Nullification Failed in 1832, and James Madison Himself Said It Should

Imagine quoting a man's words back to him to win an argument, while he is still alive, still writing letters and still perfectly able to tell you what he meant. That is what the nullifiers of South Carolina did to James Madison in the early 1830s. They built a constitutional theory on resolutions he had drafted in 1798. And the Father of the Constitution, then in his late seventies at Montpelier, picked up his pen and told them they had it wrong.

This history matters because the theory never quite dies. Every few years someone proposes that a state legislature can declare a federal law void within its borders. Conservatives who love federalism, and we should love it, need to know why nullification failed, why its supposed author rejected it, and what lawful tools the states actually hold. Those tools are stronger than most people realize.

1798: the resolutions and the emergency that produced them

In the summer of 1798, with the country fearing war with France, Congress passed and President John Adams signed the Alien and Sedition Acts. The Sedition Act made it a crime to publish "false, scandalous and malicious" writing against the government, Congress or the president with intent to bring them into disrepute. Republican editors were prosecuted. A sitting congressman, Matthew Lyon of Vermont, was jailed and won reelection from his cell, a story we tell in The Sedition Act of 1798 Jailed a Congressman Who Won Reelection From His Cell.

With the federal courts enforcing the law and no Bill of Rights case law to speak of, Thomas Jefferson and James Madison turned to the state legislatures. They drafted resolutions anonymously. Jefferson's draft went to Kentucky, which adopted its resolutions in November 1798. Madison's went to Virginia, which adopted its resolutions in December 1798.

The two documents were not the same, and the difference is the whole story.

Kentucky, following Jefferson, declared that the Constitution was a compact among the states, that the federal government was not the final judge of its own powers, and that each party to the compact had an equal right to judge for itself both infractions and the mode and measure of redress. Jefferson's original draft used the word "nullification," and a second set of Kentucky resolutions in 1799 declared that a nullification by the states of unauthorized acts was the rightful remedy.

Virginia, following Madison, was more careful. It declared that when the federal government deliberately, palpably and dangerously exercised powers not granted, the states had the right and the duty "to interpose for arresting the progress of the evil." It then called on the other states to join in declaring the Alien and Sedition Acts unconstitutional and to cooperate in maintaining the rights reserved to the states and the people.

Interpose, in Madison's usage, meant to stand between the citizen and the overreach: to protest, to declare, to coordinate with other states, to petition Congress, to propose amendments. It did not mean that one state could, by itself, make a federal statute legally void.

No other state endorsed the resolutions. Several northern legislatures rejected them, some saying that the federal courts, not the states, decided constitutional questions. Madison then wrote his Report of 1800 for the Virginia legislature, defending the resolutions and explaining that the declarations of the states were "expressions of opinion" meant to excite reflection, not acts with legal force. The real remedy turned out to be political. Jefferson won the election of 1800, the Sedition Act expired in March 1801, and Jefferson pardoned those still suffering under it.

1828: the Tariff of Abominations and Calhoun's theory

Thirty years later the issue was money. In 1828 Congress passed a steeply protective tariff, raising duties on imported manufactured goods. Southern planters, who sold cotton abroad and bought manufactured goods, saw it as a transfer of wealth from their region to northern manufacturers. Its opponents called it the Tariff of Abominations.

That same year, the South Carolina legislature issued the South Carolina Exposition and Protest. Its author, kept secret at the time, was Vice President John C. Calhoun. Calhoun took the Kentucky idea and built it into a system.

1. The Constitution is a compact among sovereign states.
2. A party to a compact may judge for itself whether the compact has been broken.
3. A state may therefore, through a convention of its people, declare a federal law unconstitutional and void within its borders.
4. The law would remain suspended in that state unless three-fourths of the states amended the Constitution to grant the disputed power.

Notice the last premise, because it turns the Constitution upside down. Under Article V, a minority of states can block an amendment. Under Calhoun's theory, a single state could block a law, and the burden would shift to the rest of the country to amend the Constitution to overcome one state's objection. One state out of twenty-four would hold a veto over the Union.

In January 1830 the theory got its great public hearing in the Senate, in the debate between Robert Hayne of South Carolina and Daniel Webster of Massachusetts. Webster's second reply ended with the line generations of schoolchildren memorized: "Liberty and Union, now and for ever, one and inseparable!" That April, at a Jefferson birthday dinner, President Andrew Jackson rose and gave a toast aimed straight at Calhoun: "Our Federal Union: It must be preserved." Calhoun answered with a toast of his own, calling the Union the thing dearest to Americans next to their liberty.

1830: Madison answers

The nullifiers claimed Madison. He was the author of the Virginia Resolutions, they said, and those resolutions said the states could interpose. Madison was living in retirement in Virginia. He had every reason to stay quiet. He did not.

In August 1830 he wrote a long letter to Edward Everett, a Massachusetts congressman, and it was published in the North American Review that fall. In it, and in a series of letters and notes over the following years, Madison made four points.

1. The Virginia Resolutions never claimed a right of a single state to annul a federal law. They were declarations of opinion, addressed to the other states, inviting joint action. Interposition by the states collectively, through constitutional means, was different from nullification by one state.
2. The Constitution was not a compact among state governments. It was made by the people of each state, acting in their highest sovereign capacity through ratifying conventions, and once made it could not be undone by any one party.
3. The Supreme Court was meant to decide controversies between the federal government and the states. Madison pointed to the judicial power and the Supremacy Clause. A system in which each state judged for itself would mean twenty-four different constitutions.
4. Extreme oppression justified revolution, not nullification. The natural right to resist intolerable tyranny always remained, Madison wrote, but that was a right outside the Constitution, not a remedy within it.

