December 2, 2010

Should the Constitution be amended to empower the states, by a 2/3 vote, to repeal provisions of federal law?

Dana Milbank notes "the unfortunate echo of nullification," but nullification was the idea that individual states could disregard federal law they opposed. The Repeal Amendment would institute an orderly structural safeguard as part of the Constitution, a check on federal power that requires a supermajority vote of the states.

Instapundit thinks Milbank is being — pretending to be? — too obeisant to the original Constitution:
The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created. The idea that the text of the Constitution should be revised only through judicial reinterpretation is a modern conceit, and one that does no honor to the Framers at all.
Since the Repeal Amendment, proposed by Randy Barnett, can easily be portrayed as an effort to return to something closer to the balance of power provided for in the original Constitution, it is pretty silly to portray yourself as brimming with respect for the Founders when what you really support is the shift of power to the national government that occurred over the long stretch of time, a shift that the courts have allowed to take place.

You know what else is silly? This, from Milbank:
Lest you think this is a hair-brained scheme by one Republican lawmaker, consider that the Repeal Amendment... has won the endorsement of the man who will be the next House majority leader, Rep. Eric Cantor (R-Va.).
Let me dig up William Safire:
Folk etymology is the term for the creation of new words by mistake or misunderstanding or mispronunciation....In today's language, "Hare-brained" is often giddily and irresponsibly misspelled "Hairbrained," perhaps on the notion that the hair is near the brain.
Folk etymology... hmmm. There's also folk constitutional interpretation, isn't there? Or is folk the wrong word when it's journalists purveying the bogus constitutional wisdom?

77 comments:

Maguro said...

Shouldn't Dana Milbank be open to this new idea since he's liberal and all?

Leland said...

Silly rabbit.

garage mahal said...

Why do the so-called Constitution Lovers always want to change the Constitution or eliminate portions of it?

traditionalguy said...

It is always about whose ox gets gored, and then the noble historical memes spew forth to support the speaker's side. The Imperial Presidency is the ox, that has not been checked by Congress as long as Congress got paid off with some earmarks for their friends,and is about to be gored big time if this passes. Democracy is a bitch if it cannot be controlled.

edutcher said...

Since the Constitution allowed (and still does) secession, this may be the best we can get. Maybe then, we can kill ZeroCare.

Maguro said...

Shouldn't Dana Milbank be open to this new idea since he's liberal and all?

Liberals are illiberal.

PS The idea being floated of reverting states that require a Federal bailout to Territory status is even more fun. Next thing you know, voting will be contingent on owning property

MadisonMan said...

Why not elect Representatives to change the law? If Congresscritters can't be elected to change a law, then why should states be interesting in nullifying that law that their citizens apparently don't want to see nullified?

Kurt said...

With respect to Safire's point, George Orwell referred to those kinds of things as "dying metaphors" in Politics and the English Language.

wv: apticsva--I'm sure we could invent some definition for this which would fit this discussion.

D. B. Light said...

I believe that the reigning authority on what you call "folk constitutionalism" [what he refers to as "law mindedness" as reflected in "legal behaviorism"] is John Philip Reid up at NYU. He's an historian, not a lawyer, but his work should be of interest to any constitutional law professor.

JAL said...

@ Garage Why do the so-called Constitution Lovers always want to change the Constitution or eliminate portions of it?

Because the "checks and balance" balance of power has been tossed by the "gotta do something NOW" for every freakin' thing people along with the [we are] "better and smarter" people ignoring us, the states (we are the United STATES) be damned.

Paul Zrimsek said...

"Hair-brained" is the rare malapropism that manages to improve on its original. It gives you the image of someone with hair growing on both surfaces of the skull, taking up room where their brains should be.

I thought "folk etymology" referred to dubious explanations of the origins of existing words and phrases, not to the erroneous coinage of new ones.

Crimso said...

