A Nullification That Failed
Thomas Allen
From the mid-1950s to the mid-1960s, the Southern States failed in their attempt to nullify federal acts that forced desegregation and integration, following the recommendations of Madison, which the Tenth Amendment Center (TAC) endorses. Not only did the Southern States dislike these acts, but most of them were unconstitutional.
In Brown v. Board of Education (1954), the US Supreme Court based its desegregation ruling primarily on personal biases, sociology, and politics, with the US Constitution playing only an insignificant role. When Congress proposed the Fourteenth Amendment, it did not intend for it to apply to schools. Shortly after its ratification, Congress established a racially segregated school system for the District of Columbia.
According to TAC, Madison identified four appropriate methods that a State and “we the people” of that State could use to oppose and nullify an unconstitutional federal act or even a disliked federal act. A discussion of these four follows.
1. Popular protest by the people. “We the people” of a State may vigorously and vociferously protest against an unconstitutional or even disliked federal act. Southerners protested resolutely and vehemently against forced federal integration acts, but the federal government successfully suppressed their protest. Their protest did nothing more than bring more federal oppression and less liberty.
2. Refuse to cooperate with the federal government. Wholeheartedly, the Southern States not only refused to cooperate with the federal government, but they also interfered with its enforcement of federal integration acts. With great fervor, they opposed federal integration acts. Their disobedience and lack of cooperation did nothing except invigorate the federal government’s resolve to become more tyrannical and oppressive.
3. Formal protest by the governor. Few governors have ever protested unconstitutional acts of the federal government as did Governor Faubus of Arkansas and Governor Wallace of Alabama. All their protest did was cause the federal government to use military force against Arkansas and Alabama to quell their protest. Other governors protested, but to no avail. Their protest led to more subjection and despotism.
4. Legislative action. Legislative action includes resolutions formally protesting the federal government’s usurpation and unconstitutional acts. Legislatures may forbid agents of the State and its local governments from cooperating with the federal government in enforcing the federal act. It may even include interfering to prevent the federal government from enforcing an unconstitutional federal act. However, legislative action does not extend to preventing federal agents from enforcing unconstitutional federal acts with imprisonment or fines. State legislatures of the Southern States took actions to thwart the enforcement of federal integration acts, short of jailing federal agents. Again, the results were the same: more oppression, tyranny, and loss of liberty.
Madison believed that if adjoining States protested against a federal act and sought to nullify it with the aforementioned actions, their actions would cause the federal act to become void. Madison was wrong. The Southern States were unified in their protest of the federal government’s integration acts. Yet, their unity did nothing to stop the federal government’s tyranny.
The Southern States did not resort to jailing federal agents attempting to enforce school integration. However, this action would have also failed because the philosophy of "might makes right" dominated the country. (With the possible exceptions of the Cleveland, Harding, and Coolidge administrations, this philosophy has been the dominant governing principle of the federal government since 1861 — even superseding the Constitution.) Since the federal government used military force against Arkansas and Alabama in response to much milder forms of nullification, it would have used even greater force against a State that jailed its agents. (If a State had nullified these federal acts following Calhoun’s philosophy instead of Madison’s, these acts would not have applied in the nullifying States. Consequently, the federal government could not have lawfully used the military to enforce them because they did not exist in the nullifying States. However, since the federal government ceased following the Constitution in 1861, it would have used troops anyway.)
As a result of the Southern States’ failure to nullify the federal government’s integration acts, America’s education has deteriorated significantly. Worse, their defeat gave birth to racial quotas, political correctness, diversity-equity-inclusion, wokeism, and ultimately the death of the White race, Christianity, and Western Civilization. Such has been the goal of the Puritan Yankees since the mid-nineteenth century. Only the South stood in the way of this goal; that is why Lincoln and the Republicans had to destroy the South.
Madison may have wept over the utter defeat of the Southern States’ failure to nullify these unconstitutional federal acts. However, based on inferences from its writings, TAC has not.
However, the Southern States’ attempted nullification did lead to two of the three wars that the United States have won since World War II: Eisenhower’s war against Arkansas, Kennedy’s war against Alabama, and Reagan’s war against Grenada. Defeating these three world superpowers is the height of US military prowess in the post-World War II era.
Since Lincoln’s War, States have been highly successful at nullifying federal acts against vice, e.g., prohibition, which the Constitution authorized the federal government to prohibit the manufacturing, sale, and transportation of intoxicating liquors, and marijuana, which the federal government has no constitutional authority to outlaw or regulate. However, the nullification of most unconstitutional federal acts has been highly unsuccessful. The only nullifying acts that States are allowed are unenforceable protests and resolutions, and not participating with the federal government in enforcing federal laws (even this one seems to be fading under Trump).
Copyright © 2025 by Thomas Coley Allen.
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