Here is the Supremacy Clause, Article VI, Clause 2, which Madison and every honest reader had to reckon with:

This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.

That clause binds "the Judges in every State." It says nothing about a state convention's power to set federal law aside. Madison had helped write it.

1832 and 1833: the crisis and the compromise

In 1832 Congress passed a new tariff that lowered some rates but kept the principle of protection. South Carolina called a convention, which on November 24, 1832 adopted an Ordinance of Nullification declaring the tariffs of 1828 and 1832 null and void in the state and forbidding their collection after February 1, 1833. The ordinance threatened secession if the federal government used force.

Jackson, a southerner, a slaveholder and a man with no affection for high tariffs, answered with his Proclamation to the People of South Carolina on December 10, 1832. Its central sentence remains the best short refutation of the theory:

I consider, then, the power to annul a law of the United States, assumed by one State, incompatible with the existence of the Union, contradicted expressly by the letter of the Constitution, unauthorized by its spirit, inconsistent with every principle on which it was founded, and destructive of the great object for which it was formed.

Then the politics did what politics is supposed to do. Henry Clay negotiated a Compromise Tariff that would reduce rates gradually over nearly a decade. Congress also passed the Force Bill, authorizing the president to use the military to collect the revenue. Jackson signed both on March 2, 1833. South Carolina's convention reconvened, rescinded its nullification of the tariffs, and, to save face, nullified the Force Bill, which by then had nothing left to do.

Nullification had failed. The tariff came down through the ordinary legislative process. The principle that a single state could void federal law did not survive.

The objection, answered

Here is the strongest modern case for nullification, put the way its defenders would.

The federal government has grown far beyond its enumerated powers. The Supreme Court is itself a federal institution, and it has blessed much of that growth. Asking the federal courts to police federal power is asking the fox to audit the henhouse. The Constitution was ratified by the states, and the states, as parties, must retain some means of defending themselves. Without nullification, federalism is at the mercy of Washington.

The frustration is legitimate. The argument still fails.

1. The text forbids it. The Supremacy Clause makes constitutional federal law supreme and binds state judges to apply it. A state cannot be both bound and free to decide it is not bound.
2. The author rejected it. The theory's chief historical authority, Madison, spent his last years denying it, in writing, with reasons.
3. It proves too much. If one state can void a tariff, another can void a civil rights law, a federal protection of free speech, or the Second Amendment's application to it. Before the Civil War, Wisconsin's courts tried to void the Fugitive Slave Act, and the Supreme Court rejected that effort in Ableman v. Booth (1859). After Brown v. Board of Education, Arkansas officials claimed they were not bound by the decision, and the Court rejected that claim in Cooper v. Aaron (1958). The weapon fires in every direction.
4. There are better weapons. The states hold real, lawful tools. Using them does not require pretending the Supremacy Clause says something it does not.

The lawful tools the states actually have

Madison described them in Federalist 46: the disquietude of the people, their refusal to cooperate with federal officers, the opposition of state officials, and the embarrassments created by legislative devices. Translate that into the modern constitutional toolbox.

• Refuse to commandeer. The federal government cannot force state legislatures or state officers to carry out federal programs. New York v. United States (1992), Printz v. United States (1997) and Murphy v. NCAA (2018) established that rule. A state may decline to lend its police, its clerks and its databases to a federal program it opposes. That is not nullification. The federal law still exists. Washington simply has to enforce it with its own people. See Printz v. United States and the sheriffs who refused to be drafted by Washington.
• Sue. States have standing to challenge federal overreach and have won major cases, as the long line of challenges to agency rules shows.
• Declare and coordinate. Resolutions of protest, joined by many states, are Madison's interposition in its original form, and they shape what Congress does.
• Propose amendments. Two-thirds of the states can require Congress to call a convention for proposing amendments under Article V. We weigh that option in A Convention of States Is the Founders' Safety Valve, Weighed Honestly.
• Legislate within their own sphere. Where federal law is silent or does not preempt, the states govern, and they can show the country a better way. That is the argument of Federalism Lets Fifty States Experiment, and the Constitution Planned It.

The anticommandeering rule is the one modern conservatives should learn first. When a state passes a law telling its own officers not to enforce a federal statute, that law is generally on solid ground. When a state passes a law declaring a federal statute void and threatening federal officers who enforce it, the law is on no ground at all.

The case in brief

1. The Virginia and Kentucky Resolutions of 1798 protested the Alien and Sedition Acts; Kentucky's spoke of nullification, while Madison's Virginia Resolutions spoke of the states' interposing together.
2. Calhoun turned the idea into a theory that one state could void federal law, and South Carolina tried it against the tariffs of 1828 and 1832.
3. Madison, in his 1830 letter to Edward Everett and later writings, denied that his resolutions meant any such thing, and Jackson's proclamation of December 10, 1832 called the claimed power incompatible with the Union.
4. The crisis ended in March 1833 with the Compromise Tariff and the Force Bill, and the Supremacy Clause, Ableman v. Booth and Cooper v. Aaron settled that no state can annul a federal law.
5. States have strong lawful tools: refusing to commandeer their officers, suing, coordinated protest, and Article V.

What you can do: read the Supremacy Clause and the Tenth Amendment on the Constitution page, then ask your state legislator whether your state lends its officers to federal programs it opposes.