"Since the Constitution allowed (and still does) secession"

In the sense that it is silent on the question. The Confederate Constitution was also silent on the question, the explanation being that only a prohibition against it needed to be explicitly stated. All of this aside, I thought there was a SCOTUS decision ca. 1870 that held secession to be unconstitutional.

Joe said...

How about repealing the 17th amendment along with this amendment?

Bill Harshaw said...

And 2/3 of the states could represent how much of the population? I suspect around 30 percent or so.

Cedarford said...

Except the Amending process is broken. No controversial Amendments have been allowed to pass since the 1962 repeal of the Poll Tax.

Instapundit "The amendment process, after all, is part of the Constitution. The Framers had no illusions that they were creating perfection, and believed in the sovereignty of the people and in the power of the people to revise the Constitution as needed, through the process they created."

The only thing that will work in fixing the many defects and inadequacies of the "Sacred Parchment" - given the Amending Process has been defeated by the advent of organized special interest groups - is a Constitutional Convention.

Kev said...

(the other kev)

Why do the so-called Constitution Lovers always want to change the Constitution or eliminate portions of it?

I'll ignore your irony-impairment and point out that using procedures established in the Constitution itself to alter it is superior to making up shit because the Constitution is 'a living, breathing document.'

As for Milbank, he's always struck me as a sixth-grade intellect trapped in an older man's body. Writing like this doesn't convince me otherwise.

Titus said...

When Eric Cantor speaks flowers come tumbling out smelling of perfume.

He has a cock sucking in his closet or airport bathroom and you know it.

Not that there is anything wrong with it.

ndspinelli said...

I miss Safire. He kept Maureen Dowd a little closer to earth. She genuinely adored Safire, and he treated her like a daughter who sometime needed guidance. Dowd became more shrill after Safire died.

Scott M said...

The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law - from civil rights to health care - if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.

The number of programs/laws/unintended consequences (like HR departments and their dealings with "protected classes) that make the majority subordinate to the minority, usually at the behest of so-called progressives, are legion.

Sauce for the goose, my friends.

Alex said...

Why do the so-called Constitution Lovers always want to change the Constitution or eliminate portions of it?

Conservatives use the amendment process. Lefties just do an end-run around the Constitution.

Lucien said...

Don't stand too close to anybody hair-brained when you speak with them: they propbably have baited breath.

Quasimodo said...

What Joe said.

Kill the 17th

mariner said...

Obama once complained that the Constitution "got in the way" of things he wanted to do.

Somewhere along the way We the People forgot that "getting in the way" is exactly what the Constitution was intended to do.

We the People also forgot that ultimately WE decide what's Constitutional and what isn't, because judges arrogated that function to themselves alone, and we let them do it.

When the Iraqi people were deciding how to organize their government, Jay Leno quipped, "Why don't we just give them our Constitution -- we don't seem to be using it" and sadly he was right. We've allowed it to be replaced by the whims of politicians, judges and bureaucrats.

John said...

this MUST NOT be passed if only for the sake of future generations of law school students in civil procedure classes.

my civ pro exam is next week an i think this would kill me!

garage mahal said...

"Kill the 17th"

And Article I, Section 8 1st Amendment

Also:

14th Amendment
16th Amendment
17th Amendment

Signed,
Constitution Lover

Richard Dolan said...

Article V of the Constitution already provides that "Congress ... on the Application of the Legislatures of two thirds of the several States, shall call a convention for proposing Amendments ...." Any resulting amendments become valid only upon ratification by three fourths of the States. The proposed Repeal Amendment fits comfortably within that scheme. But even if adopted, I doubt that it would ever have much impact, just as the existing provision allowing two-thirds of the States to call a constitutional convention has never had any impact.

Bart Hall (Kansas, USA) said...

One of my very favorite Presidents is Grover Cleveland. In eight years he vetoed 584 bills from Congress, many of them with the comment "There is nothing in the Constitution granting Congress the power to enact such a law."

