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Nearly 200 Years After South Carolina, Texas Provokes a New Nullification Crisis

January 25, 2024

As Texas Governor Greg Abbott doubles down on the Lone Star State’s refusal to follow federal immigration law and the ruling of the Supreme Court regarding the border with Mexico, it is worth recalling the words of the President of the United States:

The power to annul a law of the United States, assumed by one State, [is] 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.

But the President who declared “our Constitution does not contain the absurdity of giving power to make laws, and another power to resist them” was not Joe Biden, but Andrew Jackson. And after the 7th President invoked the Constitution’s Article VI Supremacy Clause in 1832, Jackson warned South Carolina that its lawless effort to block federal import tariffs would be stopped, by force if necessary. And unless Congress soon acts as it did 191 years ago, Texas must soon feel the full force of federal power its lawless actions require.

Nearly 200 years before Governor Abbott’s “nonsense” claim that Texas is facing an “invasion” of undocumented immigrants as defined by Article I, Section 10 of the U.S. Constitution, South Carolina threatened to nullify federal law on trade. To protect America’s nascent domestic manufacturers (primarily in the North) and to raise federal revenue to pay down the national debt, Congress in 1828 passed the Tariff of 1828. What Southerners branded the “Tariff of Abominations” levied increases as high as 50% in the import duties for hemp, wool and a host of other goods. In the South, the tariff not only led to higher cost manufactured goods from the North but resulted in declining cotton exports to the slave economy’s biggest trading partner, Great Britain.

On December 19, 1828, the South Carolina House of Representatives issued its “Exposition and Protest” on the subject of the tariff. The document, secretly drafted by Vice President John Calhoun of South Carolina, didn’t merely decry the harms visited on the state by the tariff, but proclaimed the federal government had no authority to impose it on the states at all:

If it be conceded, as it must be by every one who is the least conversant with our institutions, that the sovereign powers delegated are divided between the General and State Governments, and that the latter hold their portion by the same tenure as the former, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself, and being reduced to a subordinate corporate condition. In fact, to divide power, and to give to one of the parties the exclusive right of judging of the portion allotted to each, is, in reality, not to divide it at all; and to reserve such exclusive right to the General Government (it matters not by what department) to be exercised, is to convert it, in fact, into a great consolidated government, with unlimited powers, and to divest the States, in reality, of all their rights, it is impossible to understand the force of terms, and to deny so plain a conclusion. [Emphasis mine]

But Calhoun’s strident defense of states’ rights flew in the face of the unambiguous text and clear history of the United States Constitution. After all, “this Constitution, and the Laws of the United States,” Article VI reads, “shall be the supreme Law of the Land.” Just as important, the Constitution’s “Commerce Clause” articulated in Article 1, Section 8 that trade policy was the domain of Congress alone:

The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;

To borrow money on the credit of the United States;

To regulate commerce with foreign nations, and among the several states, and with the Indian tribes. [Emphasis mine.]

Nevertheless, even after some reductions to the Tariff in 1830, South Carolina still bristled at federal trade policies it deemed designed to benefit Northern states at the expense of those in the South. Expanding on his earlier arguments made under President John Quincy Adams, Vice President Calhoun argued the national government was nothing more than “the joint agent of the several states.” On November 24, 1832 South Carolina issued its “Ordinance of Nullification,” which proclaimed the Tariff of 1828 and its subsequent revisions “are unauthorized by the Constitution of the United States, and violate the true meaning and intent thereof and are null, void, and no law, nor binding upon this State, its officers or citizens.” Now Andrew Jackson’s VP, Calhoun delivered this thundering rejection of federal power:

The Constitution of the United States is a compact between the people of the several states, constituting free, independent, and sovereign communities…the government it created was formed and appointed to execute, according to the provisions of the instrument, the powers therein granted as the joint agent of the several states…all its acts, transcending these powers, are simply and of themselves null and void, and…in case of such infractions, it is the right of the states, in their sovereign capacity, each acting for itself and its citizens, in like manner as they adopted the Constitution to judge thereof in the last resort and to adopt such measures—not inconsistent with the compact—as may be deemed fit to arrest the execution of the act within their respective limits. Such we hold to be the right of the states in reference to an unconstitutional act of the government; nor do we deem their duty to exercise it on proper occasions less certain and imperative than the right itself is clear. [Emphasis mine]

President Jackson, though sympathetic to some notions of states’ rights, was having none of it. Just days later on December 10, 1832, Jackson issued a stern rebuke of South Carolina’s position and its blighted view of the U.S. Constitution in his “Proclamation to the People of South Carolina.” Jackson demolished the perverse notion that individual states somehow maintained a veto over powers constitutionally given to the national government. And he destroyed Calhoun’s “compact of states” myth by reviewing the history and purpose of the Constitution itself. South Carolina’s claimed powers of nullification and secession, President Jackson insisted, were illusory:

