Nullification:

The Long and Twisted History of a Political Doctrine

Photo by Markus Spiske on Unsplash

What rights, and powers, do states possess to defend themselves, and the rights of their citizens against a federal government that refuses to enforce its own laws?  Must states obey a lawless administration?  Do states have the lawful authority to defend their citizens against federal tyranny?  These are some of the questions that are raised in the current confrontation between the state of Texas and the Biden Administration.

These are not new questions.  Since the foundation of the republic one of the fundamental questions faced by the nation has been where state authority ends, and federal authority begins.  This question is inherent in a system of overlapping sovereignties such as the American federal system.

Throughout their history, Americans have recognized three possible courses of action available to a state that believes federal action violates the rights of its citizens.  First, is an appeal to the courts.  Indeed, that is almost the only recourse available to ordinary citizens today. 

During the ante-bellum period however, it was widely believed that two others were available in response to intolerable violations of the rights of citizens or the states:  nullification by the state of the particular law in question, and secession when not one, but a whole series of violations had become systemic in nature. Indeed, the Declaration of Independence itself suggests that “ . . . when a long train of Abuses and Usurpations, pursuing inevitably the same Object, evinces a design to reduce them under an absolute Despotism . . . ,” the people have a right to revolution or, as in 1776, the right to secede from the British Empire.

When the Alien and Sedition Acts, restricting First Amendment rights, were adopted in 1798, Thomas Jefferson and James Madison, both then in opposition to the administration of the Federalist John Adams, contended in the Kentucky and Virginia Resolves, that states could lawfully “nullify” such laws and or “interpose” their authority against Federal tyranny to protect the rights of their citizens.  This crisis ended without final resolution when no other states supported the idea, and because two years later Thomas Jefferson was elected president, and the Alien and Sedition Acts expired.   It remained an untested option, although James Madison reversed his opinion of nullification which he later denounced as treason.

During the War of 1812, New England Federalists meeting at the Hartford Convention in 1815, considered the possibility of secession from the Union because of its war policy.  Twenty years later in 1832, in response to a tariff that threatened the prosperity of cotton planters, South Carolina, threatened to “nullify” the tariff within the state.  At the time, President Andrew Jackson persuaded Congress to pass the Force Act, which granted him the authority to compel South Carolina to comply with the tariff with armed force if necessary.  Without support from any of the other states, South Carolina capitulated to Jackson when modifications were made to the tariff and further escalation of the crisis was avoided at the time.

Various abolitionists such as William Lloyd Garrison called upon the free states to secede from the Union so as to avoid further moral taint by association with the slave states south of the Mason-Dixon Line. In short, both nullification and secession seemed to many to be legitimate alternatives.

Meanwhile, a struggle over the extension slavery into free territory in the west, and the power of new states or territories to either protect or proscribe the peculiar institution was raised every time new territory was added to the Union. The Supreme Court further intensified sectional differences when its 1857 Dred Scott decision indicated that there was no way that slavery could be legally excluded from the territories and even hinted that the free states might be prohibited from excluding slavery in a future decision. These were among the central questions over which the Civil War was fought. 

Each clash between federal and state authority over slavery during the ante-bellum period, between 1820 and 1861, was defused by temporary compromise, until political intransigence made further compromise impossible. When South Carolina militia fired upon Fort Sumter in 1861, secession became a military rather than a political or legal question to be determined by force of arms.  By 1865 the Confederacy was no more, and secession was no longer a military, political, or even a legal option. So it remains to this day, although tensions have become so intense in recent years that many have proposed the idea of a “national divorce,” an idea not unlike the suggestion by some during the secession crisis of 1860-61 to “let the erring sisters go.”

Ultimately, it took the Civil War to partially resolve the question of the relative power of the federal and state governments, and to determine that secession was illegitimate.  The union was permanent, not subject to dissolution like a no-fault divorce.

But even that conflict did not finally determine where the boundary between federal and state power would be drawn.  Although slavery had been abolished, the states had not been, and even the occupied southern states still had rights—although some Radical Republicans such as the Pennsylvania congressman Thaddeus Stephens thought they were merely “conquered territories,” at the mercy of the federal government. 

Upon readmission to the Union, the formerly Confederate states, acting under the leadership of the Democratic Party, claimed the power to confine former slaves and their descendants to a position of social, economic, and political inferiority.  Accordingly, these states universally adopted so-called “black codes” authorizing the states to regulate the liberties of the men and women freed by the Thirteenth Amendment.  Freedom so regulated, was not freedom at all.  These newly “reconstructed” states had through the black codes effectively nullified the Thirteenth Amendment.  Chattel slavery no longer existed, but freedom was severely restricted for African-Americans, In short, the concept of “nullification,” which Jefferson had proposed as a method to protect individual liberty against a despotic federal law, was turned on its head to permit a state to deprive American citizens of their liberty.  Unreconstructed Confederate politicians thereby transformed nullification from a defense of liberty into a justification of tyranny.  Nullification was and remains a highly plastic concept easily manipulated by politicians.  It has generally been used by states as a weapon enabling states to defy federal power.

