Is the Repeal Amendment What We Need?

By on December 3, 2010 in Constitution, Featured, Federalism

by Gary Wood, Utah Tenth Amendment Center

Anytime there is any constitutional amendment proposed the first thing everyone needs to think about is basic. As Constitution Scholar Gary Alder says, “When you change your constitution you are altering your form of government.” He further states, “I can’t help but think that when amendments are proposed as readily hastily as they are these days without regard to the ramifications of those changes, it is like two doctors arguing that their method of performing a complicated operation is best—one because it takes less time and the other because it leaves a smaller scar—rather than sitting down together and discussing the interrelationship between the circulatory and respiratory systems and how the proposed operation can be performed without damaging either system. NO AMENDMENT SHOULD EVER be HASTILY DRAFTED or ONLY SUPERFICIALLY EXAMINED.”

There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights. However, every amendment since then has impacted our form of government, most in a negative way (19thAmendment, however ladies, was a good one).

In a move that the amendment’s author, Georgetown University Law Professor Randy Barnett, says will help restore the authority reserved to the states it initially appears this might be a good amendment. “This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states,” Barnett was quoted as saying by Andrea Stone. “Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.”

The Repeal Amendment is short and to the point, something indicative of a possibly good change. It does not have the infamous words that have haunted so many amendments since reconstruction, “Congress shall have power to enforce this article by appropriate legislation.” The text simply states;

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that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

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Knowing the growing pressure in many states to revive support for the 10th Amendment it is easy to understand why this is gaining such a positive response in Tea Party circles. Since being submitted Tuesday by Rep. Rob Bishop (R-UT) it has gained a lot of steam early. Rep. Bishop, founder of the 10th Amendment Task Force, called it a weapon in states’ quivers and alluded to this being one of several proposals to come. “I actually hope to have a series of statutes and amendments — several amendments and several statutes — that we can introduce this year,” Bishop said, “with the sole goal of not just cutting down the power of Washington to do things to people, but more importantly, is to empower states.”

Is it easier to empower states by creating a series of new changes to our form of government or to use the same passion, energy, and effort to repeal errors of past changes? Also, are we to believe Rep. Bishop, Cantor (R-VA), and other D.C. representatives when they say this amendment will check federal government while restoring power to the states and people as it was meant to be? Of course we are to believe this is the easiest and best way to restore order, after all these are Tea Party backed, grassroots politicians proposing these changes so we know it is OK to trust in their proposals, don’t we? As a matter of fact, we should be rallying at capital steps across the country with big signs and cheering grand cheers to our new defenders and their saving amendment…repeal~repeal~amending federal power~repeal~repeal~such an easy deal!

Excuse me if I sound a wee bit skeptical Rep. Bishop and Rep. Cantor. First, the repeal process, outlined in the amendment, does not consider one of the fundamental aspects of federalism our founders developed. It was a part of Article VI, Clause 2 and it was a necessary part for both vertical separations of powers and sound checks to work. Yes, I am referring to the often court abused, media misconstrued area commonly known as the Supremacy Clause. Before you jump up and down and scream this Wood fellow has no clue what he’s typing about I fully understand only federal legislation made “in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The key word, Pursuance, was so important it was capitalized (our framers equivalent to bold type today).

Second, the amendment requires 33 (34 if you round up) states to be opposed to an item. What will this do for the important state mechanism the 10th Amendment does help illuminate, the Doctrine of Interposition? With the common threat of nullification of unconstitutional laws, would this be all but negated by the repeal amendment? If the 2/3 rule is not met then all states would be stuck with an unconstitutional law. Historically, far less than 2/3 of states have adopted the same Resolutions of Interposition and yet the federal, or general, government has backed down in challenges to their wayward laws. True 10th Amendment stances, based on sound nullification doctrine, works even today. Medical marijuana is just one of many growing examples of this.

What about laws passed by the general government that are constitutional, based on the original meaning? If enough states can rise against constitutional laws they too can be overturned, whether passed ‘in Pursuance thereof’ or not. This amendment truly alters the vertical checks and balance provided under the original meaning. In theory this amendment could weaken the federal level to a point of it being little more than it was under the Articles of Confederation. Although the federal government is far too large and intrusive today we will not find ourselves ‘securing the Blessings of Liberty to ourselves and our Posterity’ by turning the dial that far back.

