The conflict between states and the US federal government is nothing new

  • Themes: America

A controversial legal theory known as 'nullification', as old as the US constitution itself, lies at the heart of an ongoing battle between Texas and the federal government over the defence of America's southern border.

A debate on protectionist tariffs that would lead to the South Carolina nullification crisis in 1833.
A debate on protectionist tariffs that would lead to the South Carolina nullification crisis in 1833. Credit: Everett Collection Inc / Alamy Stock Photo

On 22 January, the Supreme Court ordered Texas Governor Greg Abbott to allow federal officials to remove the razor-wire barrier recently erected on Texas’ southern border with Mexico. Two days later, the governor released a statement, declaring that ‘The federal government has broken the compact between the United States and the States’, accusing President Biden of violating the ‘invasion clause’ of the constitution and instructing the replacement of any barriers removed by federal agents. The federal government, Abbott argued, had broken its compact with the states, upon whom it now fell to ensure the correct enforcement of the constitution. Though extreme, Abbott’s course of action is not unique in American history, deriving its force from a controversial legal theory as old as the constitution itself, known commonly as ‘nullification’.

The idea that the states have the right to annul unconstitutional federal laws, executive orders, or judicial rulings has its origins in the early federal period, when the relationship between the states and the federal government was still unclear, and the threat of interstate war loomed. While Article VI of the constitution, now known as the ‘Supremacy Clause’, established the supremacy of the federal constitution over state laws, what this meant for the relationship between federal and state authority was not entirely clear. Since the states were the original parties to the constitution as sovereign entities, many defenders of the states’ rights argued that the constitution should be seen as a ‘compact’, of which the states were members, and which they could leave or amend at any time and not a ‘contract’ by which they had submitted to a superior authority.

This theory was first tested in the early days of the American republic. In 1798, the Federalist-dominated Congress passed two acts known as the ‘Alien and Sedition Acts’ at the behest of President John Adams, which criminalised criticism of the government for the duration of the ‘Quasi-War’ with France. The two acts were widely seen as an attack on the liberties guaranteed by the constitution aimed squarely at silencing the supporters of Adams’ main political rival, the francophile vice president, Thomas Jefferson.

To Jefferson’s supporters, these acts were not only an outrage but manifestly unconstitutional. However, redress from the Federalist-dominated Supreme Court appeared unlikely. Instead, Jefferson and James Madison devised a new strategy to oppose unconstitutional laws, which Madison referred to as the theory of ‘interposition’ and which the two men explained in resolutions they wrote for the Jeffersonian-controlled Kentucky and Virginia legislatures in 1798.

The theory of interposition held that, as Madison explained in the Virginia Resolution, ‘in case of a deliberate, palpable, and dangerous exercise of other powers, not granted by the said compact’ the states had a right to ‘interpose’ themselves between the constitution and the federal government and to oppose unconstitutional federal actions as a collective.

As it turned out, the specific controversy over the Alien and Sedition Acts was not long-lasting. Two years after their passage, Jefferson would defeat Adams in the presidential election of 1800 and the issue dropped out of public consciousness. But Jefferson and Madison’s arguments would live on and the threat of nullification by Kentucky and Virginia laid the groundwork for subsequent defenders of nullification.

In the period after 1800, Virginia would again defy the federal government, expressing its objection to the exercise of judicial review by the Supreme Court in 1813, while Georgia attempted to nullify federal attempts to prevent its state government from expelling the Cherokee people from the state’s territory in 1832. By this stage, the federal courts had found nullification unconstitutional in the case of United States v. Peters (1809), but for adherents of the compact theory of the constitution, the courts had never possessed this kind of authority anyway.

The most serious crisis of the state-federal relationship was yet to come. In the same year as Georgia’s rebuke of the Supreme Court, South Carolina triggered a bitter constitutional dispute now known as the ‘Nullification Crisis’ over the passage of a series of new tariffs, which they regarded as unconstitutional.

In 1828, the US Congress passed a new tariff bill colloquially referred to as the ‘Tariff of Abominations’, which levied tariffs of as much as 45 per cent on certain imported raw materials and 38 per cent on manufactured goods. Although the tariff applied universally, it was widely believed to favour northern industrial interests at the South’s expense. And while the tariff’s unpopularity swept Andrew Jackson and the Democratic Party into office in the elections of 1828, with strong support from the South, once in office Jackson effected only a modest reduction in tariffs.

The South was outraged. South Carolina, which had already threatened to nullify the Tariff of 1828, now declared Jackson’s tariff null and void. In doing so, however, they moved far beyond Madisonian interposition. Indeed, the Nullification Crisis stimulated the development of the most radical, and sophisticated, argument yet produced for the states’ rights to nullify federal laws, written by Jackson’s vice president, John C. Calhoun. For Calhoun, a former defender of national power turned chief ideologue of the Compact Theory, it was the sine qua non of the American federal system that the states retained the right to nullify certain acts of the federal government.

As Calhoun later explained in his posthumously published Discourse on the Constitution and Government of the United States (1851), since it was the states which had established the union, they were, by necessity, a higher authority than the federal government, to whom they had merely granted a share of their sovereignty without alienating it forever. It followed from this, he argued that to make the federal government ‘not only [the] judge of the extent of its own powers, but also that of its co-ordinate [the states]… [would] not only [be] to destroy the equality between them, but… to raise one from an equal to a superior’.

For the states to survive as independent entities, they needed to possess the right to enforce the compact to which they had agreed and to rebuke, negate, and nullify any actions taken based on that compact which they felt defied it. In extremis, he maintained, this could even justifiably lead to secession.

Although, as Senator Daniel Webster argued, Calhoun’s claims rested on an egregious misreading of the constitution, which ignored the clear supremacy granted to federal over state authorities, South Carolina followed Calhoun’s lead and promptly declared the Tariff of 1832 unconstitutional and null and void.

While Jackson had tacitly supported nullification in Georgia, he did not extend the same support to South Carolina, and in March 1833 he secured the passage of the ‘Force Bill’ by Congress, which empowered the federal government to use military force to compel South Carolina’s obedience to the law. Perhaps not without a sense of irony, the South Carolina legislature promptly responded by passing legislation nullifying the use of force to compel its compliance.

In the end, war was avoided, but only thanks to a congressionally orchestrated compromise, which reduced tariffs to a mutually acceptable level. And if the Nullification Crisis had not led to civil war, the animosities that it engendered would fester for three decades until the deluge finally came.

This was not the end for the doctrine of nullification: in the mid-19th century, several New England states attempted to nullify laws designed to allow slave owners to recover escaped slaves, while a century later ten states attempted to nullify the Supreme Court’s decision to end school segregation in Brown v. Board of Education (1954). Governor Abbott’s attack on federal power should be understood in the context of this long and peculiar constitutional history.

Hyperbolic comparisons between the crisis at the Texan border and the Civil War, or intimations of a coming ‘national divorce’, are premature if not entirely unwarranted, but Texas’ move to nullification is nonetheless symptomatic of the enduring fragility of what the Federalist Papers described as the United States’ mixed ‘federal and national’ constitution. Unless faith in national authority can be restored, Abbott is unlikely to be the last state governor to dare the federal government to match its words with action.


Angus Brown