Nullification (U.S. Constitution)

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Nullification is a legal theory that a U.S. State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional. The theory is based on a view that the sovereign States formed the Union, and as creators of the compact hold final authority regarding the limits of the power of the central government. Under this, the compact theory, the States and not the Federal Bench are the ultimate interpreters of the extent of the national Government's power. A more extreme assertion of state sovereignty than nullification is the related action of secession, by which a state terminates its political affiliation with the Union.

The basis for the doctrine of nullification can be found in the separate identities of England's North American colonies, and the fact that the name "United States" originally suggested, and perhaps explicitly acknowledged, the sovereignty of each former colony as an independent state under international law. This argument is further strengthened by the fact that the first article of the 1783 Teaty of Paris acknowledged the former thirteen colonies to be "free sovereign and independent states." The Articles of Confederation also adopted this idea in its second article, which declared that "Each state retains its sovereignty, freedom, and independence, and every power, jurisdiction, and right, which is not by this Confederation expressly delegated to the United States, in Congress assembled." Significantly, however, the original United States Constitution did not include such a provision. While the Tenth Amendment later added somewhat similar phrasing--"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"--this wording does not explicitly acknowledge the sovereignty of the states. The lack of the word "expressly," furthermore, permitted courts to find an implied as well as an express delegation of powers to Congress, potentially a far greater grant of congressional power than under the Articles of Confederation, and consequently a much greater restriction of state power.

Nevertheless, states began implicitly to assert the right of nullification soon after the Constitution's adoption. Usually this took place when a state or a regional grouping of states that lacked a majority in Congress emphasized state sovereignty as a means of limiting the power of the federal government (and thus the opposing congressional majority.) One of the earliest and most famous examples is to be found in the Kentucky and Virginia Resolutions, a protest against the Alien and Sedition Acts. In these resolutions, authors Thomas Jefferson and James Madison argued that the states are the ultimate interpreters of the Constitution and can "interpose" to protect state citizens from the operation of unconstitutional national laws.

While some interests in northern states occasionally considered the possibility of secession after Jefferson's party gained control of the federal government in the years after 1801, the idea of nullification increasingly became associated with the southern states as a means of protecting the institution of slavery. The most famous statement of the theory of nullification, authored by John C. Calhoun, appeared in the South Carolina Exposition and Protest of 1828. Four years later, during the Nullification Crisis, South Carolina undertook to nullify a federal tariff law and a subsequent federal bill authorizing the use of force against the state.

Northern states, however, also employed the theory of nullification to attempt to block enforcement of the pro-slavery federal Fugitive Slave Acts of 1793 and 1850. The most famous examples of this centered around northern states' personal liberty laws. The Supreme Court dealt with the validity of these laws, and thus the question of nullification, in the 1842 case of Prigg v. Pennsylvania. The Supreme Court also dealt with an attempted nullification of the federal law by a state court in the 1859 case of Ableman v. Booth.

Shortly after the Ableman decision, most of the slaveholding states seceded from the Union in reaction to the election of Abraham Lincoln. The resulting defeat of the Confederate States of America effectively spelled the end of the idea of secession and greatly weakened that of nullification. Nullification, however, did resurface in a somewhat more muted form decades later during the Civil Rights movement as federal courts and later the federal Congress acted to eradicate state-enacted de jure segregation.