Is it really time to completely alter our form of government or, again, would it be better if all these efforts were focused on restoring original meaning before completely changing it? Would Madison embrace such a departure? I don’t believe he would yet I am quite confident he would fully support the restoration of today’s 10th Amendment efforts and the Doctrine of Interposition. My confidence stems from his words, written in Jan. 1800 as part of his Report on the Virginia Resolutions in which he was defending his resolution rejected by other states. He wrote no truer words, words Rep. Bishop and Rep. Cantor should still be holding true to if they are as ardent defenders of the sovereignty of the states and our 10th Amendment as they seem to be.

The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.

Ken Ivory further reminds us of the words of Thomas Jefferson, written in 1791 to Archibald Stuart;

It is important to strengthen the State governments, and as this cannot be done by change in the Federal Constitution (for the preservation of that is all we need contend for), it must be done by States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government. The only barrier in their power is a wise government. A weak one will lose ground in every contest.

Gary Wood is the Educational Advisor for the Utah Tenth Amendment Center. Co-founder of the Heritage Training Center, focused on helping end constitutional illiteracy. With 35 years of devoted study of our Constitution his desire is to help others rediscover the inspiring heritage of the United States. Radio show host, training officer, lifetime member of the VFW and most importantly Grandpa.

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38 comments
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robert williams
robert williams

robert williams born in the U S A and served the in the US Army and Army National Guard fo a total of 10 plus years sayes to All Forighners Not Born our Have Not Proved that they Were Born U S Citizens of the Uninted States of America Including the Wantabe Us Presedewnt Obama Leave the U S Constatution Compleatly Alone If your Kind Want to live in a Dictarteral type of Government then Move Youe Tail Out of the U. S.A. go to Russha China or North Karea or since You bama Is a Muslum you Can Carry your Sorry Rearend to Iran and dont Evan think of returning to the U. S.A. and take your freedom Hatters with your sorry rear Zars and All.

Jerry Silovich
Jerry Silovich

i feel we should repeal the 16th admenment to our consttitutioon for it gave us a proggressive tax system aand the IRS. we should go to flat tax or the faair tax. no more free trade for we are losing the tradee war that jobs aand money! we need to go back to collection dutiess and tarifs for nation we do business still chare us that under free trade, no more most favored nation status either

Jim Delaney
Jim Delaney

Though I need to review the subject more thoroughly, this is my initial reaction: I think Mr. Wood and JMB above have it right. Each individual state already has the inherent right to nullify unconstitutional laws/regs. By implication, however, the Repeal Act would seem to require individual states to cede that power to other states. Also, getting 2/3 of states to agree to anything is a tall order. And should a 2/3 majority not be achieved, and the federal law/reg IS, by any reasonable measure, unconstitutional, then what? Would individual states be duty-bound to yield to majority rule? Subjecting the Constitutional rights of states to shifting political winds, which I believe the Repeal Act might do, is, therefore, concerning. However, I do see merit in the passage of HR 4946, the 10th Amendment Regulatory Reform Act, which judicially tackles overreach issues without risking the forfeiture of a state's right to nullify. It provides a less onerous and confrontational means for states to push back against unconstitutional laws/regs. Opinerlog.blogspot.com did a brief post on this. May be worth a look-see.

JMB
JMB

Hi Jim

I am very much looking forward to investing my available time into reading your blog now that I am aware of its existence.

Here is the text of the proposition in which I believe you refer… http://thomas.loc.gov/cgi-bin/query/z?c111:H.R.49...

I have read this of course and find it’s possibilities to be very intriguing, though I remain cautious to advance something that may invite more Judicial tomfoolery into matters of state sovereignty.

We must remember that a Judicial courts opinion will not necessarily fail simply because it federally encourages unconstitutional stupidity.

Geoff Strickler
Geoff Strickler

To uphold the 10th amendment (and indeed the rest of the constitution), start by repealing the 17th amendment. The 17th amendment took away the representatives of the sovereign states. In doing so, it weakened the states by limiting their ability to protect "states rights". The US Senate was never intended to be direct representatives of the people, but rather representatives of the states. Senators are intended to indirectly represent the people of a state by representing the interests of that state. The interests of a state will not always directly correspond with the interests of the people of that state. The primary reason each state has the same number of senators regardless of population is so that each state is equally represented.

