Last time we dealt with the ‘Article 5 Convention of the States’ and examined a few of the objections to the process—namely who would be involved and how. We suggested an alternative—nullification. And as we shall learn together, the roots of nullification lie with a couple of the Founders and the Constitution itself.
So let’s take a look by first revisiting the Constitution. Article 1, Section 1 states that “All legislative Powers herein granted… Article 1, Section 8 is a list of those specific authorities for the General Government surrendered by the States. Sure, there are others, but the remainder is mostly process—appointments and confirmations, treaties, impeachment and the like. Couple this with Article 6, Clause 2 and the 9th and 10th Amendments and we can form our basis for examining the history and practice of nullification.
The first major incidence occurred following the passage of the Alien and Sedition Acts of 1798. The three Alien Acts were passed to deal with immigration and naturalization, containing some good and some bad ideas, but were certainly within the purvey of Article 1, Section 8, Clause 3(a), and Article 1, Section 9, even as it was at the time more specifically exercised by the several States for nearly a century later.
The Sedition Act was a different matter. It made a crime out of saying or writing anything negative about the Government or its officials. And this was a mere 8 years after the adoption of Amendment 1 to the Constitution. We will not deal here with the very interesting and contentious political situation but it might interest some to further investigate Thomas Jefferson and John Adams, their parties, and the press.
In response to these laws, Vice-President Jefferson (anonymously) and VA Representative and future President James Madison wrote the Kentucky and Virginia Resolutions (Resolves) respectively. The Virginia Resolution did everything but call for nullification by name. The Kentucky Resolution, on the other hand, used that specific language, edited here for brevity. “[T]he several states who formed that instrument [the Constitution], being sovereign and independent, have the unquestionable right to judge of its infraction; and that a nullification, by those [states], of all unauthorized acts….is the rightful remedy.” Another phrase which recurred often during that time was ‘null, and of no effect.’ No other State joined in passing these two Resolutions, even though most agreed with the concepts and principles espoused therein. The final result was that two of the three Alien Acts were repealed and the third revised, and the Sedition Act, which had a sunset clause, was allowed to expire in 1801, notably as Jefferson was sworn in as President. See again the politics of the day.
Nullification works!
The theory of State Sovereignty and therefore nullification simmered, with little action except for the Hartford Convention of 1814, until the ‘Nullification Crisis’ of 1832-1833. In 1828 and again in 1832, tariffs were imposed which South Carolina viewed as unfair and discriminatory towards the Southern States and were therefore unconstitutional. The State passed a law later in 1832 declaring the tariffs “null and void” within the State. President Jackson threatened to send in troops to enforce the tariffs but simultaneously Congress revised the rates downward, somewhat to the satisfaction of the South Carolina legislature, which then repealed the law.
Once again, nullification worked.
There have been a few private court cases wherein nullification was argued but quite naturally, and mistakenly, the Courts have ruled against all of them.
So let’s go back to the Constitution to see how this should work.
Most folks, and certainly the Courts, hang their hats on Article 6, Clause 2, which, because it contains the most ignored phrase in the English language, we quote in full. “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land…
Shall not the converse apply to the emphasized portion? In other words, if the law is NOT in pursuance of the rest of the document it is NOT ‘the supreme Law of the Land’ and therefore should be declared “null and void” by the several States.
In Part 3 we will discuss the misrepresentations of these two concepts—Article 5 Convention and Nullification—and try to suggest solutions.
(Emphasis and ellipses added by)
Bud Garner