In an attempt to register their objections to whatever Washington dreams up about gun restrictions, the Chesapeake Republican Party is considering a resolution explicitly calling for the state to “to nullify any federal legislation or executive order that infringes on our inalienable right as individual Virginians to keep and bear arms.”
Surprisingly, it has yet to spark the usual and historically ignorant debate on “nullification.” So this post is more a rhetorical pre-emptive strike. No matter, the critical point is this: the history of the nullification concept is one that hardly anyone actually knows…because if they did, they’d realize how silly they sound. I’ll be debunking the myths about nullification in chronological order.
1798: Virginia and Kentucky’s Isolation
Nearly every American knows about the Virginia and Kentucky legislatures (influenced by Jefferson and Madison) responding to the Alien and Sedition Acts by essentially granting themselves the power to prevent its enforcement within their borders. What is not as well known is the reaction of the other 14 states in the Union. While Jefferson and Madison did not openly acknowledge their roles in the debate, just about everyone knew nullification was a Jeffersonian idea. As such, ten Federalist-controlled states censured Virginia and Kentucky for what they (the other ten) considered an unconstitutional power grab. Even Jeffersonians in other states kept their heads down. It was the Federalists’ attempt to enforce the Acts themselves that made them unpopular – something that none other than Virginia’s Governor (James Monroe) understood, which was why he gladly let the central government enforce the law in his state (nullification be damned) and made sure those martyred to the Acts were known across the nation.
Nullification itself – divorced from one of the states that spawned it – quickly sunk as a political issue. The Acts in question became the Federalists’ millstone, and the Jeffersonians swept to power in the 1800 elections.
Antebellum era: South Carolina’s exception to the Yankee rule
Again, most Americans were taught all about South Carolina’s attempt to nullify the federal tariffs in 1832, and how President Andrew Jackson stared them down. Far fewer are aware that South Carolina was rare in that it was a southern state unhappy with Washington. As it happened, South Carolina did manage to convince Congress to lower some of the tariffs it considered egregious. More to the point, less than four years later, when states across the South rebelled against the (already reluctant) Postmaster General for enforcing delivery of abolitionist mail in Dixie, Washington folded like a cheap suit (Postmaster General included).
In fact, most of the attempts to invalidate federal law involved the Fugitive Slave Acts of 1793 and 1850 – and they came from the North. Among the most famous efforts regarding the former were Pennsylvania (which defended its personal liberty law all the way to the Supreme Court), and New York, where Governor William H. Seward pointedly refused to extradite sailors who had helped a slave escape from Virginia, on the claim that helping a slave escape was not a crime in New York.
Meanwhile, the Supreme Court ruled on Pennsylvania’s attempt to block the 1793 FSA in 1842. Prigg v. Pennsylvania declared that, yes, the FSA was the law of the land everywhere – including Pennsylvania – but, no, the Keystone Commonwealth had no obligation to enforce the law. Needless to say, southerners were not happy. By 1850, as part of the Compromise of that year, a new FSA was passed – one which explicitly compelled northerners to assist in the recapture of escaped slaves whenever asked.
To say the north responded with outrage is a dramatic understatement. In the ten years following, seven states passed new personal liberty laws – in some cases going beyond anything Madison or Jefferson proposed. Massachusetts actually made compliance with the FSA a criminal offense – punishable by fine and imprisonment.
In fact, by 1858, Senator Stephen A. Douglas, desperate to fend off a challenge to his re-election by Abraham Lincoln, even found a way to grant territories the right to block the Dred Scott decision (which made slavery legal in all non-state territories) via “unfriendly legislation.” Thus did nullification spread beyond anything of Jefferson or Madison’s speculations.
Post-bellum: the idea that dare not speak its name
Finally, it is generally a consensus in America that the Civil War ended the debate on nullification once and for all.
Not exactly. Ten years after the War, a lame-duck Republican Congress passed the Civil Rights Act of 1875, with provisions similar to the CRA of 1964. Only southern states had no interest in complying with the Act. Neither the Grant, Hayes, Garfield, nor Arthur Administrations made a serious effort to combat this nullification. The Supreme Court declared the Act unconstitutional in 1883, and it would be nearly three-quarters of a century before Washington even tried to combat nullification in this realm.
By then, however, our neighbors to the north had turned several separate British colonies into the Dominion of Canada, a federation with decidedly strong provincial governments. By the early 1980s, Canada decided to “repatriate” its constitution (i.e., create a new founding structural document not tied to the British Parliament). The result was the Charter of Rights and Freedoms, but many provinces were leery at what they saw as a dangerous concentration of power in Ottawa.
As a result, decades after it supposedly died in the United States, nullification was enshrined in the Canadian Charter – known as the “notwithstanding clause.” The province of Quebec uses the clause to this very day.
This is not to say that nullification is a wise policy. Like most supposedly abstract principles of government, its value depends largely on what it is being used to defend (in the aforementioned Quebec, it is a cover for odious and arguably tyrannical language laws). History shows us that when nullification comes from genuine popular outrage (the north in the 1850s), it has surprising staying power. By contrast, when a small elite grabs hold of it to protect themselves (South Carolina was led by a badly mal-apportioned state legislature in 1832), it is more likely to injure the underlying cause than aid it (see Monroe’s reaction in Virginia, cited above). Where gun rights fall in that spectrum likely depends more on the reader’s view of guns than anything else.
With luck, Washington will be smart enough to recognize that restricting gun rights will do little to nothing to enhance safety in America.
Wait, did I just say “Washington will be smart enough…”? Maybe we should dust off the history books after all…
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