A "repeal" amendment might not be a bad idea, but it isn't strictly necessary. Text of Article 5 of the US Constitution:

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

This makes 2 things clear:
1. That 3/4 of the states can effectively repeal any Federal law by calling a constitutional convention (2/3 of the states) which proposes and passes (3/4 of the states) an amendment which nullifies that Federal law.
2. That Senators are representatives of the States, not of the people.

A "repeal" amendment would simplify the process of state nullification, and for that reason, it may be useful, but it is not necessary.

CabotAR
CabotAR

It was said, "The Repeal Amendment does not infringe in any way on the right of nullification". The first 10 amendments only strengthened the Constitution, not so much 'changed' our government.

There's a great book out that I just read about the Constituion & Americans trying to regain the rights of states. Liked it cause it's about Americans actually taking a stand & it could be about our true destiny in history. Nothing like being a party of history. I recommend it.
www.booksbyoliver.com

The usurpation of power by the federal government is becoming an issue more & more Americans are focusing on (slowly). Good article.

Gary
Gary

Thank you for the link to Jerry Oliver's book, it looks interesting and I look forward to reading it.

Bob Greenslade
Bob Greenslade

Gary wrote:

"There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights."

I believe a good argument can be made that the whole concept of a bill of rights altered the system of government established by the Constitution.

In Federalist Essay No. 84, Alexander Hamilton claimed a bill of rights would be dangerous. He made 5 solid arguments against a bill of rights.

First, bills of rights, in their origin, are “stipulations between kings and their subjects…reservations of rights not surrendered to the prince.” Thus, a bill of rights had no application to the type of constitution being proposed.

Second, since the people were not surrendering any rights to the federal government, there was “no need of particular reservations.” Why reserve rights not surrendered?

Third, the proposed constitution was not a social document designed to regulate the interaction of individuals or society in general. Its only purpose was to regulate the operations of government. Consequently, a bill of rights had no place in the proposed constitution.

Fourth, was his statement―“why declare that things shall not be done which there is no power to do?” A bill of rights, as stated by Hamilton, could weaken or destroy the system of limited government that would be established by the proposed constitution. Why enumerate restraints on powers not granted?

Fifth, was his assertion that an enumeration of rights might be used as a pretense to claim powers not granted. A bill of rights would make it possible for the federal government to transform an enumeration of rights into a grant of power and infringe on the individual rights of the people.

The federal government is using the Amendments to claim powers not granted just as Hamilton predicted.

The federal government is using the Amendments to define the extent of our rights and infringe on our rights just as Hamilton predicted.

Even though this is a usurpation of power and contrary to the intent of the Bill of Rights, as expressed in its preamble, the addition of the Bill of Rights opened the door for this usurpation pf power.

In my opinion, this has totally altered the system of government established by the Constitution.

JMB
JMB

I wonder upon what manner of conspiracy we should be looking to construe some of our eldest and most revered constitutions, as if these were indeed considered, stipulations between kings and their subjects.

Here is a constitutional example of rights, in which Hamilton’s worldly considerations are not held in my opinion to be so self evident.

The Constitution of Pennsylvania - September 28, 1776

A DECLARATION OF THE RIGHTS OF THE INHABITANTS OF THE COMMONWEALTH OR STATE OF PENNSYLVANIA

III. That the people of this State have the sole, exclusive and inherent right of governing and regulating the internal police of the same.

IV. That all power being originally inherent in, and consequently derived from, the people; therefore all officers of government, whether legislative or executive, are their trustees and servants, and at all times accountable to them.

Bob Greenslade
Bob Greenslade

And the general duty of protecting the "inherent" rights of the people was a State function. The powers being proposed for the federal government would change that fact. This was one of the two arguments against the proposal for a bill of rights in the Federal Convention of 1787.

I find Hamilton's statement that there was no need to reserve rights not surrendered and his comment that there was no need to reserve powers not granted to be self evident principles.

JMB
JMB

I agree Bob - Too bad this federal government has decided this to be otherwise by ignoring all constitutions when they see it fit, and using them against us when seen profitable.

Bob Greenslade
Bob Greenslade

Typo

"The powers being proposed for the federal government would [not]change that fact."

Bob Greenslade
Bob Greenslade

Gary wrote:

"There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights."

