Nullification is the assertion of power or constitutional authority by a state or subnational government that negates or nullifies an act of the national or federal government. Because nullification inherently involves a high level of intergovernmental conflict, those instances where nullification becomes a dominant policy preference typically coincide with allegations of unconstitutionality and conspiratorial theories.
Nullification is a concept that developed in U.S. constitutional thought associated with federalism and states rights. Under the compact theory, the U.S. Constitution was created by the thirteen sovereign states.
The sovereignty of the U.S. states originated with their each having distinct and separate creation and governing structures as British colonies, and that, as equal states coordinately declaring independence from Britain, each state was an equal party to the Articles of Confederation.
The original sovereignty of the states and the interpretation associated with the establishment of the U.S. constitutional system are important foundations from which the concept of nullification developed.
The origin of the U.S. constitutional compact through thirteen sovereign states makes the nature of the new union a point of historical, political, and legal contention. As varied interpretations develop around the nature and meaning of federalism, the almost religious sanction attributed by the interpretive schools of thought contribute to the development of conspiratorial allegations when the federal system reaches periods of crisis.
Federalism is defined as “a form of government in which a union of states recognizes the sovereignty of a central authority while retaining certain residual powers of government”. Federalism describes a system of governing authority apportioned between central and regional governments.
This definition assumes limitations on both national and state “spheres of authority,” and that within these spheres they are supreme and sovereign, but that there are overlapping authorities that they cooperate in, and within these cooperative spheres the national government retains supremacy. The U.S. system of federalism was described by James Madison in The Federalist no. 39 as “neither a national nor a federal Constitution, but a composition of both”.
Because the United States has a “mixed” constitution, there has always been debate over the extent, intent, and direction of national policy in the federal system, and one of the principal sources of political conflict in the United States is between state and national governments. In almost all cases, major conflict translates ultimately into major conspiracy theories.
As public policy conflict increased, the frequency and severity of intergovernmental conflict increased as well. Nullification was a concept developed by those asserting “states rights” over national authority.
Essentially, any act of the national government that a state determined to be beyond the constitutional authority of the national government was declared null and void. The earliest and most powerful assertions of nullification authority were written by Thomas Jefferson in the Kentucky Resolution and James Madison in the Virginia Resolution.
The Alien and Sedition Acts of 1798 were passed by the Federalist Congress under the support and direction of President John Adams, who vigorously enforced them. The national government was given broad police powers to arrest, hold, and dispense with foreign nationals and citizens who criticized the U.S. government. This affront to civil liberties was met with strong opposition, from individuals as well as subnational governments.
The Virginia and Kentucky Resolutions were drafted by their respective state legislatures in 1798 as statements of nullification with regard to the Alien and Sedition Acts. The Kentucky Resolution, drafted by Jefferson, clearly states the nullification view of federal law enacted unconstitutionally as “not law,” being “altogether void, and of no force.”
It further fuels the conspiratorial views of the time by attributing as “obnoxious,” “suspicious” and “tyrannical” the motives and designs of the president. The critics at the time saw Adams as being controlled by the British government, and alleged that the Alien and Sedition Acts were designed to usurp American rights to free speech as a prelude to monarchy.
In 1832, President Andrew Jackson signed into law a new tariff bill that lowered the protective tariff that protected southern economic interests. South Carolina responded by calling a state convention on the matter, which resulted in its declaring the new tariff void within the state.
The work of John C. Calhoun had further developed the Jeffersonian position on constitutional authority, and the political actions of Calhoun, then a senator from South Carolina, only further fueled the legitimacy and popular appeal of his theory.
The only major point of common ground between Jacksonian Democrats and the Whigs during the American Second Party System came in response to this nullification crisis. On this central question of states rights, both Democrats and Whigs agreed that national authority must prevail over the states.
This unholy alliance of bitter enemies fueled speculation that a national conspiracy to destroy southern economic interests was at work among the tariff opponents because the maneuverings of Henry Clay and John C. Calhoun had frustrated a more popularly supported effort by Van Buren to lower the tariff further, and Jackson’s defenders paradoxically included his longtime enemies Daniel Webster, Joseph Story, and John Quincy Adams.
Ultimately, the American Civil War was fought in large part to resolve the issues associated with the underlying constitutional theory that justifies nullification, as it also justifies secession. Nullification has been less utilized since the nineteenth century as the Civil War resolved the question of political authority.
Ronald Reagan has been the most recent political leader to revive the legitimacy of the states rights position. In his 1981 inaugural address, Reagan stated that “All of us need to be reminded that the Federal government did not create the States; the States created the Federal government.”