The unity of our political character (as has been shown for another purpose) commenced with its very existence. Under the royal government we had no separate character; our opposition to its oppression began as UNITED COLONIES. We were the UNITED STATES under the Confederation, and the name was perpetuated and the Union rendered more perfect by the federal Constitution. In none of these stages did we consider ourselves in any other light than as forming one nation. Treaties and alliances were made in the name of all. Troops were raised for the joint defense. How, then, with all these proofs, that under all changes of our position we had, for designated purposes and with defined powers, created national governments-how is it that the most perfect of these several modes of union should now be considered as a mere league that may be dissolved at pleasure? It is from an abuse of terms. Compact is used as synonymous with league, although the true term is not employed, because it would at once show the fallacy of the reasoning. It would not do to say that our Constitution was only a league, but it is labored to prove it a compact (which, in one sense, it is), and then to argue that as a league is a compact, every compact between nations must, of course, be a league, and that from such an engagement every sovereign power has a right to recede. But it has been shown that in this sense the States are not sovereign, and that even if they were, and the national Constitution had been formed by compact, there would be no right in any one State to exonerate itself from the obligation. [Emphasis mine.]

President Jackson fully intended to enforce that obligation on the states, by military means if necessary. In March 1833, Jackson urged Congress to pass what became known as “The Force Act.” The bill empowered the President to relocate customs houses and to require that customs duties be paid in cash. It also authorized the Commander-in-Chief to “employ such part of the land or naval forces, or militia of the United States, as may deemed necessary” to protect customs officials and enforce collection of tariffs.

Mercifully, the much-feared confrontation between the United States a of America and the renegade state of South Carolina never came to pass. A Compromise Tariff of 1833 was worked out by protectionist Kentucky Senator Henry Clay and blessed by Calhoun to gradually reduce the import tariff over time. With that, South Carolina withdrew its Ordinance of Nullification, though it then declared its nullification of the Force Act whose terms no longer necessary.

Though the final reckoning was averted in 1833, the Southern states nevertheless maintained their supposed rights of nullification and secession in defense of their “peculiar institution” of slavery. But the Civil War and the subsequent passage of the 13th, 14th and 15th Amendments to the Constitution cemented—and forever changed--the supremacy of the federal government. (There’s a reason why after 1865 we’ve said “The United States is” as opposed to “The United States are.”)  As the late Justice Antonin Scalia explained in 2010, “If there was any constitutional issue resolved by the Civil War, it is that there is no right to secede.” The Supreme Court agreed in its 1869 ruling (Texas v. White):

“The union between Texas and the other States was as complete, as perpetual, and as indissoluble as the union between the original States. There was no place for reconsideration or revocation, except through revolution or through consent of the States.”

Those who today argue that Texas may nullify federal immigration law are as wrong about the law and the history as those deranged few clamoring for Texas secession from the United States. Announcing its lawsuit against Texas and its Senate Bill 4, the Justice Department cited the U.S. Constitution’s Supremacy Clause and Foreign Commerce Clause:

The Constitution assigns the federal government the authority to regulate immigration and manage our international borders. Pursuant to this authority, Congress has established a comprehensive framework governing the entry of noncitizens into the United States and the removal of noncitizens from the country. Because SB 4 is preempted by federal law and violates the U.S. Constitution, the Justice Department seeks a declaration that SB 4 is invalid and an order preliminarily and permanently enjoining the state from enforcing the law.

With its growing body count at the border, Texas is not merely putting people’s lives at risk. By erecting its own border fortifications and preventing U.S. border patrol personnel from accessing the Eagle Pass crossing point, Texas is unconstitutionally flouting the law of the land. And as Will Bunch reminded readers, among the federal remedies available to President Biden now is the same one President Eisenhower chose in 1957 for Little Rock after Arkansas refused to desegregate its schools as required by Supreme Court’s unanimous ruling in Brown v. Board of Education. When the 14th Amendment declares “no state may deny” any person equal protection of the laws, Ike concluded, it meant what it said.

After the stalemate dragged on for nearly three weeks that September, a reluctant Ike finally issued an executive order that federalized the Arkansas National Guard, forcing its troops to follow U.S. military command and allow the nine students to enter the school. For good measure, the 34th president invoked the Insurrection Act of 1807 and called in the storied 101st Airborne Division to initially escort the trailblazing Black students. Although Eisenhower held fairly retrograde personal views on race, history has judged his move as an important forward step in the long slog toward integration.

This new Nullification Crisis of 2024 provoked by Texas Governor Abbott and his Neo-Confederate Republican allies must end with a robust display of federal power. While the courts work through the ongoing legal challenges to the outrages from Texas, President Biden could nationalize the Texas National Guard, enable the return of federal border control personnel and the dismantling of the concertina wire. Threats of violence from the Lone Star State or its residents must be met with an overwhelming U.S. military presence. One hundred ninety-one years after America’s first Nullification Crisis came to a head, the dangerously wrong and potentially fatal ideology behind must be crushed once again.

Of course, Congress could avoid the looming showdown by passing a compromise measure, just as it did in 1833. But thanks to Donald Trump and his closest supporters on Capitol Hill, that kind of compromise is now further away than it was only 48 hours ago. They don’t want a resolution at America’s border, but a wedge issue instead.


Jon Perr
Jon Perr is a technology marketing consultant and product strategist who writes about American politics and public policy.

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