Comment on Victor Davis Hanson, The Corner - National Review Online: Federal Nullification Is a Bad Idea

Federal Nullification Is a Bad Idea - By Victor Davis Hanson - The Corner - National Review Online

Nullification is politically toxic because it is associated with secessionism and pre Civil War slavery. Fairness or even exactitude in legal theory have little to do with that.

Before the Civil War Nullification was wrong because it was unnecessary. The Constitution already had an adequate built in safeguard to prevent Congress from riding roughshod over state interests. Senators were appointed by the States and could act as their Ambassadors to DC. If over a third of the States agreed to block something, and their ability to influence the Senators they appointed was an internal problem for State politicians, then they could block Federal action. That was true even if it was action that was supported by the majority of the American people. Senatorial Nullification failed to prevent Secession and the Civil War because the Southern States could not get free citizens in the North to enforce the Fugitive Slave Act and they could not stop their slaves from running away.

During the Progressive Era the XVIIth Amendment was enacted establishing direct elections for US Senators. That destroyed the role of the Senate as a brake on the Federal government and agent of the States. The States were reduced from sovereign entities that provided a check on the Federal power to mere administrative cogs in a centralized apparatus.

We should repeal the XVII Amendment. Doing so we are told will return us to the bad old days of corrupt machines controlling the Senate and give power to the unsavory and corrupt incompetents who populate most State Houses. That is true. The current system has not eliminated the corruption and cronyism, if anything it has allowed machine based electoral fraud to penetrate more directly into Congress.

The proper roles of the Federal and State governments is to keep watchful eyes on each other, spotting and prosecuting corruption as they find it. I am confident that if they stood jealous and independent of each other each would spot many flaws in the other. The proper domestic role of the Federal government should be investigating and prosecuting state legislators. The proper role of the States in the central government is to have their agents the Senators investigating and blocking abuse by the central authority.