Sunday, January 5, 2014
No, James Madison did not Reject Nullification
Posted by Charleston Voice
For some reason, some conservative commentators keep propagating the historical lie that James Madison “rejected nullification.” James Madison did no such thing.
Even while opposing a bastardized proposal for nullification created out of thin air in South Carolina, he still supported nullification as a “natural right.”
In Madison’s “notes on nullification” during the later days of his life, he explicitly rejected a very specific doctrine of nullification proposed by South Carolina. But during the same time period, he referred to “nullification…as a natural right”
Madison’s arguments against this doctrine are hard to dispute. Here’s what he wrote:
This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties.
The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the United States, unless overruled by three-fourths of the states.
Madison is talking about a bastardized version of nullification which South Carolina’s advocates proposed.
South Carolina essentially asserted that once a single state nullified a federal act, it was annulled within that state and it could not be legally enforced there until three-quarters of the other states overruled the nullification.
Furthermore, South Carolina claimed that a state’s act of nullification was “presumed right and valid” until overturned.
In other words, a single state could effectively control the entire country.
An article published in the influential North American Review, published in January 1833, sums up the nullification doctrine advanced by South Carolina and vehemently opposed by Madison.
The controversy is, however, not about words, but things. The right which the Vice-President (Calhoun) disclaims under the name of abrogating, but claims for a State under that of nullifying an act of the General Government, is thus stated by himself in the letter alluded to above.
1. A State has a right, in her sovereign capacity in Convention, to declare an unconstitutional act of Congress to be null and void; and such declaration is obligatory on her citizens, and conclusive against the General Government; which would have no right to enforce its construction of its powers against that of the State.
2. Upon the exercise of this right by a State, it would be the duty of the General Government to abandon the power, at least as far as the nullifying State is concerned, and to apply to the States themselves, according to the form prescribed by the Constitution, to obtain it by a grant.
3. If the power thus applied for be granted, acquiescence then would he a duty on the part of the State; and in that event, the contest would terminate in converting a doubtful constructive power into one positively granted: but should it not be granted, no alternative would remain for the General Government but its permanent abandonment.
Such are the three leading points in the doctrine of nullification, as laid down by its principal champion.
Representatives of the Palmetto State forwarded this idea as a “constitutional” remedy. The South Carolina version of nullification held that a single state’s action legally bound the rest of the country and annulled – or made legally inoperative – the federal act within that state.
It’s important to understand that South Carolina was using, and Madison was addressing, a very precise, legal definition of nullification. The modern day nullification movement uses the term in a more practical, Jeffersonian, natural-right sense.
Madison was addressing the South Carolina doctrine that defined nullification in a legal sense – to annul the law – or render it legally invalid, like a veto.
Of course, we find no such mechanism in the Constitution, and Madison rightly argued this idea was absurd.
“But it follows, from no view of the subject, that a nullification of a law of the U. S. can as is now contended, belong rightfully to a single State, as one of the parties to the Constitution; the State not ceasing to avow its adherence to the Constitution. A plainer contradiction in terms, or a more fatal inlet to anarchy, cannot be imagined.” [Emphasis added]
Quite simply, a single state can’t bind other political societies – neither the other states, nor the union of states created by the Constitution. A single state has no power to legally require federal agents to cease enforcement of federal acts. No mechanism exists for a single state to veto a federal act and force other states or the federal government to recognize that veto as “right and valid.” The Constitution does not establish any such process, as Madison asserted in the Notes.
This was the “nullification” Madison was addressing in his Notes – a process dreamed up by Calhoun and South Carolina statesmen – and readers must keep that context in mind.
Modern nullification opponents fail to do so. They ignore what Madison was clearly addressing by taking quotes from Notes and using them to attack Jeffersonian nullification, the foundation of the modern nullification movement.
Even while arguing against South Carolina nullification, Madison continued to affirm Jeffersonian nullification in his Notes.
“Thus the right of nullification meant by Mr. Jefferson is the natural right, which all admit to be a remedy against insupportable oppression. It cannot be supposed for a moment that Mr. Jefferson would not revolt at the doctrine of South Carolina, that a single state could constitutionally resist a law of the Union while remaining within it, and that with the accession of a small minority of the others, overrule the will of a great majority of the whole, & constitutionally annul the law everywhere.” [Emphasis added]
The Handbook on Madison and Nullification
Madison again states his opposition to the specific “doctrine of South Carolina,” the bastardized version of nullification created by Calhoun. He also emphatically asserts that “all admit” nullification to be a “natural right” – a legitimate and valid option to stop the oppression of federal usurpation.
In other words, when the federal government unchains itself from its constitutional restraint, the people of the states have the right to defend themselves and stop it.
Yes. James Madison correctly rejected the South Carolina doctrine of nullification, which claimed the power to legally bind everyone to its own decision. At the same time, James Madison was quite clear that nullification is an undisputed natural right.
Those who claim Madison opposed nullification are either ignorant of this fact, or lying.
About the author
Michael Maharrey [send him email] is the Communications Director for the Tenth Amendment Center. He proudly resides in the original home of the Principles of '98 - Kentucky. See his blog archive here and his article archive here. He is the author of the book, Our Last Hope: Rediscovering the Lost Path to Liberty/