What Is Nullification? Definition and Examples

Nullification is a legal theory in United States constitutional history held that the states have the right to declare null and void any federal law that they deem to be unconstitutional under the United States Constitution. Considered an extreme application of states’ rights, the theory of nullification has have never upheld by the U.S. federal courts.

Nullification Doctrine 

The doctrine of nullification expresses the theory that the United States—and thus the federal government—were created through a “compact” agreed upon by all of the states, and that as creators of the government, the states retain the ultimate power to determine the limits of that government’s power. According to this compact theory, the states rather than the federal courts, including the U.S. Supreme Court, are the ultimate interpreters of the extent of the powers of the federal government. In this manner, the nullification doctrine is closely related to the idea of interposition—the theory that each state has the right, indeed the duty, to “interpose” itself when the federal government enacts laws that the state considers to be unconstitutional.

However, the nullification doctrine has repeatedly been rejected by the courts at the state and federal levels, including the U.S. Supreme Court. The courts base their rejection of the nullification doctrine on the Supremacy Clause of the Constitution, which declares federal law superior to state law, and on Article III of the Constitution, giving the federal judiciary the ultimate and exclusive power to interpret the Constitution. According to the courts, therefore, the states have no power to nullify federal laws.

History and Origins 

Always controversial, the theory of nullification first appeared in U.S. political debates as early as 1798 when anti-federalist Vice President Thomas Jefferson and “Father of the Constitution” James Madison secretly wrote the Kentucky and Virginia Resolutions. In these resolutions, the Kentucky and Virginia legislatures argued that the federal Alien and Sedition Acts were unconstitutional in the extent to which they restricted the freedom of speech and freedom of the press rights of the First Amendment.

The Kentucky and Virginia Resolutions further argued that the states had not only the right but the duty to declare unconstitutional those acts of Congress that the Constitution did not expressly authorize. In doing so, they characteristically argued for states’ rights and strict and a strict originalist application of the Constitution.

These early attempts at nullification would form the basis for key disagreements in the 1800s that led to the Civil War of 1861-1865.

Today, nullification is largely considered a relic of America’s post-Civil War Reconstruction era. Recently, however, several states have enacted or considered bills asserting a state’s right to judge federal laws unconstitutional and block their implementation within the state. Federal laws commonly targeted for nullification today include health care regulation, firearms law, abortion, and birthright citizenship.

In 2010, for example, Utah enacted the “State-made Firearms Protection Act,” a law that nullifies federal firearms law as they applied to all firearms “manufactured in the state for use within the state.” Similar firearms law nullification legislation has since passed in Idaho, Montana, Wyoming, Arizona, Tennessee, and Alaska. 

In February 2011, the Idaho House of Representatives passed House Bill 117, “An Act Relating to State Sovereignty and Health and Safety,” which declared the Patient Protection and Affordable Health Care Act of 2010—the federal health care reform law—to be “void and of no effect” within the state of Idaho. The bill invoked the “Sovereign Power” of Idaho to “interpose between said citizens and the federal government when it has exceeded its constitutional authority.” House Bill 117 failed in the Idaho Senate, where one Republican Senate leader state that while he “agreed the health care overhaul passed by Congress last year was unconstitutional” he could not support a bill he thought also violated U.S. Constitution’s Supremacy Clause. On April 20, Idaho’s governor issued an executive order barring state agencies from complying with the federal Patient Protection Act.

A 2011 North Dakota bill, Senate Bill 2309, titled “Nullification of Federal Health Care Reform Law,” declared the Patient Protection Act to be “null in this state” and imposed criminal and civil penalties on any federal official, state official, or employee of a private corporation who attempted to enforce any provision of the Patient Protection Act. Unlike Idaho’s House Bill 117, North Dakota’s Senate Bill 2309 passed both houses of the legislature and was signed into law, but only after it was amended to delete the criminal and civil penalties.

In November 2012, the states of Colorado and Washington both voted to legalize recreational marijuana use—essentially nullifying federal drug law and policy. Today, the recreational use of marijuana is legalized in 18 states and the District of Columbia. In addition, the medical use of cannabis is legal, with a doctor's recommendation, in 36 states. 

Since the 1980s, seven states and dozens of cities have declared themselves to be “sanctuary” jurisdictions. These cities, counties, and states have laws, ordinances, regulations, resolutions, policies, or other practices that obstruct the enforcement of federal immigration laws, effectively nullifying those laws. 

Unlike pre-Civil War attempts, most of these instances of modern-day nullification, such as marijuana legalization, may well stand up under legal scrutiny. Instead of purporting to directly alter the binding force of federal law, they depend on the likelihood that, as a practical matter, federal authorities are unable to enforce national law without the cooperation of state officials.

