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The following article was also published at the Tenth Amendment Center.
There has been plenty of chatter in the past year about “state’s rights” (more correctly termed “state’s powers”, as political entities do not themselves have any rights) and the tenth amendment to the Constitution which provides that any power not expressly delegated to the federal government is reserved to the states, or to the people. Concerned citizens of all political persuasions have rallied around the banner of federalism to promote abolishing or restricting federal programs and replacing them with state-based alternatives, or nothing at all.
For all the noise being made by the cacophony of individuals frustrated with the federal government, however, few either understand or are willing to embrace the two key components that would make their goals a reality, rather than a slogan painted on a banner for a tea party protest. In order to demand—not ask—that the federal government limit itself to its constitutionally delegated authority and nothing more, states themselves must have representation in the federal government, and they must nullify any federal law that is clearly outside of the scope of federal jurisdiction.
The first topic has been briefly addressed previously here, but a summary is perhaps important. Prior to the ratification of the 17th amendment, states had representation in the federal government through one of the compromises produced during the Constitutional Convention: the bicameral legislature. Whereas the House of Representatives was comprised of congressmen elected directly by the people and representing their specific interests, the congressmen elected to the Senate, in pairs for each state regardless of that state’s population, were elected by the state legislatures, and it was to these political bodies that U.S. Senators were beholden. As such, the Senate was the congressional representation for states themselves, where their interests could be promoted and their concerns made known.
After 1913, however, the Senate was turned into another body accountable only to the people directly, thus removing the representation states once enjoyed. Since that time, the several state governments have had no voice in the federal government, and now find themselves in the middle of a stronger relationship forged between the federal government and all citizens directly.
Were U.S. Senators still elected by and accountable to the state legislatures, they would exist in a preventative capacity, working to vote down any bills that were deemed to be against a state’s interest, or more importantly, an extra-constitutional power grab on a matter not found under the federal government’s purview. That Senators do not now have any allegiance to the state governments themselves—in other words, this first option no longer even being an option—implies that the second opportunity for helping maintain the balance of federalism becomes all the more important.
To some, nullification is a scary word. The idea of standing up to the federal government in any way is similarly scary for many, but this does not mean that the ability to do so should be eliminated. Nullification implies simply saying “no” when the other party has the moral authority to do so. Imagine a parent telling a child “no” when he tries to take a toy that is not his, or an employer saying “no” when the employee tries to take the company car on vacation. As it relates to government, state governments created the federal government and delegated to it limited and specific authority. Anything beyond these powers is a usurpation, and thus the states, like a more powerful parent, retain the ability to simply say “no” when it becomes necessary to check a wrongful action.
As the efforts of state-elected Senators would serve as a preventative measure, the existence and use of nullification is a reactionary power to be used if and when un-constitutional laws have already been (or will soon be) implemented. It is important to remember that the states existed before, and created, the federal government. The Constitution is, at its core, a contract between the states and the legal codification of powers they have voluntarily assigned to their creation, the federal government. If and when there is a breach of contract by the created entity, the states, as sovereign and superior entities, must have (and use!) a mechanism whereby they can reject the proposed action.
Nullification is a form of civil disobedience—a powerful statement of political non-compliance in the face of aggressive, self-aggrandizing government. Its origins date back to Thomas Jefferson and James Madison with the Kentucky and Virginia Resolutions, and has been used from time to time ever since. For example, in 1833 South Carolina nullified the (federal) Tariff of 1828 which it deemed un-constitutional because rather than being a (constitutional) tariff to raise revenue, it was specifically created as a protective tariff to manage and protect certain industries. A few years prior, New England states banded together and contemplated nullification as well, during the Hartford Convention of 1814, in response to the War of 1812 and the disproportionate damage inflicted upon local commerce due to British blockades. Nullification was used in the personal liberty laws responding to the federal fugitive slave laws, as a method of pushing back against the federal government’s undue expansion of authority.
Though it went out of vogue for some time, the doctrine of nullification has come back with a vengeance, and has found its way into public policy. Whether the discussion rests on REAL ID, “Cap and Trade”, health care, firearms regulation, or a number of other controversial topics, several states have already passed legislation giving the federal government the proverbial middle finger. It may not be referred to as nullification by the state legislatures or the sponsors of the legislation, but make no mistake: states are rediscovering the power of “no” and starting to resist the century-long tradition of federal omnipotence.
States have lost their voice in the federal government, and thus have no reassurance that laws will not be passed that encroach upon their constitutionally-reserved powers. History amply demonstrates the plain fact that the federal government recognizes no restrictions, and once an objective is established, it will do whatever is necessary to achieve it, states and subordinate concerns be damned. As such, the remaining tool of nullification must be increasingly protected, and judiciously implemented, in order to begin effectively fighting back against the federal government and restoring rights and powers that were once commonplace, but now have become an endangered species.
Un-constitutional federal legislation: just say no.