I believe a good argument can be made that the whole concept of a bill of rights altered the system of government established by the Constitution.

In Federalist Essay No. 84, Alexander Hamilton claimed a bill of rights would be dangerous. He made 5 solid arguments against a bill of rights.

First, bills of rights, in their origin, are “stipulations between kings and their subjects…reservations of rights not surrendered to the prince.” Thus, a bill of rights had no application to the type of constitution being proposed.

Second, since the people were not surrendering any rights to the federal government, there was “no need of particular reservations.” Why reserve rights not surrendered?

Third, the proposed constitution was not a social document designed to regulate the interaction of individuals or society in general. Its only purpose was to regulate the operations of government. Consequently, a bill of rights had no place in the proposed constitution.

Fourth, was his statement―“why declare that things shall not be done which there is no power to do?” A bill of rights, as stated by Hamilton, could weaken or destroy the system of limited government that would be established by the proposed constitution. Why enumerate restraints on powers not granted?

Fifth, was his assertion that an enumeration of rights might be used as a pretense to claim powers not granted. A bill of rights would make it possible for the federal government to transform an enumeration of rights into a grant of power and infringe on the individual rights of the people.

The federal government is using the Amendments to claim powers not granted just as Hamilton predicted.

The federal government is using the Amendments to define the extent of our rights and infringe on our rights just as Hamilton predicted.

Even though this is a usurpation of power and contrary to the intent of the Bill of Rights, as expressed in its preamble, the addition of the Bill of Rights opened the door for this usurpation pf power.

In my opinion, this has totally altered the system of government established by the Constitution.

Mickey White
Mickey White

No New Amendment. The establishmen just want it
to fail so they can call for a federal Constitutional Convention, and
THAT WOULD BE BAD.

Vin
Vin

All,

I think that we would achieve better results if we instead, repealed the Income Tax and Senatorial Election amendments. This would go a long way to putting considerable power back in the hands of the States, and, be in line with what the founders had originally intended.

Len
Len

Someone point out to me why a return to the Articles of confederation would be such a bad thing?? One of the problems (supposedly) was the niggardliness of the states in paying their share. Well considering how money/specie poor all the colonies were, and the costs of the war, not to mention there not being enough gold to equal the debt, this was a specious reason.

Another was the need for a united front in commerce, but I hardly see this as being necessary anymore.

As far as the need for a large united military, WHY?? Again this was an issue for the newly starting out colonies, but today it is only the basis for bullying various countries and does not provide for the "common defense".

Now to speak to another point, many of the framers were against an overly large constitution, and thus wanted as little to be in there as possible, and to leave the rest to be done through the fiduciary agents of the states, but I would argue for a more detailed instrument, with clearer clauses, and more institutional difficulties to retard the inevitable progress of corruption. Remember, if men were angels there would be no need for government, and so to omit more checks and allow for so much to be construed by those who by nature (politicians) love power over justice and liberty, is only to make it easier for them to do wrong.

While I'm at it, the greatest flaw in the US constitution was to not provide for renewal. This above all would have provided the greatest check to retard corruption, and indeed would have made and would make office holders more inclined to do right. It is frankly an absurdity to say "We the people", when one people have passed on and the next have no true opportunity to establish for themselves an instrument of government. Every 20 yrs. I think would be sufficient fora con-con and should never be left out. This holds true for the states. In my state a state con-con is put on the ballot, but really how many people even among those voting understand the concept of the people being sovereign, and government being established to protect our rights?

Vin
Vin

Len,

If we did this, the baby-boom hippies would already have us in a communist setting. The Constitution is hard to change for a good reason. Wiping the slate clean every so often leaves our children to the vagaries of chance.

Len
Len

1) "The constitution is hard to change" Maybe, but only due to the need for a large enough consensus and subsequent energy to do so, but then that really is a problem for then those already entrenched in working against the people are harder to deal with. Also, regardless of the truth of your statement, it is all to easy to ignore, and this is why it (any constitution) needs to have process for insuring that politicians cannot use a constitution against the people by holding on to power.

2) I didn't say "wipe the slate clean" as then all contracts could be considered no longer in effect, and there would be those doing harm in such a time saying they broke no laws. I considered it a given that rightful consensual acts and agreements between people and actions based on rightful laws would not just still be in force but dealt with in any re-framing of a constitution. I also didn't mean that it would no longer be in effect, I again here am taking it as a given that until changes are made or an entirely new constitution effected, that the old one would still hold.

