For some reason, some conservative commentators keep propagating the historical lie that James Madison “rejected nullification.” James Madison did no such thing.
Even while opposing a bastardized proposal for nullification created out of thin air in
Carolina, he still supported nullification as a
Madison’s “notes on
nullification” during the later days of his life, he explicitly rejected a very
specific doctrine of nullification proposed by South Carolina. But during the same time
period, he referred to “nullification…as a natural right”
This brings us to the expedient lately advanced, which claims for a single state a right to appeal against an exercise of power by the government of the United States decided by the state to be unconstitutional, to the parties to the constitutional compact; the decision of the state to have the effect of nullifying the act of the government of the United States, unless the decision of the state be reversed by three-fourths of the parties.
The distinguished names and high authorities which appear to have asserted and given a practical scope to this doctrine, entitle it to a respect which it might be difficult otherwise to feel for it.
If the doctrine were to be understood as requiring the three-fourths of the states to sustain, instead of that proportion to reverse the decision of the appealing state, the decision to be without effect during the appeal, it would be sufficient to remark, that this extra-constitutional course might well give way to that marked out by the Constitution, which authorizes two-thirds of the states to institute and three-fourths to effectuate an amendment of the Constitution, establishing a permanent rule of the highest authority, in place of an irregular precedent of construction only.
But it is understood that the nullifying doctrine imports that the decision of the state is to be presumed valid, and that it overrules the law of the
unless overruled by three-fourths of the states.
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