1911 Encyclopædia Britannica/Nullification

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NULLIFICATION, the process of making null or of no effect (Lat. nullus, none). In United States history the term is applied to the process by which a state either (a) in fact suspended, or (b) claimed a constitutional right of suspending, the operation of a federal law within its own territory. The doctrine of nullification as a constitutional theory was probably never held by a majority of the states or of the American people at any one time, though before 1860, most of the states asserted or practised it. The belief in nullification was based on the theory that the union of states was a voluntary one, each member retaining its own sovereignity, though for purposes of convenience delegating certain powers of the government to an agent—the federal government. The powers of this agent were strictly limited by the Constitution, and should it transcend these powers the states must interpose to protect their rights. This view held that the Supreme Court created by the Constitution was not a proper tribunal to decide causes arising beyond the Constitution or relating to the nature of the Union, but that its jurisdiction was limited to cases arising under the Constitution. If the Federal government usurped a right belonging to the state, the latter, being a sovereignty, must judge for itself.

As later perfected by John C. Calhoun (q.v.), the theory of nullification required a practice as follows. A state aggrieved by a law of the Federal congress might, in constituent convention, suspend the operation of the objectionable law, and report its action to the other states. If three-fourths of them should decide that the law in question was not unconstitutional, then in effect it became ratified (see United States Constitution, art. v.). The dissatisfied state must then submit or must draw out of the union by the act of secession (see Secession, and Confederate States). This theory of the right of nullification was considered by those who held it to be in accord with the principles laid down in the Constitution. It must be distinguished from secession, which was considered a sovereign right, one above the Constitution; yet nullification presumed the sovereignty of the state.

The earliest assertions of the doctrine of nullification are found in the Kentucky and Virginia Resolutions of 1798–1799, written respectively by Thomas Jefferson and James Madison in protest against the Alien and Sedition Acts of Congress. Nullification was first practised in 1809 by Pennsylvania, the governor ordering out the state troops to resist the execution of a decree of the Federal court. In the New England states, 1809–1815, the United States laws relating to embargo, non-intercourse and army enlistments were nullified by state action. From 1825–1829 the state of Georgia forcibly prevented the execution of Federal laws and court decrees relating to the Indians within her borders and in Alabama, 1832–1835, there was a similar nullification. The only example of nullification in which theory and practice coincided was the nullification in 1832 by South Carolina of the Federal tariff laws. In this the state acted upon the theory outlined above which was perfected by Calhoun. In the last decade before the Civil War fourteen of the Northern states in the so-called “Personal Liberty laws” nullified the Federal statutes relating to slaves and slavery by making it a crime for their citizens to obey these laws and by setting the state administration against the Federal officials. Since the Reconstruction the Southern states have in practice effected a nullification of the Fourteenth and Fifteenth Amendments to the Constitution providing for negro suffrage.

See John C. Calhoun, Works, vols. i. and vi. (New York, 1853–1855); D. F. Houston, Critical Study of Nullification in South Carolina (New York, 1897); C. W. Loring, Nullification and Secession (New York, 1893); E. P. Powell, Nullification and Secession in the United States (New York, 1897); and U. B. Phillips, Georgia and States Rights (Washington, 1902). (W. L. F.)