State Nullification Of Federal Law

Trigger

I just (9/6/2013) came across this commentary by the Cato Institute titled “The Limits of Nullification” published on ???? (date is missing). It discusses recent legislation by Missouri and Montana to push back on federal gun (control) legislation.

Theory Of Nullification

The above commentary summarizes the theory of nullification as follows (emphasis added):

“… the theory of nullification, which has its roots in the late 18th and early 19th centuries and holds that the federal government exists by the will of the states, and that states therefore have the right to decide which federal laws are constitutionally valid within their borders.”

I agree that the federal government and the U.S. Constitution exist only because of the will and the consent of the then existing states. I don’t believe that the majority of the Founders ever conceived a big constantly expanding federal government as it exists today.

From this follows that secession of individual states from the Union is a valid option to disapprove of overbearing federal government intrusion.

Useful Nullification

The argument is easily made against a single state to opt for nullification of federal laws. It would be difficult indeed if every state was given the choice whether to abide by or to nullify any given federal law.

How about if a significant number of states (e.g. >= 10%) jointly declare to nullify a federal law? Then, the expressed will of the people of these states cannot be so easily dismissed.

The U.S. Supreme Court Is Not Enough

Opponents of nullification naturally refer to the SCOTUS to settle disputes between individual states and federal law.

However, over the almost 240 year history of the USA, the SCOTUS has substantially decided in deference of federal legislation. It has more often than not and to an ever larger extent preferred or defended federal legislation over state sovereignty. SCOTUS rarely nullifies any legislation coming out of the U.S. Capitol just about 500 feet away. Thus, today federalism exists in the USA rather by name only.

More Checks And Balances

As the history of the USA so prominently shows, the existing constitutional checks and balances are not enough to ensure limited and small federal government.

Besides, the SCOTUS it should also be possible for a group of states to jointly nullify federal laws. Thus, a new amendment to the U.S. Constitution would be necessary.

What Else?

The 17^th Amendment of 1913 to the U.S. Constitution should be repealed. It was a huge mistake to have the U.S. Senators to be directly elected by popular vote. I am a strong believer that this Progressive Era reform was anything but a reform. It reduced state influence and helped the federal government to become bigger to the liking of the proponents of Progessivism. It flies smack in the face of the Founders that so carefully crafted the U.S. Constitution.