Better Than Nullification: A Repeal Amendment
You may have noticed that, every once in a while, 535 men and women in Washington manage to pass legislation that most Americans dislike. What to do?
In today's WSJ, Prof. Randy Barnett and William Howell (Speaker of the Virginia House of Delegates) have an idea that sounds great to me: a "Repeal Amendment." This would be an amendment to the US Constitution that says the following:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
This is a more powerful idea than nullification (which I discussed here). Nullification, if it has any validity, only allows a state to ignore federal law that transgresses constitutional bounds. But with a repeal power, states can reject federal law on any policy ground. There's more discussion at Volokh and at the WSJ Law Blog. I have my doubts about nullification, but this amendment is change I can believe in!
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Comments:
May '10
Re: Better Than Nullification: A Repeal Amendment
That is the best idea I've heard in a long time.
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Such an amendment would be largley unnecessary if we simply repeal the 17th amendment to the constitution, which allows for the popular election of senators.
The 17th amendment fundamentally altered the federalist structure set up by the framers and effectively ended any state power at the federal level. It was a horrible idea pushed by progressives under the guise of populism and is at the root of so many problems we face today.
That's right, don't get me started on the 17th frikin' amendment...
Jul '10
Re: Better Than Nullification: A Repeal Amendment
That is such a simple and fantastic idea that it will never happen. I would love it, though.
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Do tell us more, Adam. (I'll visit the blogs you mention, but sometimes a layman like me gets confused by so many lawyers talking at once!) Now I'm scurrying off to read the 17th Amendment.
Jul '10
Re: Better Than Nullification: A Repeal Amendment
Frozen Chosen: Such an amendment would be largley unnecessary if we simply repeal the 17th amendment to the constitution, which allows for the popular election of senators.
The 17th amendment fundamentally altered the federalist structure set up by the framers and effectively ended any state power at the federal level. It was a horrible idea pushed by progressives under the guise of populism and is at the root of so many problems we face today.
That's right, don't get me started on the 17th frikin' amendment... · Sep 16 at 12:29pm
Finally, someone else who hates the 17th amendment! I like the cut of your jib, sir.
Jun '10
Re: Better Than Nullification: A Repeal Amendment
This is an amendment that makes sense and has the potential to breath life back into the tenth amendment. Let's go for it.
Re: Better Than Nullification: A Repeal Amendment
An excellent point. Unfortunately, popular election of senators is so widely viewed as a good thing (the original system often branded as "aristocratic"), that it would probably be very difficult to get traction on a movement to repeal the 17th amendment, even though I completely agree that it would restore the balance of power that the Founders wisely envisioned.
Re: Better Than Nullification: A Repeal Amendment
The amendment would work pretty much as the text says: 2/3 of the state legislatures (I'm assuming both houses in each state would have to agree) could repeal any federal law. Barnett also proposes that there should be a mechanism for Congress to override a state veto if they really, really wanted to defy popular opinion!
Like any amendment, this needs a 2/3 vote in Congress (or an application by 2/3 of the states for a convention) and ratification by 3/4 of the state legislators. Over at Volokh, Barnett reports:
So contact your state legislator or Congressman!
Sep '10
Re: Better Than Nullification: A Repeal Amendment
Which Senators would lose their jobs without popular elections?
Can you think of a recent law that would be repealed by 2/3 of the states? That's a high threshold.
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Well, maybe I'm just slow today (or slow, period), but I'm not really catching on to the equvalence of the 17th amendment and the proposed new amendment here. I would love to have you guys explain this to me in layman's terms. Plus, the more we talk about "dry" Constitutional details today and the less about horse-races, etc, the better maybe? But really I'm just curious!
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Great idea! Tenth Amendment on steroids!
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Let me try to explain it in a nutshell, Midge; Our great republic was originally set up as a Union of entities called states, not a powerful central govt with smaller regional govts. The states didn't want to give up sovereignty but realized there were some things - very few things - better done by a central authority (military, coinage, foreign policy,etc). So they decided to share sovereignty with the federal govt.
The senate was created so the states could have a say in how the federal govt was run. It's important to realize that states are entities, not individuals. Entities and individuals are not the same thing. They have different methods and goals and act differently.
With the 17th amendment, any power the states had with the feds was eviscerated. Instead of representing their state govt, senators now represent the "people" which is what the House of Representatives is supposed to do (it makes no sense to have 2 bodies representing the people).
Net net, the 17th amendment threw the whole thing completely out of whack and now the feds do whatever they want and the states have to bend over and take it. Bad, bad idea.
Jun '10
Re: Better Than Nullification: A Repeal Amendment
Major Don: Which Senators would lose their jobs without popular elections?
Can you think of a recent law that would be repealed by 2/3 of the states? That's a high threshold. · Sep 16 at 1:43pm
1. I think some telegenic lightweights totally corrupted by K-Street and removed from home-state affairs (supply your own list) would be replaced by fat, greasy lightweights that had been corrupting the state capital. I wouldn't trust my (Florida) state legislature more than popular election
2. a. The Patient Protection and Affordable Care Act (PPACA) -- slam dunk, 20 state AGs in court now to block it and the really egregious provisions haven't been implemented yet. 34 states to save their doctors and hospitals by restoring funding to Medicare and to block the unfunded mandate to the states to pickup Medicaid, not a problem
b. Cap and trade (only passed in the House but still) The claimed envirionmental benefits weighted against real energy prices and jobs moving to Asia would probably do it.
c. Any act that nationalized private retirement accounts, nicely resolving the over-heated prior discussion.
d. probably any omnibus base-closure bill
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Having a body where the "people" of Wyoming have the same power as the "people" of California is ridiculous but having a body where the "State" of Wyoming has equal footing with the "State" of California makes perfect sense.
A fine distinction I'll grant you but a critically important one. (I tried to make this point with senator Bob Bennett on a talk show once but he couldn't get it. Glad to see his butt thrown out on the street by the Tea Party.)
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Whiskey Sam
Finally, someone else who hates the 17th amendment! I like the cut of your jib, sir. · Sep 16 at 12:54pm
Spread the word, brother! Spread the word!
Aug '10
Re: Better Than Nullification: A Repeal Amendment
Thanks for the explanation, Frozen.
Re: Better Than Nullification: A Repeal Amendment
Phew. When I read the piece in the WSJ, I thought, a) sounds pretty good to me, but, b) I have the feeling Adam Freedman won't like it, and will rapidly explain why, on grounds of right reason and respect for the Constitution, a repeal amendment would be a very bad idea. But Adam does like it! Hugely relieved that my instincts lined up with Adam's mind.
And when I interviewed Justice Scalia a couple of years ago, he said we should amend the Constitution more often, not less, that being the only honest way to change our constitutional arrangements. The Justice would never comment on a proposal such as this, but Adam represents a pretty good proxy.
Sep '10
Re: Better Than Nullification: A Repeal Amendment
In addition to restoring the role of the States in managing the federal government by repealing the 17th amendment, we should also implement either through statute or amendment an expansion of the house of representatives to a size which would be consistant with the ratio of people to representative at the time of the Founding. I believe approxmately 10,000 representatives would do this if I remember the math correctly.
For a detailed analysis of why this a great idea (one reason in short: less citizens per rep means more citizens can personally know their rep and make a more informed choice when voting and choose better reps), take a look to the following article:
http://www.nationalreview.com/articles/228369/we-need-bigger-house/jonah-goldberg