3) I believe that in your fear of totalitarians taking advantage of renewal, you overlook an important truth, that a generation passed can not of right bind a generation present, and that is a double fiction to say "we the people" then. I would also contend that the energy needed to bring about the framing and making of a constitution, along with the inability of people to then continue in violating the instrument due to it's temporality, would promote better government, provide the people with more recourse against tyranny, and provide us with a better sort of office seeker. I am only arguing a better method of retarding inevitable corruption, not a cure-all.

To add to the above concerning temporality ( a thought came to me..they take awhile to get there), an example of a wrong done that could be prevented by such a thing would be inter-generational acts such as social security, medicaid and medicare which encumber a generation not even born and enable a past one to burden a present.

Jeff Matthews
Jeff Matthews

That's no big problem, really. After all, isn't rule-making supposed to be about what most of the people want? Who is it that should get in the way of the majority fashioning the rules under which they prefer to live? This would be much more like tyranny by the minority.

Your point is well-taken, though. I am just throwing out some philosophy to consider - namely, why should we enact rules today so that, when we are dead and gone, the majority can't change them tomorrow to serve their needs and wants?

It's like leaving property in estates with all sorts of strings attached. My attitude is that it should be left without strings, and if my beneficiaries want to blow through it, let them. It's what freedom is all about.

Philosopherking
Philosopherking

"What about laws passed by the general government that are constitutional, based on the original meaning? If enough states can rise against constitutional laws they too can be overturned, whether passed ‘in Pursuance thereof’ or not."

I think this is a good question but the federal government will still have most of the power since it will be easier to pass a law in the federal tribunal since it is a single body and the fact that it only requires a simple majority. This amendment requires 34 state tribunals to independently agree to repeal a law which is possible but 34 times more difficult than getting a single federal tribunal to agree to repeal it since it requires 34 more tribunals to agree to repeal.

This requires a super majority of those states so the federal government will still have an advantage since it requires a simple majority of its own body to pass a law.

Also, if the writers of the constitution feared that states would go all hog crazy with their powers then why would they allow the states to have the power to independently establish an amendment to the constitution? That seems to give the states way more power than the ability to repeal a law.

Here is a list of cons that I have just thought of. What if the resolutions in each state were worded slightly different? That could cause problems because if every T is not crossed then someone might strike down the repeal (aka supreme court). In order to ensure this won't happen I believe it should be changed to say if a state passes a repeal of federal law and supermajority agrees with that state's repeal then it is repealed. A good example is Virginia's nullification of Obamacare. Instead of 34 states passing differently worded nullification bills each state would only be required to agree to Virginia's nullification law. This eliminates the possibility of a repeal being thrown out because of a technichality.

Jeff Matthews
Jeff Matthews

I see the source of your confusion. An amendment replaces. Some think it "adds to." It does not. It can take away. It can modify. "Amended" means "whatever was there before no longer exists and is replaced with this." As soon as the BofR passed, we had a brand new Const. As soon as every amendment thereafter passed, each passage resulted in a brand new Const.

If the proposed Repeal Amendment passes, we will have, once again, a brand new Const. The new Const. would allow 2/3 of dissenting states to repeal a Congressional statute. Nothing earth-shaking. Why not allow it? What is magical about 3/4's? You have to be able to explain the universal imperative of the magicality of the number 3/4 before you can grasp that there is no such imperative. The founders could have put "majority," or 2/3 or 3/5 in Article V. They settled on 3/4. Big deal. Now, if we want 2/3 for a certain authority to repeal a statute, big deal. 2/3 is a hefty majority, so why not? If 2/3 of the states are dead-set that a statute which operates against them sucks eggs, hell, let them repeal it. Why not? 3/4 could. There is nothing earth-shaking between the numbers 34 and 38, when it comes to how many states should it take.

Gary
Gary

Great discussions, it is always important we stir each others brain juices, debate and dig deeply into all areas. One challenge with so much of any level of government today is a lack of careful analysis and debate. Two gangs line up and reactively throw things around that eventually end up harming our form of government and miss the sixth goal of the preamble all together.

