Opponents of nullification often claim that James Madison opposed the principle. But they base their arguments on a misreading of Madison’s late writings. While Madison did, in fact, oppose a specific nullification proposal, he never opposed the right to nullify in general.
“Bastardized Version” of Nullification
In current discussions over nullification, a sticking point often exists over James Madison’s view on nullification; specifically his writings about South Carolina’s nullification crisis over tariffs in 1832.
Madison spoke out against the state’s reasoning; it asserted the power to “veto” the tariff, making it legally null and void within the borders of the state.
South Carolina further argued that every other state had to recognize the state action unless a 3/4 said otherwise in convention. Opponents of nullification have latched onto Madison’s note as a panacea against the those arguing for a far-different form or nullification today. Yet an important, be it subtle, distinction is present within the Father of the Constitution’s words that spoils their argument.
When Madison wrote about nullification in the 1830s, he repeatedly referred to South Carolina’s “peculiar doctrine,” attacking it specifically, not nullification in general.
He opposed the idea that a state had a right to legally overturn a federal act, rather than simply take actions to block its effect. He also opposed the idea that a single state’s action should bind the other states unless 3/4 of them joined together to refute it. In his later writings, Madison also opposed the South Carolinians’ view that nullification was a “constitutional right,” one given rise from the text of the document.
Opponents ignore this distinction and charge Madison as perpetrating an “attack on nullification“ completely. Presuming nullification has a precise constitutional legal meaning neglects its underlying spirit entirely; this is not the vision Jefferson and Madison had in mind. When opponents attack what Mike Maharrey calls, this “bastardized version” of nullification, they are doing nothing more than attacking a straw man.
Rejecting South Carolina’s version of nullification, if a state nullifies a federal act today, it does not mean that neighboring states have to approve of that action or even agree. For example, even though Colorado has virtually nullified Federal marijuana laws, this does not mean Nebraska or any other state must recognize the legitimacy of Colorado law. It doesn’t matter. Colorado acts independently.
A Natural Right
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]
This distinction aside, Madison’s explanation of nullification as a “natural right” places it beyond the reach of bureaucrats and the volatile majority.
His mention of a “natural right” is simply short hand for saying, individuals (inherent in our nature) have a right to choose our own ends and, logically, must have the freedom to choose how to achieve them. Just as plants and animals have a nature about them, so do individuals. Nullification is nothing more than the manner in which we reach our goals.
If the people of the States are denied the right to choose this method, reason would demand, they’ve been relinquished of their natural tendencies. As Murray Rothbard explains, “violent interference with a man’s…choices is there for profoundly ‘antihuman’; it violates the natural law of man’s needs.”
Lastly, the Ninth Amendment further solidifies this notion; being that our natural rights are numerous, the Framers realized the difficulty of trying to list them all but rather wrote the amendment to encompass all rights not specifically mentioned in the Constitution as off-limits to the Federal Government.
Nullification, as both Madison and Jefferson made clear, is a natural right, which “all admit” is a remedy. The only question left is for you, are you facing “insupportable oppression?” If so, nullification is your rightful remedy.