If Adam thought Dana Milbank’s hyperventilation over the proposed constitutional amendment to allow two-thirds of the states to overturn federal laws was overwrought (and it was – Dana’s snarky tone is bringing him perilously close to becoming the Beltway Perez Hilton, no?), he should brace himself for the response penned by Dahlia Lithwick and Jeff Shesol at Slate.
The piece is rife with the same straw men we’re used to hearing every time conservatives entertain the notion of constitutional modification: how can people who think the document is sacrosanct be in favor of amendments? (answer: we actually think the constitutionally defined amendment process is pretty good too); Isn’t conservatism fundamentally – and solely – about conserving the old order? (answer: only when Sam Tanenhaus is trying to sell a book); And – my personal favorite – Slate’s assertion that “The Constitution is—by design—a nationalist document”. This, of course, is one of those facts that’s true except when it isn’t (See: Amendment, Tenth).
Of course, the sine qua non of these sorts of pieces is the macabre hypothetical, which Lithwick and Shesol produce by quoting Rick Ungar, a California attorney who blogs at Forbes. The section they excerpt:
Would the city of New Orleans ever be rebuilt following a Katrina disaster if 2/3 of the states were empowered to repeal federal legislation appropriating the money to do so? After all, what's in it for Texas? Or Ohio? While the port of New Orleans may be essential to the movement of goods into the nation—and certainly important to the economic viability of the city—the loss of the port would mean more business to other ports of entry in Texas or other regional centers. What, exactly, would be the motivation of any state that is not Louisiana to support the economy of New Orleans?
Slate then goes on to cite Ungar’s conclusion that "If this sounds familiar, it should. We've seen what happens when regional economic interests trump the desire to maintain the unity of our states. It was called the American Civil War."
Two problems here. The first is the assumed venality of the American people. I’d be shocked if one state had voted against post-Katrina emergency aid, let alone 34 of them. Even most doctrinaire libertarians don’t want to die on that particular hill. The second is the gratuitous invocation of the Civil War, which is the example of choice for those who don’t want to have a serious discussion about federalism. Remember, the Confederacy managed to secede without the repeal amendment (not that it would have made a difference – the confederacy consisted of only about 1/3 of the pre-Civil War union. They wouldn’t have been able to take advantage of the mechanism).
I’m still a bit of an agnostic on the proposed amendment itself, but it does strike me as an interesting substitute for the idea of repealing the Seventeenth Amendment. The reason? It moves towards restoring the erstwhile state influence on federal policy while reducing the incentives for corruption inherent in having the legislatures choose U.S. senators.
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Jun '10
Re: A Drowning New Orleans and a New Civil War: Slate’s Injudicious Reading of the Repeal Amendment
Troy Senik:
Of course, the sine qua non of these sorts of pieces is the macabre hypothetical, which Lithwick and Shesol produce by quoting Rick Ungar, a California attorney who blogs at Forbes. The section they excerpt:
By that same logic the appropriation would never pass the Congress in the first place. After all, senators are supposed to represent the interests of their state, and as we saw during the health care debate (e.g. the "Louisiana Purchase") they can be pretty crass about it. So if there's really nothing in it for Texas, the senators from TX should vote no. In fact only the senators from LA would vote yes, and it would fail 98-2.
If senators can be expected to put aside narrow regional interests in times of national need, why can't state legislators be trusted to do the same?
May '10
Re: A Drowning New Orleans and a New Civil War: Slate’s Injudicious Reading of the Repeal Amendment
I think such an amendment is a good idea because it decentralizes political power, a necessary measure to hedge against an already super-centralizing federal government.
Aug '10
Re: A Drowning New Orleans and a New Civil War: Slate’s Injudicious Reading of the Repeal Amendment
I love the smell of flopsweat in the morning ! The liberals are really cornered , for awhile at least.
Sep '10
Re: A Drowning New Orleans and a New Civil War: Slate’s Injudicious Reading of the Repeal Amendment
Conservatives wouldn't be tempted to amend the Constitution if it was adhered to according to original intent. It seems to me that this proposed amendment would give some of the powers back to the states that has been usurped by the National government.
I say pass this amendment and repeal the 16th and 17th amendments at the same time.
Re: A Drowning New Orleans and a New Civil War: Slate’s Injudicious Reading of the Repeal Amendment
Joseph Stanko
By that same logic the appropriation would never pass the Congress in the first place. After all, senators are supposed to represent the interests of their state, and as we saw during the health care debate (e.g. the "Louisiana Purchase") they can be pretty crass about it. So if there's really nothing in it for Texas, the senators from TX should vote no. In fact only the senators from LA would vote yes, and it would fail 98-2.
If senators can be expected to put aside narrow regional interests in times of national need, why can't state legislators be trusted to do the same? · Dec 5 at 11:26pm
Agreed, Joseph. Ungar's point calls to mind Thomas Frank's shock in "What's the Matter with Kansas?" that the benighted people of the Midwest would vote Republican despite the GOP's opposition to their "economic interests". And I thought we were the ones who were supposed to be pessimistic about human nature.