Restraining Leviathan: allow the states to repeal federal law?

The US Constitution has not been amended very often in its history – just 27 times since 1789. It’s a document that’s generally functioned well and Americans are rightly leery of monkeying with it. The 18th amendment, establishing Prohibition, is an example of a mistake that was later repealed.

However, in times of national ferment, Congress and the states have amended the document to fix serious problems: the 12th amendment reformed our method of electing presidents and vice-presidents, which had come to a crisis in 1800 under the original system. The 13th, 14th, and 15th amendments were passed to eliminate the evil of slavery and protect the rights of newly freed African-Americans. The 17th amendment took the election of senators away from corrupt or deadlocked legislatures, while the 19th recognized the right of women to vote.

And so it is today, with so many people concerned about an expanding federal government, that proposals are being floated to amend the Constitution in order to bind Washington within its limits. The Daily Caller has an article about one, the Repeal Amendment, that seems to be on the rise thanks to voter anger:

Rapidly growing support for the “Repeal Amendment” –  a proposed constitutional amendment that would allow a vote by two-thirds of the states to repeal an act of Congress —  symbolizes the intense level of anger Americans have with Washington, according to observers.

In September, Virginia stood alone as the only state where leaders in the state legislature had shown an interest in passing the amendment, but that number has now grown to nine states.

State legislators in South Carolina, Florida, Utah, Indiana, Texas, New Jersey, Minnesota, and Georgia have since expressed interest in the amendment.

Hits on the RepealAmendment.org website have mushroomed over the past month, and the amendment has garnered support from Republican Virginia Gov. Bob McDonnell, Republican Virginia Attorney General Ken Cuccinelli, and soon-to-be House Majority Leader Eric Cantor of Virginia, according to “Repeal Amendment” executive director Marianne Moran.

Moran also sees future opportunities for legislative support in states such as Pennsylvania, Ohio, and North Dakota, among others.

“It just restores the balance of government between the states and the federal government as the founding fathers had originally intended,” Moran said. “The fact we have nine states already onboard shows the momentum, and I think the groundswell [of support] is the Tea Party.”

One might also call this the “10th Amendment Protection Act,” since it’s aimed squarely at defending the rights of the states and the people against federal encroachment.

The constitution makes the amendment process difficult, as it should when dealing with something so fundamental and important: passage by a two-thirds majority of both houses of Congress and approval by three-fourths of the states, or by a specially called convention, whose proposed amendments would also require three-fourths approval. And not every amendment proposed has been approved. The article rightly points out that the Repeal Amendment would have to clear this same hurdle, made more difficult by the fact that Congress would have to agree to give up some of its power.

But, it can be done. The 17th Amendment was passed after a national consensus in its favor arose and pressure was put on Congress in the form of state calls for a constitutional convention. By 1910, nearly two-thirds of the states had issued such calls and the Senate, which had resisted reform, realized it had better act before the Article V threshold was crossed. The same kind of national consensus, represented in the various Tea Parties and the recent election results, could put similar pressure on Congress to act before the states do it for them. As the article points out, state legislators would have a direct interest in seeing this amendment passed, as opposed to many others that cross their desks.

So, what do I think of the proposed Repeal Amendment? After initially being highly skeptical, as I think any conservative should be, I’ve come to favor it, especially since the Democrats and their Big Labor and other leftist allies have laid bare their progressive-statist souls for the world to see over the last few years. Their program threatens a fundamental transformation of the United States into something never intended.

Another check and balance is needed.

My one reservation is that I believe the two-thirds limit is too low. Allowing states to repeal federal law is equal in my mind to the power to approve amendments to the Constitution and should meet the same standard: consent by three-fourths of the states. (This is the same standard Professor Randy Barnett uses in his proposed Bill of Federalism, of which the Repeal Amendment is a part; I commend the whole document to your attention.) That disagreement aside, I now think this is a good and necessary change.

Wouldn’t it be ironic if, under a president who thinks the Constitution is fundamentally flawed, the people agreed and fixed the flaw by hogtying DC?

It would be amusing, to say the least.

UPDATE: More at Big Government.

UPDATE II, 12/5/2010: Ed Morrissey is very skeptical of the proposal for a repeal amendment. My reply. Moe Lane takes on liberal lunacy over the proposed amendment.

(Crossposted at Sister Toldjah)

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