“REPEAL AMENDMENT” JUST DOESN’T GO FAR ENOUGH


The problem is that the national government of the United States, including its constituent entities, the Congress, the executive branch, the judicial branch and all of its bureaucracies, is daily trampling on the rights and liberties of Americans, and is out of our control.

Randy Barnett and William J. Howell, in an article entitled The Case for a “Repeal Amendment” that appeared September 16, 2010, in The Wall Street Journal and was reprinted on the Cato Institute website, make their case for a proposed amendment that the Virginia legislature will consider. They write:

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional “Repeal Amendment.” The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

They go on to explain that

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

They summarize their case as follows:

The Repeal Amendment would help restore the ability of states to protect the powers “reserved to the states” noted in the 10th Amendment. And it would provide citizens another political avenue to protect the “rights … retained by the people” to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

I have no quarrel with the intent of such a proposed amendment; indeed, I proposed a similar amendment in my blog post of October 18, Prescription for (Real) Hope and Change, that would provide for, upon the concurrence of three-fourths of the state legislatures, a veto by the states of Congressional spending in excess of a set percentage of GDP (it would be part of a set of proposed amendments). But the proposed “Repeal Amendment” would not go far enough to address the problems with our federal system. It is clear that a provision allowing Congress to re-enact a repealed measure is just a sop to Congress to make it look upon the amendment more favorably. Only a far-reaching set of amendments to the Constitution like the ones I propose ultimately will curtail the ever-expanding power of the national government and its use of that power to take away our liberty.

Barnett and Howell acknowledge that in writing the following:

The Repeal Amendment alone will not cure all the current problems with federal power. Getting two-thirds of state legislatures to agree on overturning a federal law will not be easy and will only happen if a law is highly unpopular.

My hope is that influential politicians at the state and national levels will begin to think outside the box and consider proposing an effective set of amendments to put things right. After all, considering how difficult it is to get one amendment adopted, why not go for broke and try for a whole set?

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