Wednesday, September 22, 2010

The Repeal Amendment

From law prof Randy Barnett, via Volokh:
William Howell, the Speaker of the Virginia House of Delegates, and I have an op-ed in today’s Wall Street Journal making the case for a constitutional amendment giving 2/3 of state legislatures the power to repeal any federal law or regulation. Here is the wording of the Repeal Amendment:
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

As we explain:
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.

The Repeal Amendment should not be confused with the power to “nullify” unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

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. 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.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment.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.
Read the rest here. Not a bad idea, although if we hadn't passed the 17th Amendment (that implemented popular election of senators), we probably wouldn't need such a thing. Perhaps we could repeal the 17th Amendment and pass this "Repeal Amendment". Of course, we'll probably have to fight and win a civil war against the FedGov and the far Left socialist states first, because the ruling class elites won't give up their ill-gotten power without a fight. While we're wishing for the sky, we might as well add a term limits amendment.


Sailorcurt said...

You're right that this wouldn't be needed if Senators were actually representatives of the State governments as the founders envisioned.

Be that as it may, I don't think this proposal goes far enough.

How about an amendment mandating that for every law congress passes, they must repeal a law.

I think there are enough laws, if the issue is important enough to pass a new law, then they shouldn't have much trouble finding a less important law to repeal in return.

Another option is an amendment that mandates a sunset period for every law. Ten years would be reasonable, but I'd actually prefer something shorter, like 5.

If the law's worth keeping, it shouldn't be a problem to get it re-authorized when the time comes...but it wouldn't be so difficult to get rid of bad, inefficient or ineffective laws if they automatically repeal themselves unless reauthorized.

Also, having to reauthorize ten year old laws every year would give congress something to keep them occupied so they wouldn't have so much free time to think up new laws to saddle us with.

Now THOSE are some amendments I could get behind.

David said...


The fundamental problem, of course, is that Congress no longer operates within the confines of the Constitution, and within the specific, enumerated powers delegated to them. Couple that with the lack of an effective sanction for such a gross violation of their oaths of office, and over time you get the system we have.

Congress isn't going to impeach itself, and the only other sanction is not getting re-elected. And given all the advantages of incumbency that they have created for themselves, combined with the support (for Left wing extremists, at least) of their personal propaganda corps, aka the "mainstream" media, the risk of even that minimal sanction is lessened.