He was a Democrat.

rhhardin said...

That's an eggcorn.

Famous Original Mike said...

"There's also folk constitutional interpretation, isn't there? Or is folk the wrong word when it's journalists purveying the bogus constitutional wisdom?"

Haha. Boom. Nice work, Ann!

Sigivald said...

garage: Why did the States who ratified it in the first place do so on the (fulfilled) understanding that it would immediately be amended with the Bill of Rights?

Yeah, I can't imagine why someone who thought the Constitution was a great framework and embodied excellent ideas would use that same framework and those same ideas to modify it in a way according with them to counteract a few centuries of change in the political environment!

That's just incomprehensible, isn't it?

Madison: Wouldn't the state legislators who'd be doing the voting under the Amendment be just as "elected" for it? And, indeed, since state legislators aren't involved in Federal logrolling and back-scratching, one would think they'd be more responsive to What The Voters Want...

Revenant said...

The amendment sounds like a good idea to me.

Revenant said...

the so-called Constitution Lovers

You mean Americans?

veni vidi vici said...

Hair-brained.

The man is a certifiable idiot, if he's making that type of mistake while effecting his pose as big who at the WaPo op-ed page. What a douche.

And if you think that's being harsh, think again: that's his fucking job, to write well! FAIL.

John Lynch said...

I don't think this amendment is a good idea.

I think you could, fairly easily, have a situation where 2/3 of the states voting to repeal a piece of federal legislation represented far less than 2/3 (or even half) of the US population.

In short, there are a lot of states with small populations that should not be able to veto the majority. We have a Senate for that already.

If we are unhappy with our federal legislation we should vote for people who will change it. Messing with the constitution over legislative disagreements has already put a lot of states in a bind. Let's not do that at the national level.

John Lynch said...

Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population.

Bad, bad idea.

Scott M said...

Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population.

Bad, bad idea.


On the flip side of that, you have federal mandates that go out to all 50 states that the smaller states have fewer resources to meet.

John Lynch said...

Sure, but this is really messing with the balance of state and federal power in a new way.

It may be that we need to do something about the relationship between the state and federal governments, but I don't think this is a good way to do it. Imagine trying to take on entrenched special interests when they can repeal laws by simply targeting state legislatures.

The real power difference between states and national government is in tax revenue. The federal government collects far more in taxes, and this is the source of the growing imbalance between state and federal governments.

Another question to ask is if we really want to make the US less centralized to the point where states can veto legislation. Looking around the world for examples, the closest one I can find is the European Union. How is that working out?

Revenant said...

Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population.

If 1/3 of the national population thinks something is a terrible idea, maybe the federal government shouldn't be doing it. Let the states do it instead.

The point of this amendment would be to prevent the federal government from imposing laws that most of the states don't want. If a big high-population state still wants the law, they can pass it at the state level.

HDHouse said...

would such an amendment be challenged as unconstitutional?

Revenant said...

Imagine trying to take on entrenched special interests when they can repeal laws by simply targeting state legislatures.

"Simply"? How is targeting thousands of of legislators across dozens of states somehow "simpler" than targeting a few hundred members of Congress?

John Lynch said...

Remember that defense bills could be repealed, too. Many, many things necessary for the common good could be repealed. The national government is elected, and the electorate should be able to decide what they do.

I'm afraid that an amendment that would essentially create a second senate (because the states would become national players, in that they could threaten to veto legislation) might paralyze government.

While there could be many advantages to that, it would also create a situation we haven't had since the Articles of Confederation. Madison didn't write the Constitution because things were going well already.

John Lynch said...

And states are easier to influence. Take a look at a state constitution and see how long it is. Marvel at all the special breaks people get.

Revenant said...

would such an amendment be challenged as unconstitutional?

The Constitution forbids amendments that would give states unequal numbers of Senators.

Anything else is allowable.

John Lynch said...

