James Madison Papers

Notes on Nullification, December 1835

Altho’ the Legislature of Virginia at a late Session declared almost unanimously, that South Carolina was not supported in her doctrine of nullification by the Resolutions of 1798 it appears that those Resolutions are still appealed to as expressly or constructively favoring the doctrine.

That the doctrine of nullification may be clearly understood, it must be taken as laid down in the Report of a Committee of the House of Representatives of South Carolina in 1828. In that document it is asserted, that a single State has a constitutional right to arrest the execution of a law of the United States within its limits, that the arrest is to be presumed right and valid and is to remain in force unless three fourths of the States in a Convention, shall otherwise decide.

The forbidding aspect of a naked creed according to which a process instituted by a single State is to terminate in the ascendancy of a minority, of seven, over a majority of seventeen, has led its partizans to disguise its deformity under the position that a single State may rightfully resist an unconstitutional and tyrannical law of the United States; keeping out of view the essential distinction between a Constitutional right, and the natural and universal right of resisting intolerable oppression. But the true question is whether a single State has a constitutional right to annul or suspend the operation of a law of the United States within its limits, the State remaining a member of the Union, and admitting the Constitution to be in force.

With a like policy, the Nullifiers, pass over the state of things at the date of the proceedings of Virginia and the particular doctrines and arguments to which they were opposed; without an attention to which the proceedings in this as in other cases may be insecure against a perverted construction.

It must be remarked also that the champions of nullification, attach themselves exclusively to the 3d. Resolution, averting their attention from the 7th. Resolution which ought to be coupled with it; and from the Report also, which comments on both, and gives a full view of the object of the Legislature on the occasion.

Recurring to the epoch of the proceedings, the facts of the case are that Congress had passed certain acts bearing the name of the Alien and Sedition laws, which Virginia and some other States, regarded as not only dangerous in their tendency, but unconstitutional in their text; and as calling for a remedial interposition of the States. It was found also that, not only was the constitutionality of the acts vindicated by a predominant party, but that the principle was asserted at the same time, that a sanction to the acts given by the Supreme Judicial authority of the United States, was a bar to any interposition whatever on the part of the States, even in the form of a Legislative declaration that the acts in question were unconstitutional.

Under these circumstances the subject was taken up by Virginia in her Resolutions, and pursued at the ensuing session of the Legislature in a Comment explaining and justifying them; her main object, evidently being, to produce a conviction every where, that the Constitution had been violated by the obnoxious acts and to procure a concurrence and co-operation of the other States in effectuating a repeal of the acts. She accordingly asserted and offered her proofs at great length, that the acts were unconstitutional. She asserted moreover and offered her proofs that the States had a right in such cases, to interpose, first in their constituent character to which the government of the United States were responsible, and otherwise as specially provided by the Constitution; and further that the States in their capacity of parties to and creators of the Constitution, had an ulterior right to interpose, notwithstanding any decision of a constituted authority; which however it might be the last resort under the forms of the Constitution in cases falling within the scope of its functions, could not preclude an interposition of the States as the parties which made the Constitution and as such possessed an authority paramount to it. 308.

In this view of the subject there is nothing which excludes a natural right in the States individually more than in any portion of an individual State, suffering under palpable and insupportable wrongs, from seeking relief by resistance and revolution.

But it follows from no view of the subject, that a nullification of a law of the United States 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 of anarchy cannot be imagined.

And what is the text in the proceedings of Virginia which this spurious doctrine of nullification claims for its parent? It is found in the 3d. of the Resolutions of -98, which is in the following words:

"that in case of a deliberate, a palpable and dangerous exercise of powers not granted by the [Constitutional] compact, the States who are parties thereto have a right and are in duty bound to interpose for arresting the progress of the evil, and for maintaining within their respective limits, the authorities rights and liberties appertaining to them."

Copy (ViU).

Index Entries