Archive for the ‘Law’ category

The Nullification Amendment

November 1, 2009

Federalism describes a system of government in which power is divided between a central authority and constituent states.  Although born a constitutionally-limited, federalist republic, America has seen a shift in the balance of power away from the states and toward the federal government.  Centralizers from Hamilton and Marshall, to Lincoln, Wilson, Hoover and FDR, and including just about every president in the modern era, along with their enablers in Congress and the Supreme Court, have fought to expand federal power.  What little power the states now enjoy is maintained at the behest of a federal government that can override practically any state law.

Government gone wild

During the past year Congress has socialized healthcare, nationalized automakers, swallowed the student loan industry, and moved to cap energy production.  In the face of exploding debt, they’ve ratcheted up annual spending to $3.7T—a jaw-dropping $1.5T more than will be squeezed out of an already overtaxed citizenry.  They tax everything:  income, earnings, capital, imports, gasoline, plane tickets, alcohol, tobacco, even inheritances.  The Federal Reserve churns out new money, driving up prices, and the IRS taxes you on the difference.  They regulate everything, from what you eat to what you drive to the types of light bulbs you can buy.   Complying with their ever-expanding maze of rules costs billions, stifles productivity and destroys wealth.

It should come as no surprise that the federal government continues to exceed its authority—there’s no mechanism in place to stop it.  The Constitution provides for checks and balances among the branches (e.g., the veto, impeachment, judicial review, appointments) but makes no provision for the states to check federal power.  The Supreme Court, itself part of the federal government, has the final say on all constitutional questions, including those that determine how power is distributed between the states and federal government.  Considering that Supreme Court justices are appointed by the president and confirmed by the Senate—with zero input from the states—it’s no wonder the Court has become a rubber stamp for federal excess.

An amendment to check federal power

If there’s to be any hope of restoring federalism, the states must be given a way to check federal power directly.  With Congressional approval at record lows, it might be time to revisit the idea of a Nullification Amendment.  Basically, this amendment would allow a majority of state legislatures—who operate outside of and apart from the culture of corruption that pervades Washington—to nullify any federal statute or Supreme Court decision.

Not only would it be easier to overturn unconstitutional laws, a nullification amendment could help deter passage of polarizing legislation.  It took an outrageously deceptive misinformation campaign and several conspicuous vote-buying scandals to pass ObamaCare by razor-thin margins.  Most Americans now favor its repeal.  Earmark bills are extremely unpopular, and TARP was opposed by both liberals and conservatives.  No Child Left Behind has hamstrung states and local communities with so many unfunded mandates that even conservatives no longer approve.  Faced with the sting of nullification, the majority party might not be so eager to ram these sorts of things through.

Perhaps most importantly, the threat of nullification would dilute the influence of special interests.  Unions and corporations are less likely to purchase special favors if the votes they buy can be more easily overturned.  With nullification looming, would the pharmaceutical and health insurance companies have pumped in so much money to pass ObamaCare?  Would billionaire bankers have contributed tens of millions to secure taxpayer bailouts from Chris Dodd and Barney Frank if those bailouts could have been nullified just months or possibly weeks later?

Tyranny of the minority?

What about the objection that a nullification amendment gives too much power to too few people?   The 26 least populous states, after all, compose just 18% of the population.  However, consider the political orientation of the 10 smallest:  Wyoming, Vermont, North Dakota, Alaska, South Dakota, Delaware, Montana, Rhode Island, Hawaii, and Maine.  5 red, 5 blue.  And they’re geographically dispersed.  How likely is it that these states would agree on, well, anything?  And if such a politically diverse group did agree to nullify a particular statute, isn’t it probably for the best?

Theoretical alliances aside, what about likely alliances?  The 26 states trending the most Democrat over the past 5 presidential elections represent about 63% of the population, while the 26 states trending the most Republican represent about 45%.

What if alliances are driven by the composition of state legislatures rather than by presidential voting trends?  Democrats currently control 27 state legislatures, Republicans 15, while 8 are split.  Of the 27 state legislatures controlled by Democrats, let’s say Mississippi is most likely to spurn a liberal alliance.  The remaining 26 states represent about 51% of the population.  On the other side, Republicans don’t control enough state houses to form a strictly partisan alliance.  Even if every GOP-controlled state legislature and every split legislature joined, they would still be 3 short.  Of the remaining states, the 3 trending most Republican are Mississippi, Alabama, and North Carolina.  If they crossed over, the resulting 26 state conservative alliance would represent about 53% of the population.

Unless the political landscape changes dramatically, it’s extremely unlikely that states representing only a small share of total population would band together.  Whether using presidential voting trends or party control of state legislatures to predict the formation of alliances, states representing a majority or near-majority of the population would need to cooperate in order to nullify federal laws.

Likelihood of Passage

There are two ways to amend the Constitution, by convention (which has never been done) or a two-step process that requires 2/3 majorities in both houses and ratification by 3/4 of the states.  It’s almost inconceivable that a Congress controlled by Democrats, whose devotion to big government knows no bounds, would pass an amendment that checks federal power.  Republicans, on the other hand, are more open to limited government reforms.  Could a Democrat minority eager to check Republican power contribute enough votes to carry the amendment?  If Republicans make gains over the next two election cycles and Democrats maintain control of enough state legislatures, perhaps we should find out.

And if it did manage to pass Congress, how likely is ratification?  As things stand, if states were to break along party lines, then at least 11 state legislatures controlled by Democrats would need to ratify.  This means purple states like Iowa, Wisconsin, New Mexico and Pennsylvania would have to get onboard.  Although unlikely, it could happen if the idea of nullification generates popular, bipartisan support.  Whether such support could in fact materialize depends on whether most people would be willing to give up controversial laws they support in exchange for the power to veto controversial laws they despise.


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