Any amendment does change our form of government. Even though it can be argued the Bill of Rights did not significantly change it due to where the amendments could have been placed inside there were still changes. However the changes the BoR made still kept an eye on what a constitution should do, set structural principles and restrict the government while also allowing it to function. In checking the Repeal Amendment it does potentially restrict the federal level yet it strengthens the states so the question becomes how much strength.

Regarding the number, it is such an ambiguous concept we could debate the line being drawn at many figures as Jeff and Philosopherking have illustrated in their good discussion. Article V was designed to allow generational improvement based on governing lessons learned. Of course we know many of the amendments did not improve government as some were designed to restrict people instead of government which, in my view of original meaning, should automatically have stopped them from passing.

The Repeal Amendment must go through the Article V process. Once it completes the process successfully it then is a tool to alter legislation rather than the actual form of government. As Michael pointed out, it is basically a veto power for the states. Jeff believes this would not interfere with nullification yet I view it as hampering the movement to restore the Doctrine of Interposition as many liberals would simply spin the efforts away from today's process and point to the Repeal Amendment. Their stance would be if states can get it repealed great but if not then federal rules stand. Today we don't need 2/3, 3/4, 6/10 or any other threshold to stop the federal government. We need a firestorm from enough states to back the federal level up and in each instance of success it has taken less than a 2/3s number to do it.

If we are to embrace federalism, the grand experiment the framers and founders created, then this potentially flips too much power to the states. This type of alteration led toward anarchy rather than tyranny for the general government yet anarchy, historically, ends in tyranny eventually. The central balance focused on what Skousen refers to as ‘People’s Law’ is hampered. If we are to simply embrace the concept of pure majority rule through representative democracy then we need to repeal the entire Constitution and frame a new one to reflect a majoritarian approach.

It will take a great deal of effort, passion, and time to sell any changes, alterations, or restorations. The Repeal Amendment, like a Term Limit Amendment or Balanced Budget Amendment, pull the focus away from original meaning while hammering into the way we govern without long term consideration of which way we will be pulled...tyranny or anarchy. I would prefer seeing the emotional, financial, and grassroots investment spent on doing all we can to restore federalism as viewed at our beginning. Once restored we can then debate changes for improvement as we move forward.

Jeff Matthews
Jeff Matthews

Great comments, Gary. I will still take issue with the view you have because it does not threaten federal supremacy any more than Article V does. 3/4 of the states could gather and amend to take away the federal power to operate a postal service, for example. Or they could get together and amend to take away federal power to define who is a citizen or to write uniform rules of bankruptcy. 3/4 simply have the power to destroy the federal government. On that basis, I am not alarmed at what 2/3 (4 less states) might be able to accomplish by repeal of statutes at will.

You stated, "Today we don't need 2/3, 3/4, 6/10 or any other threshold to stop the federal government. We need a firestorm from enough states to back the federal level up and in each instance of success it has taken less than a 2/3s number to do it. " There is a flaw in this reasoning because it implies that if a repeal amendment becomes law, the formula for nullification will change. I don't care what the number is according to whatever rule might exist, nullification is nothing but civil disobedience.

As to hampering nullification, how is pointing to the "2/3 requirement in a repeal amendment" any different than pointing to the 3/4 requirement in Article V. Everyone who is a proponent of Obamacare can legitimately say, "If you don't like it, convince 3/4 of the states." Nullification (i.e., civil disobedience knows no rules; that's the whole design of civil disobedience).

I am quite comfortable that Californians will still resist federal drug laws, even if we had a Repeal Amendment. Doesn't this seem obvious? Same goes for Real ID, gun laws and all the other nullification efforts.

Also, you stated, "If we are to embrace federalism, the grand experiment the framers and founders created, then this potentially flips too much power to the states. " Here, you should consider your own assumption. Your assumption is that if the founders were living today in the midst of our current governments, they would NOT enact a Repeal Amendment. I think this assumption is a tough leap. I could certainly see the founders, if they were here today, concluding that the original writing was not restrictive enough on the feds. On top of including the Repeal Amendment, they might have actually written Art. V differently. I wouldn't be surprised if they would re-write Art. V today to have the federal government sunset into non-existence every 20 years unless the states extend it in a con-con.

