In two recent Supreme Court opinions, Justice Sonia Sotomayor criticized a Texas law attempting to ban abortion after six weeks through private lawsuits as an attempt to “nullify” constitutional rights. Chief Justice John Roberts also invoked nullification to describe the Texas law. “The clear purpose and actual effect of S. B. 8,” he wrote in Whole Woman’s Health v. Jackson (2021), “has been to nullify this Court’s rulings.”
But what exactly is nullification? Nullification is the constitutional theory that individual states can invalidate federal laws or judicial decisions they deem unconstitutional, and it has been controversial since its inception in early American history.
There have been three prominent attempts by states at nullification in American history. First, Kentucky’s attempt to nullify the Alien and Sedition Acts in 1798; second, South Carolina’s attempt to nullify two federal tariff laws in 1832; and third, Arkansas’s attempt to nullify Brown v. Board of Education (1954) in 1957. In each instance, nullification’s legitimacy as a constitutional theory was rejected. These three historical examples are worth reviewing, both to understand nullification and to place S. B. 8 in historical and constitutional context.
The Kentucky Resolutions of 1798
In 1798, during the Quasi-War with France, Congress passed, and President John Adams signed into law, the Alien and Sedition Acts. The Alien Act empowered the president to deport aliens he deemed a threat to national security, and the Sedition Act criminalized “false, scandalous and malicious” speech critical of the federal government.
The acts outraged Thomas Jefferson, Adams’s vice president and political rival. He responded by anonymously drafting a series of resolutions for the Kentucky state legislature. These Kentucky Resolutions, passed in 1798, declared the Alien and Sedition Acts unconstitutional and “altogether void and of no force” in the state of Kentucky.
How could a state nullify federal law? According to Jefferson’s draft Resolutions, the Constitution was a “compact” among the states that delegated a set of limited powers to the federal government. “[W]here powers are assumed which have not been delegated,” he wrote, “a nullification of the act is the rightful remedy.” Moreover, “each party” to the compact had “an equal right to judge for itself” whether the compact had been broken. This meant that “every state” had the power to “nullify of their own authority” any violation of the Constitution.
Jefferson hoped that other states would follow Kentucky’s lead in nullifying the Alien and Sedition Acts, but the only state that came close — Virginia, in a series of Resolutions anonymously drafted by James Madison —instead opted for the more moderate right of “interpos[ition]” that essentially meant merely announcing the laws’ unconstitutionality to the public.
While Jefferson lost the battle in Kentucky, he arguably won the war. The Alien and Sedition Acts’ unpopularity helped elevate him to the presidency in 1800, and in 1801 the Acts were permitted to expire. And as Justice William Brennan wrote in New York Times Co. v. Sullivan (1964), “Although the Sedition Act was never tested in this Court, the attack upon its validity has carried the day in the court of history.”
The Nullification Crisis of 1832–33
Three decades later, another vice president drew on Jefferson’s Kentucky Resolutions to mount a challenge to federal supremacy. The Nullification Crisis ensued in November 1832, when the South Carolina legislature passed an Ordinance of Nullification declaring two federal tariffs, the Tariff of 1828 (known by Southerners as the “Tariff of Abominations”) and the Tariff of 1832, “null, void, and no law” because they disproportionately burdened southern states.
In an anonymously drafted “Exposition and Protest” justifying South Carolina’s Ordinance, Vice President John C. Calhoun, following Jefferson, argued that states could “veto” federal acts they judged to exceed the federal government’s limited powers because the Constitution was a “compact” among sovereign states.
Unlike Adams, however, President Andrew Jackson forcefully denounced the theory of nullification. In a “Proclamation to the People of South Carolina” issued in December 1832, Jackson pointed to the Supremacy Clause and declared nullification:
“[I]ncompatible 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.”
What’s more, Jackson threated to use force against South Carolina if it refused to comply with federal law. “[D]isunion, by armed force, is treason,” he wrote menacingly. “Are you really ready to incur its guilt?”
Congress backed Jackson by offering South Carolina a compromise. In early 1833, it passed a Force Bill authorizing Jackson to deploy federal troops to South Carolina as well as a new tariff law, the Compromise Tariff, designed to ease the tax burden on the South. In March 1833, South Carolina repealed its Ordinance, thus ending the crisis.
The Little Rock Crisis of 1957 and Cooper v. Aaron (1958)
The third principal nullification attempt grew out of resistance by the Arkansas state government to judicially mandated school integration. In 1954, in Brown v. Board of Education, the Supreme Court unanimously held school segregation unconstitutional under the Equal Protection Clause of the 14th Amendment, and one year later, in Brown v. Board of Education II, it unanimously ordered schools across the nation to integrate “with all deliberate speed.” Yet hostility to integration was deep-seated, and several years later many white schools had still failed to integrate.
Resistance to Brown was especially fierce in Arkansas. In November 1956, Arkansans amended their Constitution to instruct the state legislature to oppose “in every Constitutional manner the Un-Constitutional desegregation decisions” in Brown I and Brown II. But crisis ensued when, in September 1957, Governor Orval Faubus deployed the Arkansas National Guard to prevent nine Black high school students from attending Little Rock Central High School; the students were able to attend only after President Dwight D. Eisenhower sent in the U.S. Army to enforce integration.
The Little Rock Crisis provided the backdrop for the case of Cooper v. Aaron (1958). Although Eisenhower’s deployment of the military had ended the immediate crisis, the prospect of a smooth and peaceful integration for students beyond the Little Rock Nine looked bleak. As a result, the Little Rock School District sought to buy time. Citing the “chaos, bedlam, and turmoil” that had plagued the Little Rock Nine’s integration, the school district asked the Supreme Court to let it postpone its integration plan for an additional two-and-a-half years.
If Jackson’s Nullification Proclamation is the definitive presidential statement against nullification, the Court’s decision in Cooper is the definitive judicial statement. Denying the school district’s request for postponement, the Court ruled that the students’ constitutional rights could not be “sacrificed or yielded to the violence and disorder” wrought by the Arkansas government’s disobedience of the Brown decisions. The students’ constitutional rights, the Court said in a unanimous per curiam decision, could “neither be nullified openly and directly by state legislators or state executive or judicial officers nor nullified indirectly by them through evasive schemes for segregation whether attempted ‘ingeniously or ingenuously.’”
Today, nullification will remain part of the debate over Texas’ abortion law as it continues to be considered by courts.
Samarth Desai is Special Assistant to the President & CEO of the National Constitution Center.
