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A New Proposed Amendment to the Constitution Would Allow Federal Laws To Be Rejected. Don't Worry. There's No Way It'll Pass.

Gregory B. Hladky

December 29, 2010

Some Connecticut officials say the idea of giving state legislatures power to “nullify” federal law sounds like the kind of thing that helped trigger the American Civil War, and that this Tea Party-ish concept doesn’t stand a chance in hell.

State House Republican Leader Lawrence F. Cafero Jr. isn’t so sure.

He argues things are so bad right now for this state that nothing — not even something as radical as this idea — can be off the table.

“What might have seemed like something Connecticut would never engage in, like rejecting federal law, well, I have a feeling we’re going to be talking about it,” Cafero says.

A proposed amendment to the U.S. Constitution has already been introduced in Congress. It would allow a federal law passed by Congress and signed by the president to be rejected if two-thirds of the 50 state legislatures voted to do so.

The idea has gotten support from legislative leaders in 12 states and the incoming Republican House Majority Leader, U.S. Rep. Eric Cantor. Many of its advocates are also big-time critics of the new federal health care reforms, which they see as an unwarranted intrusion by Congress into matters that should be left to the states.

The problem for advocates of this radical plan is that to win approval of an amendment to the Constitution, it has to be approved by both the U.S. House and Senate and win passage by 38 state legislatures.

“That is dead on arrival,” declares George Jepsen, our new state attorney general-elect. “It’s an attempt to revive the long-discredited concept of nullification.”

“It has no chance,” Jepsen adds. “This would represent the most fundamental undermining of the Constitution since it was adopted.”

“It is one of the most dangerous and irresponsible things that could happen to this nation,” says state Senate Majority Leader Martin M. Looney of New Haven. “It was a precursor to the Civil War.”

The concept of nullification, that states could reject federal laws they didn’t agree with, was intimately associated with the attempt by southern states to maintain slavery in the years leading up to the Civil War. The idea didn’t sit too well with the rest of the U.S. or Congress, and its failure eventually led to secession and the creation of the Confederacy — another idea that didn’t exactly work out.

Those historical failures haven’t deterred Tea Party types and some conservative legal scholars from reviving the idea. They argue Congress and the federal government are simply out of control, forcing states to spend money they don’t have and to adopt programs they don’t want.

It’s not only the extreme right-wingers who are willing to consider this sort of radical concept. Even moderate Republicans like Cafero are open to at least talking about it.

“We are hurting,” Cafero says, looking ahead to the nasty-ass choices Connecticut lawmakers will face as they search for solutions to an estimated $3.4 billion deficit. “We can’t afford to go on like this any longer.”

According to Cafero, desperate states like Connecticut took whatever federal stimulus money Congress was willing to offer in this recession. He says it was only down the road that many states realized there were major strings attached that would compel them to keep spending loads of state money to sustain programs after the federal cash dried up.

“When this [federal] money disappears, we’re left holding the bag,” says Cafero, arguing states like Connecticut are going to have to consider all kinds of radical actions, maybe even the nullification idea. “Every idea is on the table,” he says.

Critics like Jepsen see a huge irony in the fact that such a massive constitutional change is being proposed by ultra-conservatives and Tea Party types who consider themselves “strict constructionists” and insist upon a rigidly limited interpretation of the Constitution as it was originally written.

Of course, this nullification thing ain’t going nowhere because it would require Congress to agree to drastically limit its own power. And when was the last time you saw a political miracle like that?