Finally, you state, "I would prefer seeing the emotional, financial, and grassroots investment spent on doing all we can to restore federalism as viewed at our beginning." Yes, that seems to be the goal for many of us. This does not mean, however, the if the founders were around today, they would have written a Constitution exactly the same way. Jefferson, for example, wrote frequently that the Constitution is flawed and that it will need to be frequently revisited after wisdom is gained into how it could be better.

So, if we are suggesting how to get what was "intended" from the beginning, it could quite certainly be that a whole new writing is in order - if for nothing more than proper clarification, but in some cases to put more effective checks in place where the original ones prove to be ineffective. As ought to be clear, the founders had no problem dispensing with the Arts of Confed quite quickly as not workable. What would make us assume they would not dispense with our Constitution if, armed with our hindsight, they could get together and have another do-over?

Anyway, these discussions have been enjoyable. Thanks for your thought-provoking article.

JMB
JMB

A state has the right to preserve its own governance, regardless of any association conceivable, it may not be isolated or detached from its own concerns.

@JoshASchaeffer
@JoshASchaeffer

There is a horrible gray area in the resolution of unconstitutional laws. One the one hand you have amendment which either requires Congress's consent or the unlimited spamming of amendments from conventions. On the other hand you have nullification which many politicians are too cowardly to chance.

The Repeal Amendment does not infringe in any way on the right of nullification, but places a procedural remedy in the hands of the states. It practically forever removes the need for constitutional conventions. It stops Congress from passing abusive laws which ARE constitutional. And it is highly decentralized and impossible to centrally coerce, but not so decentralized as to expose itself to direct referendum. Furthermore it is only a negative power, giving us the lesser danger of too few laws as opposed to too many.

It's so good, dare I say it, it even beats a balanced budget or a term limits amendment.

Austin Holthaus
Austin Holthaus

When I first read about the Repeal Amendment, I thought it was a good idea. However, a thorough investigation of the second and third order effects have given me pause. While I greatly respect Professor Barnett, this amendment does fundamentally alters our form of government. The Constitution is a compact between the several states and the General Government whereby specific, enumerated powers are delegated from the former to the latter. I'm not interested in giving states the power to intercede where the General Government is supreme (in pursuance of delegated powers only). This article is spot on. States must envoke the 10th and begin vigorously nullifying unconstitutional laws and edicts. Read Tom Woods book on Nullification and its source docs, especially the Kentucky and Virginia Resolutions.

Jeff Matthews
Jeff Matthews

I agree with the "band-aid" analogy. As to "power over delegated powers," the states already have that power. It's in Article V. What is it that is sacred about requiring 3/4's to amend the Constitution vs. 2/3's to repeal a statute? I can't see anything sacred about it at all.

If 3/4's of the states want the Repeal Amendment, then, that will be our Constitution. No rules will be broken. No skies will fall. Everything would have been done by the book. At the point of passage, the Repeal Amendment would be the Supreme law of the land, and BY DEFINITION, it would not give the states "power over delegated power." It would simply be the new Supreme law, which would be that the states will have veto power over Congressional law-making.

Nothing crazy about that. Article V already gives states the same power. The difference here is we would be talking about 34 states, instead of 38 states, to repeal a statute. 4 states less? Eh??? Good enough for me.

MichaelBoldin
MichaelBoldin

Article V is different. It's no thumbs up vs thumbs down take on any law. It is a long, slow, multi-layered process that results in a structural change in the constitution. this amendment is proposing veto power. quite different for many reasons.

Now many people i like and respect tend to like this idea. I'm not a fan at all for the reasons mentioned above.

Jeff Matthews
Jeff Matthews

How is it functionally different? We had prohibition by 3/4 amending. We repealed the prohibition by 3/4 repealing.

Let's say we have a statute. We can effectively make any statute become a part of the Constitution through Art. V. Nothing prevents 3/4 of the states from amending the Const. to require that "all dogs be on leashes when not in the owner's yard."

Let's say that this law, which could be part of the Const., is not part of it, and instead, it is just a statute. Well, 3/4 of the states could amend and state, "Congress shall not require that dogs be on leashes at any time." So, there we have it. Statute repealed!

The proposed amendment only changes the threshold from 3/4 to 2/3 - that's it. In all other respects, nothing has changed that doesn't already exist.

MichaelBoldin
MichaelBoldin

functionally different? Veto and amendment are not the same. The former addresses the current only, the latter is permanent, or close to it....