The Nullification Crisis

In 1828, Andrew Jackson was elected president largely due to the support of Southern planters and owners of enslaved people who believed that as a Carolina native himself, Jackson would pursue policies more in line with the interests of the South. Indeed, Jackson had chosen South Carolina’s John C. Calhoun as his vice president. Most Southerners expected Jackson would repeal or reduce the so-called Tariff of Abominations, which set very high duties on goods imported into the United States and protect their economic interests better than Former President John Quincy Adams. 

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However, Jackson refused to address the tariffs, angering Vice President Calhoun—a longtime supporter of enslavement. In response to Jackson’s refusal, Calhoun anonymously published a pamphlet titled “South Carolina Exposition and Protest,” which put forward the theory of nullification. Calhoun argued that the US Constitution authorized the government to impose tariffs only to raise general revenue and not to discourage competition in trade from foreign countries. By maintaining that South Carolina could refuse to enforce federal law, Calhoun triggered one of the nation’s first and most impactful constitutional crises.

In response to Calhoun’s demands for nullification, Jackson convinced Congress to pass the Force Bill, a law allowing the use of federal troops to enforce tariffs if necessary, at one point threatening to “hang the first man of them nullifiers I can get my hands on to the first tree I can find.” 

However, bloodshed was avoided when an 1833 compromise on a new tariff crafted by Senator Henry Clay of Kentucky was reached. To the satisfaction of the South, tariff rates were reduced. However, states' rights and the doctrine of nullification remained controversial. By the 1850s, the expansion of slavery into the Western territories and the growing political influence of slave owners exposed the deep divides between the North and the South that led to the Civil War.

Enslavement and Segregation 

In reality, the Nullification Crises of the 1820s had been more about the preservation of the institution of enslavement than about high tariffs. The goal of Vice President Calhoun’s demands for nullification had been to shield the institution of enslavement against the federal government’s attempts to abolish it. While the Civil War ended enslavement, the ideals of states’ rights and nullification were later revived in the 1950s’ by White Southerners attempting to block the racial integration of schools.

Enslavement

In an attempt to stave off the Civil War and hold the Union together, Congress agreed to the Compromise of 1850 a series of five bills championed by Whig Party senator Henry Clay and Democratic senator Stephan Douglas intended to resolve disputes over the legality of enslavement in new territories added to the United States in the wake of the Mexican-American War. Ironically, resentment over several provisions of the compromise contributed to secession and the outbreak of the Civil War. 

One provision of the Compromise of 1850 was the passage of the Fugitive Slave Act, part of which compelled citizens of all states to assist federal authorities in apprehending persons suspected of attempting to escape enslavement. Additionally, the law imposed large fines on anyone found to have aided enslaved persons in escaping, even by simply giving them food or shelter. Most significantly the law denied suspected escaped enslaved persons any semblance of due process by suspending their rights of habeas corpus and trial by jury and barring them from testifying in court. 

As would be expected, the Fugitive Slave Act outraged abolitionists, but also angered many citizens who had previously been more apathetic. Instead of waiting for the Courts to overturn it, abolitionists found ways to resist it. While the Underground Railroad was the most famous example, abolitionists in Northern states also used nullification to help stop the enforcement of the federal act.

Vermont’s “Habeas Corpus Act” required the state to “protect and defend … any person in Vermont arrested or claimed as a fugitive slave.”

The “Michigan Personal Freedom Act” guaranteed any person accused of being a fugitive slave, “all the benefits of the writ of habeas corpus and trial by jury.” It also prohibited federal marshals from using state or local jails for holding accused fugitive enslaved persons and made attempting to send a free Black person south into enslavement a crime.

Influential abolitionists publicly supported these state nullification efforts. John Greenleaf Whittier said, “So far as that law is concerned, I am a nullifier.” And William Lloyd Garrison supported him when he wrote, “The nullification advocated by Mr. Whittier … is loyalty to goodness.”

In applying creative ways to deny the federal Fugitive Slave Act much-needed support and resources, the states were extremely effective at stopping it. By the time the Civil War began, almost every Northern state had enacted laws either nullifying the Fugitive Slave Act or rendering efforts to enforce it useless.

School Desegregation

On the afternoon of May 17, 1954, Chief Justice Earl Warren read the Supreme Court’s unanimous opinion in the case of Brown v. Board of Education, in which the Court ruled that state laws establishing racial segregation in public schools are unconstitutional, even if the segregated schools are otherwise equal in quality. Almost immediately afterward, Southern White political leaders condemned the decision and vowed to defy it. The legislatures of state-after-state passed resolutions declaring the Brown ruling “null, void, and of no effect” within the boundaries of their state.                                                                                                                                                                                                                                                                                                                                                                                                                                                Powerful Senator James Eastland of Mississippi declared that “the South will not abide by nor obey this legislative decision by a political body.”

Senator Harry Flood Byrd of Virginia described the opinion as “the most serious blow that has yet been struck against the rights of the states in a matter vitally affecting their authority and welfare.”

