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December 20, 2010

"Zombie" Constitutionalism

Talk about bad and shopworn ideas ("zombies" to use Paul Krugman's nice formulation): the proposed amendment that would enable states to repeal any federal statute if approved by two-thirds of the state legislatures is a notion that came and went, in various forms, in the 18th and 19th centuries. First it was called Nullification, and then it morphed into the Secessionist craze whose 150th anniversary we are about to commemorate. The Civil War was supposed to have relegated those ideas to the proverbial dustbin of history.

This nutty notion -- if adopted -- would transform the entire structure and character of our constitutional system. The difference between the Constitution (which supporters of this amendment say they revere) and its predecessor -- the Articles of Confederation -- is that the federal government under the Constitution framed at Philadelphia in 1787 is an independent entity whose laws act directly upon the people and is not dependent upon the approval or disapproval of the states. To provide states with a mechanism for disapproving of federal laws would not only undermine the institution of Judicial Review, but it would fundamentally alter the architecture of American government as we have come to know it in the past two hundred years.

This is a very bad idea whose time came and went centuries ago. It should be so regarded.

George Dargo

1 comment:

  1. I agree with you professor. Now, let's broach a historic though some may say radical idea. Should we go back to a pre-Seventeenth amendment U.S. Constitution? As you know, The Seventeenth Amendment established direct election of United States Senators by popular vote. Prior to 1913 Senators were elected by each of their state's legislature and sent to Washington. If the Senator's votes didn't please the State Legislature, the Senator's tenure would be short lived. The State Legislatures are, in theory anyway, more directly accountable to that state's electorate. To my mind, this served as a kind of state nullification as well. The problem of a Corporate Sponsored U.S. Congress, is especially egregious in the U.S. Senate. Every Senator needs to raise millions of dollars of mostly corporate money, to pay for political ads to keep his seat. Given that the U.S. Supreme Court's recent ruling in Citizens United v. Federal Election Commission, gave foreign and domestic corporations the right to essentially buy and sell politicians at will. A more local legislative appointing power as first crafted by the Founding Fathers seems a perfectly reasonable remedy. And has always seemed to me the reason that Article I, § 3, Clauses 1 and 2 of the Constitution was put there in the first place.