Nullification, << `nuhl` uh fuh KAY shuhn, >> is the action of setting aside a law by declaring it null and void. The United States Constitution does not provide any way for a law of Congress to be declared unconstitutional after it has been signed by the President. Some delegates to the Constitutional Convention believed that the courts would naturally assume this authority. But only in 1803, with the case of Marbury v. Madison, did the Supreme Court of the United States flatly assert the right of the courts to pass on the constitutionality of an act of Congress.
The theory that the states, rather than any branch of the federal government, should have the right to nullify (declare unconstitutional) a law of Congress, developed slowly. The Kentucky and Virginia Resolutions of 1798 protested the Alien and Sedition Acts passed by Congress. Many people believed that these acts violated the First Amendment. They wanted the states to join together to declare the acts unconstitutional. But no other state would join in the action. In 1799, the Kentucky legislature stated its belief in the legality of nullification, but merely entered a protest against the Alien and Sedition Acts.
Nullification was next seriously proposed in 1828, when John C. Calhoun prepared a document known as the South Carolina Exposition. Rising industrial interests of the Northeast had persuaded Congress to include in the tariff law of 1828 (the “tariff of abominations”) protective duties that the cotton-growing South disliked. Sentiment against the tariff was strongest in South Carolina. There was even talk of secession.
Calhoun’s motive in recommending nullification was to provide an alternative to secession. He argued that the federal government had no right to judge the constitutionality of its own acts. Calhoun also insisted that the states had given certain powers to Congress, and were alone competent to say whether or not Congress had exceeded its powers. Calhoun’s reasoning was set forth by Senator Robert Y. Hayne in his famous debate with Senator Daniel Webster in 1830. Webster said nullification would break up the Union, and closed with the words: “Liberty and Union, now and forever, one and inseparable!”
In 1832, Congress again passed a protective tariff act. South Carolina passed an ordinance which declared the tariff laws of 1828 and 1832 null and void in that state. It threatened to leave the Union if the federal government tried to enforce the tariff laws anywhere in South Carolina. President Andrew Jackson warned the people that the laws would be enforced. He also took measures to make sure that the tariff would be collected at the important port of Charleston. After Congress passed a law called a force bill to uphold Jackson’s position, it became clear that resistance was unwise. Besides, the Compromise Tariff of 1833, engineered through Congress by Henry Clay, greatly reduced the tariff duties.
Nullification was only one manifestation of the doctrine of states’ rights which, insofar as it meant the supremacy of the states over the nation, was ended by the American Civil War.