“If we can organize the Southern States for massive resistance to this order I think that, in time, the rest of the country will realize that racial integration is not going to be accepted in the South.” Senator Harry Flood Byrd, 1954

Along with legislative resistance, the Southern White population moved to nullify the Supreme Court’s decree. Across the South, Whites established private academies to educate their children until the use of public funds to support these segregated facilities was outlawed by the courts. In other cases, segregationists attempted to intimidate black families by threats of violence. 

In the most egregious instances of nullification, segregationists simply closed the public schools. After being served with a court order to integrate its schools in May 1959, officials in Prince Edward County, Virginia chose to close its entire public school system instead. The school system remained closed until 1964.

Meanwhile, the desegregation of Central High School in Little Rock, Arkansas became one of America’s most ugly examples of democracy gone wrong. On May 22, 1954, despite many Southern school boards resisting the Supreme Court’s ruling, the Little Rock School Board voted to cooperate with the Court’s decision.

When the Little Rock Nine—a group of nine black students who enrolled at formerly all-white Central High School—showed up for the first day of classes on September 4, 1957, Arkansas Governor Orval Faubus called in the Arkansas National Guard to block the black students’ entry into the high school. Later that month, President Dwight D. Eisenhower sent in federal troops to escort the Little Rock Nine into the school. Ultimately, the struggle of the Little Rock Nine drew much-needed national attention to the civil rights movement.

In 1958, after southern states refused to integrate their schools, the U.S. Supreme Court is said to have put the final nail in the coffin of nullification with its decision in the case of Cooper v. Aaron. In its unanimous ruling, the Supreme Court held that nullification “is not a constitutional doctrine … it is illegal defiance of constitutional authority.”

“This Court cannot countenance a claim by the Governor and Legislature of a State that there is no duty on state officials to obey federal court orders resting on this Court's considered interpretation of the United States Constitution in Brown v. Board of Education,” the Justices said. 

Texas Abortion Law

Over a year before the U.S. Supreme Court overturned Roe v. Wade, ending constitutional protections for abortion, the State of Texas enacted a law effectively nullifying that landmark 1973 ruling.

On September 1, 2021, Texas enacted its Senate Bill 8, the so-called “Fetal Heartbeat Law” prohibiting abortions once a fetal heartbeat can be detected, which can be as early as six weeks into pregnancy, before many people know they’re pregnant. Providers say that the law would prevent at least 85% of the abortions previously completed in the state.

Just over one week later, on September 9, 2021, the U.S. Department of Justice sued Texas on Thursday over its new abortion restrictions law after abortion rights advocates, abortion providers, and Democratic lawmakers had called for the Biden administration to act. Other legal challenges had been stymied due to the design of the law, which opponents say was engineered to flout a person’s right to an abortion established by Roe v. Wade in 1973.

In announcing the suit, U.S. Attorney General Merrick Garland said of the law, “This kind of scheme to nullify the Constitution of the United States is one that all Americans, whatever their politics or party, should fear.”

Garland further stated that Texas' statute was “invalid under the Supremacy Clause and the 14th Amendment, is preempted by federal law, and violates the doctrine of intergovernmental immunity.” He called the law a “statutory scheme” that skirts constitutional precedent by “thwarting judicial review for as long as possible.”

Similar state laws intended to restrict or stop abortions have been struck down by the Supreme Court over the years. However, the Texas law uses the novel mechanism of relying on private citizens filing lawsuits to enforce the law, rather than state officials or law enforcement. According to legal scholars, this makes it especially difficult to strike down in court because there is no specific defendant for the court to make an injunction against.

The law empowers any private citizen in the state to sue anyone found to be “aiding and abetting” an abortion, including providers, doctors, and corporations that choose to assist employees in obtaining abortions in other states.

Sources

• Boucher, C. S. “The Nullification Controversy in South Carolina.” Nabu Press, January 1, 2010, ISBN-10: 1142109097. 
• Read, James H. “Living, Dead, and Undead: Nullification Past and Present.” The University of Chicago Press, 2012, file:///C:/Users/chris/Downloads/living,%20dead%20and%20undead.pdf.
• Wiltse, Charles Maurice. “John C. Calhoun: Nullifier, 1829–1839,” Bobbs-Merrill Company, January 1, 1949, ISBN-10: ‎1299109055.
• Freehling, William W. “The Nullification Era - A Documentary Record.” Harper Torchbooks, January 1, 1967, ASIN:‎ B0021WLIII.
• Peterson, Merrill D. “Olive Branch and Sword: The Compromise of 1833.” LSU Press, March 1, 1999, ISBN10: ‎0807124974
• “Andrew Jackson & the Nullification Crisis.” Haysville (KS) Community Library, https://haysvillelibrary.wordpress.com/2009/03/15/andrew-jackson-the-nullification-crisis/.
• Sheriff, Derek. “The Untold History of Nullification: Resisting Slavery.” Tenth Amendment Center, Feb 10, 2010, https://tenthamendmentcenter.com/2010/02/10/the-untold-history-of-nullification/.