The States. Over time, the federal government used this power to do away with State militias and make the States financially dependent on the federal government through the redistribution of tax money. So yes, as a result of the war, it is more difficult for States to assert their authority and nullify federal acts. However, it is still possible, and there have been nullification efforts post, including attempts at nullifying Brown v.
Board of Education and the current movement for States to legalize marijuana despite federal prohibition. More importantly, the arguments for nullification are still the same. The Union is still a compact between the States, and as parties to this compact, the States have the right to interpret the Constitution. In other words, federal supremacy only applies to constitutional laws.
Hamilton said in Federalist No. These will be merely acts of usurpation, and will deserve to be treated as such. Madison , Marshall said of the Supremacy Clause:.
Kentucky and Virginia Resolutions
It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thus, the particular phraseology of the constitution of the United States confirms and strengthens the principle, supposed to be essential to all written constitutions, that a law repugnant to the constitution is void , and that courts, as well as other departments, are bound by that instrument [emphasis added].
Two of the most important nationalists in American history said that the Supremacy Clause only applies to constitutional laws and that an unconstitutional law is void. Nullification simply argues this declaration of unconstitutionality should be done by the States. States have a duty to declare acts unconstitutional and then obstruct their enforcement because they are void. This is the nationalist view of the Union, and it is false. It was not the people of all the States as one. The nationalist notion is erroneous based on the fact that the Constitution would only apply to the States that ratified it.
And in fact, Rhode Island did not ratify the Constitution until , almost two years after it went into effect. Hence, the people of a State that failed to ratify the Constitution would not be under the Constitution. But the Framers changed this because it was not certain that all the States would ratify the document. Thus it was the people through their State conventions that ratified the Constitution. And as such, the people of the States can convene to nullify unconstitutional federal acts laws, court rulings, etc.
The Constitution was not intended to provide uniformity among the States but to unify the States for a common purpose, namely commerce and defense. The Constitution was intended to open up free trade among the several States and to strengthen the military power of the federal government for defense.
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The limitations on States are few and are outlined in Article 1, Section Thus the Constitution was designed to leave most issues to the States made explicit in the Tenth Amendment , which would result in diversity among the States. But if a law is unconstitutional, then undermining its effectiveness is the very goal of nullification! This is a possibility, but it is unlikely. The federal government has very limited powers according to the Constitution, namely commerce and defense.
There is little reason for a State to nullify a law that provides for free trade commerce or provides protection for the State defense.
Furthermore, the potential for error or abuse by the States in regards to nullification is minimal in contrast to the actual abuse by the federal government, which has expanded its powers well beyond those granted by the Constitution. A State could nullify a perfectly constitutional law or many! And if nullification should be rejected because it risks violating the Constitution, then why not also reject the authority of the Supreme Court because it carries this same risk?
Judge Abel Upshur aptly responded to this criticism of nullification in his pamphlet, An Exposition of the Virginia Resolutions of Of the two evils, I choose the least. Many who are well acquainted with Southern history are almost entirely unfamiliar with the historical character of Nathaniel Macon. Timely Abbeville Instritute articles and news delivered directly to your inbox. Get a free gift and Abbeville Institute articles delivered to your inbox. Email Address. Skip to content Toggle navigation. As the Kentucky Resolutions of argued, the government created by this compact was not made the exclusive or final judge of the extent of the powers delegated to itself; since that would have made its discretion, and not the Constitution, the measure of its powers ; but that, as in all other cases of compact among powers having no common judge, each party has an equal right to judge for itself [emphasis added].
Madison , Marshall said of the Supremacy Clause: It is also not entirely unworthy of observation that, in declaring what shall be the supreme law of the land, the constitution itself is first mentioned; and not laws of the United States generally, but those only which shall be made in pursuance of the constitution, have that rank. Thank you for your support!
Books Is Davis a Traitor? Albert Taylor Bledsoe, author, Brion McClanahan and Mike Church, editors Published a year after the war, it provides the best argument every assembled in one book for the constitutional right of secession. Everyone interested in the overall design of the Constitution ratified by the several States in should read this book. Defending Dixie: Essays in Southern History and Culture Clyde Wilson A Collection of insightful essays on how Southerners think of themselves in the light of how they are perceived by outside cultural elites.
The Enduring Relevance of Robert E.
THE NULLIFICATION CRISIS AND ITS ORIGINS IN JEFFERSONS KENTUCKY RESOLUTIONS
The Founding Fathers Guide to the Constitution Brion McClanahan An article by article and clause by clause analysis of the Constitution ratified by the founding generation of and , a Constitution quite different from what the political class in Washington understands. Nullification: How to Resist Federal Tyranny in the 21st Century Thomas Woods A readable, comprehensive treatment of the constitutionality of State interposition and nullification.
Should be in the hands of every State legislator. Nullification: A Constitutional History, Kirk Wood. Nullification, A Constitutional History, And he explains how and why republicanism has been suppressed. He referred Hayne to Federalists 39 and In his August 28, letter to Edward Everett,81 Madison gave a glimpse of the reasons for his change of mind since The episode of the Alien and Sedition laws, in his opinion, showed that republicanism itself was an adequate check if the people were properly informed.
The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it. Neither of them therefore can have a greater right to break off from the bargain, than the other or others have to hold them to it.
The letter closed with regrets about the Nullification Proclamation, which Madison thought had spurred fears of consolidation,87 but did not suggest a way to offset the trend.
Thus far, throughout a period of nearly half a century, the new and compound system has been successful beyond any of the forms of Govt. It becomes all therefore who are friends of a Govt. Madison here ignored the preceding pronouncements in the same document, which comprised a consolidationist statement worthy of Daniel Webster. Political theorists had long insisted that sovereignty must be located in one place.
His failure would have cosmic repercussions. XX , XL, no. Bonn, Franklyn, Jr. Calhoun, John C.
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Ford, Lacy K. XXXVI, no. XIX Summer , Norton, Papers of James Madison, vols. Robert Rutland, et al. Charlottesville: University of Virginia Press, XXIII , LV , LXV October The Anti-Federalist, ed. All that, he averred, had been achieved,16 so there was merit in the whole. He held that successful congressional usurpations would require cooperation by the executive and judiciary; if each of them failed to impede the usurpation, in the last resort a remedy must be obtained from the people, who can, by the election of more faithful representatives, annul the acts of the usurpers.
He went on to say, ambitious encroachments of the federal government on the authority of the State governments would not excite the opposition of a single State, or of a few States only. In still another letter about nullification, Madison said: The essential difference between a free Government and Governments not free, is that the former is founded in compact, the parties to which are mutually and equally bound by it.
Since all his public writings had tactical purposes, to glean his political philosophy, one must either read his private letters in conjunction with his public writings or consider his post- retirement statements. The latter course obviously may not accurately reflect the beliefs of the earlier, active Madison.
AP U.S. History Notes
Papers of James Madison, vol. Charlottesville: University of Virginia Press, , John R. XIX Summer , , at For a hint at the reason why my reading is usually rejected by historians, see Ibid.
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