Historical Impact of "nullification Theory"

Throughout the history of America, certain events, people and works have left their mark and impacted the course of our nation. It may be for a brief period of time or long lasting. It's safe to say that nullification, defined by The Oxford Companion to the Supreme Court as "the doctrine by which states claimed power to declare a law of the federal government unconstitutional", greatly altered the path of our nation during the 19th century. Put forth in the Kentucky and Virginia Resolutions, the doctrine of "nullification" was used in response to the Alien and Sedition Acts of 1798, passed by the anti-French revolution federalists. These resolutions attempted to render inoperative in each state, through both nullification and interposition, the powers granted to the Federal government by those Acts. From the time of the Kentucky and Virginia resolutions through the secession of South Carolina in 1860, the impact of nullification doctrine could be felt throughout the nation. Perhaps the most important and systematic development of nullification doctrine occurred in South Carolina during the South Carolina Exposition and Protest (1828). Additionally, nullification and interposition were used on numerous occasions in an attempt to thwart federal law in the form of personal liberty laws and court action. As our country headed towards Civil War, nullification was mainly used as a tool for many southern states, with its emphasis on secession as a constitutional right, and it became increasingly intertwined with states rights and the South's defense of slavery.

In 1798, the Alien and Sedition acts were passed by congress. At the time, the United States was involved in an undeclared naval war with France, now referred to as the Quasi-War. Signed into law were four separate laws including, The Alien Sedition Act, the Alien Enemies Act, the Naturalization Act and most controversial of all, the Sedition Act. The said purposes of the acts were "to protect the U.S. government from alien citizens of enemy powers and to prevent seditious attacks from weakening the government." Most importantly and articulately standing in opposition were Thomas Jefferson and James Madison, the writers of the Kentucky and Virginia Resolutions of 1798 and 1799. They criticized the constitutionality of the acts; specifically the Sedition Act which Thomas Jefferson believed violated both the First and Tenth Amendments which protect free speech and restate the Constitution's principle of federalism by "providing that powers not granted to the national government nor prohibited to the states by the Constitution of the United States are reserved to the states or the people."

The Kentucky and Virginia Resolutions supported the compact theory of the Constitution. Compact theory refers to the belief that the United States of America was a nation formed through a compact agreement amongst the states, and for that reason the national government is a creation of the states. Furthermore, the Resolutions denied that the Supreme Court alone had authority to determine if the laws of Congress were constitutional. In arguing that the Supreme Court was a creation of the Constitution, Jefferson stated that giving it the power of judicial review would make "its discretion and not the Constitution the measure of its powers." Equally important to furthering the doctrine of "nullification", the Oxford Companion to the Supreme Court of the US states Jefferson as arguing that "when the federal government assumed a power not granted to it by the Constitution, each state, as a party to the constitutional compact, had a right to declare the law unconstitutional." This States' Rights mentality is essential to "nullification theory" and its belief that a State can overrule federal law, even when backed up by the Supreme Court.

Two things which showed how serious and dangerous a threat nullification posed to the Union took place in South Carolina, who fittingly became the first state to secede from the Union and kick start the Civil War. In 1828, the Vice President of the United States John C. Calhoun wrote the South Carolina Exposition and Protest. It was written in response to the Tariff of 1828, often referred to as the Tariff of Abominations. In it, Calhoun unequivocally stated that South Carolina would secede from the Union if the Tarriff of 1828 was not repealed. The tariff put a tax on many imported goods that the South did not produce itself, severely affecting their economy. Stating that that the tariff favored manufacturing over commerce and agriculture, Calhoun claimed this made it unconstitutional and that "the tariff power could only be used to generate revenue, not to provide protection