In an assertion of federal authority over the states, a Republican Congress passed, and the states ratified the Fourteenth and Fifteenth Amendments primarily to defend the rights of former slaves and their descendants against the despotism of the states. But these “parchment barriers” to use James Madison’s term for paper guarantees, proved insufficient to protect the rights of black Americans against determined attack backed by the Ku Klux Klan, state governments, and Democrats throughout the South. 

Despite the language of the Fourteenth and Fifteenth Amendments, nullification wasn’t dead after all, and racial discrimination metastasized throughout the south.  In 1896 the Supreme Court gave its blessing to the idea of “separate but equal” in its Plessy v. Ferguson decision, thus paving the way for the establishment of Jim Crow justice for generations. In short, in one of its most appalling decisions, the court ratified statewide nullification of elements of both the Fourteenth and Fifteenth Amendments.

It was only with the Brown decision of 1954 which reversed Plessy almost sixty years later, and ultimately the adoption of the Civil Rights Act of 1964 and the Voting Rights Act of 1965 that neo-Confederate nullification of the Reconstruction Amendments came to an end.

Although the term dropped out of the political lexicon, nullification did not disappear in the ensuing decades.  It simply took on another form and was used for novel purposes.  No longer germane to the civil rights struggle, Democrats began to apply the concept, though not the term which still was tainted by racist overtones, to immigration law and its enforcement.

In the wake of the immigration reforms of the mid-1960s, Democrats, recognizing that immigrants, both legal and illegal, tend to make heavy use of the nation’s welfare systems and to congregate in large urban areas, traditionally controlled by the their party, local Democrats began to see them and their descendants as potential voters whose loyalty should be courted.  Accordingly, numerous progressive politicians and activist groups began to subvert the enforcement of the nation’s immigration laws at the state and local level, much as their predecessors had subverted the enforcement of the Civil Rights Act of 1866 and the Fourteenth and Fifteenth Amendments.

Beginning in the late 1980s scores of cities, big and small, run by Democrats adopted ordinances proclaiming that they were “sanctuary cities,” which refused to cooperate with federal authorities charged with the enforcement of immigration laws.  Many states as well, such as California, New York, and Illinois, likewise declared themselves sanctuary jurisdictions where federal law would not be enforced by local authorities.  These jurisdictions attempted to nullify federal laws passed by Congress and signed into law by the president.  It was the same device used throughout the Jim Crow south to defend segregation.  It just had a new guise—the protection of those illegally present—and the federal government acquiesced in this for decades because powerful interests in both parties preferred it that way.  Democrats wanted new voters, while business, big and small, wanted a free flow of both labor and capital across international borders—regardless of its impact upon American workers and society.

By 2016 an estimated fifteen to twenty million migrants had illegally entered the United States since the passage of the Immigration Reform Act of 1965, and most has taken up residence in the nation’s big cities and sanctuary jurisdictions. As many as half a million or more crossed the border illegally every year.  The situation at the border was clearly out of control, and although newly elected President Donald Trump acted to staunch the flow of illegal migrants across the largely undefended border and to reassert existing federal law, he never directly challenged the nullification of federal law by “sanctuary” jurisdictions.

When Joe Biden took office in 2021, among his first official acts was to suspend enforcement of numerous federal immigration laws in clear violation of his oath of office which requires him to “take Care that the Laws be faithfully executed.”  This in turn precipitated a flow of as many as nine to ten million illegal migrants across the Rio Grande into Texas and elsewhere in a mere three years—once again creating a crisis in relations between federal and state authority this time over immigration rather than slavery or Jim Crow.

Joe Biden pretends that the border is “secure,” while refusing to enforce existing immigration law, in clear violation of his constitutional obligation to enforce federal law, and his oath to “protect and defend the Constitution . . . ,” leaving it to states to do the job that the federal government should be doing.  

Throughout most of American history it was the states that have attempted to nullify federal law, but in a bizarre reversal of the historical pattern, when Texas attempted not to nullify but to enforce the law, the federal government went to court to thwart the state’s effort to do what the federal government is constitutionally obligated to do.  The administration appears to believe that it can pick and choose which laws to enforce and which to ignore and a majority of the Supreme Court justices appear to agree.

Democracy cannot function when laws duly enacted by the people’s representatives are not enforced by those entrusted to do so.  Indeed, if those whose responsibility it is to enforce the laws, instead defy them, they undermine respect for all law.  Nullification subverts democracy.

In its attempt to nullify the federal immigration laws, the Biden administration is attacking the democratic process.  If it wants to abolish the immigration laws, there is a constitutional process to accomplish this:  ask Congress to repeal them.  In the interim, the administration is obligated to enforce them regardless of whether it approves of them. 

Meanwhile, the Supreme Court, in another one of its appalling decisions, has taken the position that the states cannot enforce immigration law when the federal government refuses to.  Amidst the constitutional and social chaos thus created by the federal government and a feckless Supreme Court, progressive congressmen and activists are recklessly urging the government to federalize the Texas National Guard and use it to enforce non-compliance with federal law. This absurd situation pitting the federal government against the states is in turn exploited by Mexican drug cartels who now have effective control of the nation’s southern border.

So, the American people have a president who is who is simultaneously blundering into a constitutional crisis, abetted by the Supreme Court, and into multiple crises abroad.

Let us hope that, unlike the zealots of 1861 who blundered into the nation’s bloodiest conflict, ours can avoid catastrophe.