Repairing a Flaw in the Constitution

The recent book Nullification: How to resist Federal Tyranny in the 21st Century by Thomas E. Woods, Jr. attempts to resuscitate the idea of State nullification of Federal laws. The idea arose almost immediately after the establishment of the US as a constitutional republic. It was proposed originally in the Virginia Resolutions of 1798 and the Kentucky Resolutions of 1798 and 1799. The proximate cause of these resolutions was the Alien & Sedition Acts passed by Congress and signed by President John Adams in 1798. The nullification cause was taken up again by Connecticut’s Governor and Legislature in 1809, championed by John C. Calhoun (most famously in his Fort Hill Address in 1831) and resurrected by the Wisconsin Legislature in 1859. But its death knell was sounded by Lincoln and the Civil War, and Woods’ well-written book is unlikely to revive it.

The idea is that if the Federal Government behaves in a manner inappropriate to its authority under the Constitution, then the States – as the sovereign entities that agreed to the compact embodied in the Constitution and therefore as the parties that founded the Federal Government – have the right and the duty to protect the Constitution by pointing out said bad behavior and refusing to abide by the offending law or regulation. It is a perfectly logical argument. If a group agrees to establish a special committee to administer some joint interests of the group, and if the committee oversteps the jurisdiction of its charter, then the members of the group are free to annul the offending action and even to suspend the charter of the committee if the group deems it appropriate to do so.

However, the principle of State sovereignty trumping Federal law envisioned in an individual State declaring a Federal law or regulation unconstitutional, and therefore void, is not coming to fruition in these United States – for at least three reasons:

  • The issue has been settled for 150, and maybe 200 years. The people have not bought into the idea of nullification. It would require a revolution for that to change.
  • As discussed in Woods’ book, Federal supremacy over the States has been justified by three clauses in the Constitution – the general welfare clause, the interstate commerce clause and the supremacy clause. The people have accepted these interpretations and there is no hint of any change of attitude – at least not until recently.
  • Nullification is unworkable. Which States will nullify which Federal laws? What if one State nullifies a law, but another does not? What if States start nullifying numerous laws? Or parts of laws? Chaos might ensue. We would be back to the situation under the Articles of Confederation.

Nevertheless, although nullification is not going to happen, that does not mean that its proponents are not attempting to address a serious flaw in the Constitution. The idea that the entity, i.e., the Federal Government, set up in the compact into which the States entered when they ratified the Constitution, might overstep its bounds was certainly anticipated by some of the Founders. Alas, they made no concrete provision for dealing with the possibility. Moreover, soon after the Alien & Sedition Acts were passed, John Marshall arrogated to the US Supreme Court the ultimate authority to decide such issues. That authority has been accepted by the American people for more than 200 years. But this mechanism is also seriously flawed. The Supreme Court is an integral part of the Federal Government established by the States’ compact. Therefore, by vesting such an authority in the Court, the people have empowered the Federal Government to effectively police itself and its relationship to the States which established it. This is certainly a prescription for unwarranted (according to the Constitution) power accreting to the Federal Government – which is exactly what has happened. The Federal Government has grown enormously in size, power, budget, complexity, influence and also in arrogance. It runs roughshod over the States and has reached a point where many believe it is destroying the historical character of the nation. It willfully ignores the Constitution – the compact that established it. If this situation persists, the Republic as we have known it, and as it was conceived, is certainly doomed.

Some States have resisted. How have they done so? Generally, by suing the Feds in Federal Court. But by pursuing this course of action, the people are still asking the Federal Government to adjudicate a dispute to which it is a party. It’s not a fair fight. So how else might the States reassert their sovereignty – assuming that they still have any? That is not a frivolous comment. Who indeed is the Sovereign, the US or the States themselves? In 1787, the 13 States were individually sovereign, but via the Constitution, they delegated certain authority (in foreign affairs and in regulating affairs between the States) to the Federal Government. To a foreigner, the US is the Sovereign, but to the people of Maryland say, it is Maryland that was supposed to be the sovereign to which they owed allegiance as citizens. I doubt we can revive that understanding. But we can restore a modicum of State sovereignty at this point in the evolution of our nation with an alteration to the terms of the original contract – that is, with a Constitutional Amendment. Here is the content of a proposed Amendment that would do the job and which I believe would command broad support.

If two-thirds of the States declare a Federal law or regulation to be unconstitutional, then said law or regulation is null and void. A State declares a federal statute or regulation to be unconstitutional when one of the two following eventualities occurs:

·        Either two-thirds of the State Legislators (meaning, for each State, the totality of State Delegates and Senators) vote in session – with a simple majority —  to that effect; or

·        One half of the State legislators (with the same meaning as in the previous clause) vote in session – with a simple majority – to that effect, and one of the following obtains

o   The Governor of the State declares his agreement with the intent of the Legislators, or

o   A majority of the State Supreme Court’s members declare their agreement with the intent of the Legislators.

The Supreme Court would continue to rule on cases exactly as it does now. But its rulings would be trumped by the States declaring a Federal act unconstitutional and therefore null.

One further point: this Amendment presumes that an entire statute would be declared null, not pieces of same. An entire law or regulation would be nullified, even if only part of it was deemed the real offender. This would motivate Congress and the Executive branch to do a better job of writing their laws and regulations, and not to commingle unrelated issues in the same statute or regulation.
This article also appeared in The Intellectual Conservative at