The alternative to repealing the Seventeenth Amendment is “nullification”! Nullification, assuming nullification does not become a Constitutional Amendment, means that any state legislature can declare an act, regulation, or a law of the federal government not supported by the powers afforded the federal government, to be unconstitutional and nullified under the powers granted the states in the tenth amendment
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
This has been tried, but is not directly found in the Constitution. Nullification, that is not “constitutionalized”, as put forth in the previous chapter, would be a sticky event. There is precedent provided by and arguments for nullification from two founders.
The first appearance of the right to nullify occurred in 1798, and the two collaborators in the Resolution of ’98 were Thomas Jefferson and James Madison. This duo should bring gravitas to the argument. Madison wrote of the right to nullify in the Virginia Resolution of 1798, wherein his document was adopted by the Virginia General Assembly and agreed to by the Virginia Senate in that same year. These were a nullification of the Alien and Sedition Acts passed by Congress and signed into law by President John Adams.
Jefferson also very eloquently and clearly wrote of the right of a state to nullify in the Kentucky Resolution of 1798, where-in he cited Article I, Section 8’s enumerated powers and the tenth amendment. This collaboration, but mostly Jefferson resolution was adopted by the Kentucky legislature in the same year.
In time and separately, the Alien and Sedition Acts were found to be unconstitutional by the Supreme Court of the United States.
Nullification is a solution! Two very key founders were in favor of nullification. James Madison was a principal architect of the Constitution and the Bill of Rights. He knew and understood better than any human on the planet, the intended relationship between a state, the states, and the federal government? Yes, Madison did late in life indicate that he did not intend for nullification, but his reasoning and words of the Resolution of ‘98 and Jefferson’s nullification argument can be used to prove that something nullification-like does fall to the states.
Nullification was also authored during the War of 1812 and with the Embargo of 1807 through 1809. Oddly enough, Jefferson was President for the Embargo; the federal government enacted an embargo of shipping, prohibiting all American ships from leaving American ports bound for any foreign port. This was to combat acts from Britain and France against America’s neutral rights on the seas. These are not the only examples of nullification in the history between the states and the federal government. The term better suited to getting nullification as an amendment is Interposition, utilized by Mr. Jefferson.
Read Thomas Jefferson’s reasoning at: http://jeffersonpapers.princeton.edu/selected-documents/kentucky-resolutions-1798