise the tariff to the 1828 rate. Is it any wonder why tensions in the South were elevated with the election of Lincoln?