Vetoes allow the same legislation to be reintroduced, for example.

Jeff Matthews
Jeff Matthews

Of course, the 2/3 threshold would only apply to repeal - not enactment.

Everything else, even Art V, is a thumbs-up, thumbs-down method. 2/3's give a thumbs up on a con-con and 3/4 give a thumbs-up on the proposed amendment. It is not any different in its layers or process, so far as I can see.

Jeff Matthews
Jeff Matthews

I agree the Repeal Amendment would be no cure-all, but I do not see the harm in it. It will not in any way interfere with nullification or interposition. Nullification exists independent of any rule of law. That's the whole point of it. You could even add language in that amendment that said, "Upon passage of this amendment, no state's attempt to nullify federal laws shall be valid." Even then, it would have no effect on nullification. Nullification is a Constitutionally-trendy word for "disobedience." And you can't stop the will of the people when they decide to disobey.

Further, the suggestion that the Repeal Amendment might erode legitimately-Constitutional federal powers misses the point of the Amendment. We already have an Amendment process as it is. In a con-con, the states can vote to repeal the entire Constitution if they choose, thus abolishing every facet of federal government. So, we can already see that we have an amendment process which carries the same threat.

What the Repeal Amendment does is lower the threshold form 3/4 to 2/3, as it pertains to repealing Congressional statutes. I can't say that this is a particularly bad idea given that it makes it easier for states to curb what 2/3 of them would say is undesirable. Keep in mind, 2/3 is still a super-majority.

I am not sure what Madison would do, but Jefferson thought it wise that we pursue such ideas:

"This corporeal globe, and everything upon it, belong to its present corporeal inhabitants, during their generation. They alone have a right to direct what is the concern of themselves alone, and to declare the law of that direction; and this declaration can only be made by their majority. That majority, then, has a right to depute representatives to a convention, and to make the constitution what they think will be the best for themselves. " http://teachingamericanhistory.org/library/index....

Notice, he says "majority" and not 2/3's or 3/4's. What he is getting at is that, in reality, a majority could simply repeal or amend the Constitution if they wanted. By "majority," he refers to a majority of power. So, the 2/3's and 3/4's stuff is a rule people choose to follow until a majority has had enough.

sky
sky

Constitutional Reset Upon Criminal Legislation by excutive's code of federal regulation its time for constitutional reset.Begins with a true to vote petition for redress of grievous felony to your govenor.Petion must be tuned to your states constitution @ code,@if your state has suitable FOI laws,you can lawfully obligate the govenor to make responsive reply,by a copy of that paticular duty authorized record of public law to the sworn officer.If the gov. makes a paticular undesired response,the officer wouldnt be perpetrating a paticular felony in doing so.

MichaelBoldin
MichaelBoldin

Personally, I want to empower the states as much as possible. but, I do not want the states to have any power over the delegated powers, and the feds any power over reserved powers.

This proposal gives rise to the former. Pragmatically-speaking, it could be argued that we would have a better overall effect. Even with that, I see it as little better than a band-aid.

Philosopherking
Philosopherking

Its only the power to repeal a federal law not the power to create one and since it requires 2/3 (to high in my opinion) of states then the federal government still has an advantage (unfortunately).

After hanging around on this website I am coming to the conclustion that this amendment should have been in the constitution since the beginning since the federal government tends to have a tendency to re-interpret the constitution to fit its agenda. Having this amendment would provide a check against them because they know anything they pass can be repealed by someone other than them. It prevents them from passing something outrageous like Obamacare.

I agree that in an ideal situation that this is unneeded since the federal government should always stay within its own sphere. Unfortunately, the world is not a perfect place so this amendment is needed to provide a check against the federal government since the world is not an ideal place.

Philosopherking
Philosopherking

It should be 3/5 because if it was a simple majority of states then a majority of least populated states can override the federal government. That could lead to minority rule instead of majority rule.

Now if we add another tick from 5/10 to 6/10 then it might prevent that but what if we weight each state by how many presidential electors they get? That could actually balance it out.

Jeff Matthews
Jeff Matthews

"since it requires 2/3 (to high in my opinion) "

Precisely! That is the conundrum. If a Republican form of government was designed to protect the rights of a minority, then, why does it take a majority to shoot down oppression? Nobody is able to answer that, except to state the obvious: majority rules.