I don't think you'd be able to get 37 states to vote for this amendment, much less than 2/3 of Congress. There are too many states with high populations who would lose to much, and also poor states like West Virginia and New Mexico who might lose a lot of pork.

Congress, of course, isn't going to vote to nerf itself.

That would leave state conventions, which haven't ever been tried and would be a circus if they were.

Revenant said...

Remember that defense bills could be repealed, too.

Yes, and?

Many, many things necessary for the common good could be repealed.

If the majority of the people in 2/3 of the states want something gone, what's your basis for claiming it is for "the common good"? It may, perhaps, be "good for the majority of the population", but that's not the same thing at all.

I'm afraid that an amendment that would essentially create a second senate (because the states would become national players

... again. You forgot the word "again" after "players". Ever wonder why we're called the "United States" and not "the People's Republic of North America"? The power of the states is supposed to exceed that of the federal government.

Revenant said...

I don't think you'd be able to get 37 states to vote for this amendment, much less than 2/3 of Congress.

You can also pass amendments via constitutional convention; 2/3 of the states call for one, then 3/4 ratify the amendments. Congress doesn't get a vote.

But is it likely to happen? No, it isn't.

Scott M said...

But is it likely to happen? No, it isn't.

I would like to think that if things started getting that bad, it would happen before ropes started swinging from lamp posts.

Revenant said...

And states are easier to influence. Take a look at a state constitution and see how long it is. Marvel at all the special breaks people get.

Now try to get 33 of them to agree to the *same* special breaks. Marvel at how much you fail.

John Lynch said...

I don't understand why it's more democratic for people to vote for state legislatures than for federal ones. The federal government has powers granted by the constitution, and it's democratic. Messing with the system that we've had for over two centuries is not something we should enter into lightly.

By letting state legislatures repeal laws, we are limiting the authority of duly elected representatives of the people. Federal supremacy is a constitutional principle, and we'd be undermining that.

We'd probably end up strengthening the executive even more because the President and the cabinet agencies would be more effective in passing rules and enforcing them.

If Congress became incapable of dealing with the country's problems, we'd most likely slip into a more authoritarian system that could actually function. That's what typically happens when liberal orders fail.

If we don't like what Congress is doing, we can vote for representatives to change it. The federal government actually has more constitutional restrictions on it than the state governments do (albeit in practice not so much).

We shouldn't be running around looking for procedural safeguards when the problem is the voters. If people want to vote the country into financial ruin, they will. They've been busy doing that at the state level, too. That's democracy- the people are free to fuck up.

As for how the balance of powers is "supposed" to be, that question has been resolved. That happened in 1865.

Seven Machos said...

YES.

Marshal said...

"Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population."

If this were the only drawback a modification that the process require the same number of states but adding a minimum population percentage represented by the approving states as well would eliminate it. This isn't a particularly meaningful objection.

craig said...

John Lynch said...

"I don't understand why it's more democratic for people to vote for state legislatures than for federal ones. ... Messing with the system that we've had for over two centuries is not something we should enter into lightly."

The 17th amendment became law in 1913. So we have less than 100 years with the present system, years which coincide almost exactly with the runaway growth of federal power.

Decision-making at a higher and more remote level, by people less affected by the decisions, cannot be more democratic than when people exercise their proportionally greater influence at the state and local levels.


"We shouldn't be running around looking for procedural safeguards when the problem is the voters."

Res ipsa loquitur. The left's answer to democracy is to elect a new people.


"As for how the balance of powers is 'supposed' to be, that question has been resolved. That happened in 1865."

So might makes right now? How retro of you.

richard mcenroe said...

I like the widdle wefties complaining about this proposal while completely overlooking the fact that if we'd had it in place we'd have been out of Iraq by 2005....

Rialby said...

Garage -

So, people speak openly and responsibly about whether we should amend the Constitution to do away with birth-right citizenship, something that no other first world country has (with the exception of Canada) and that proves that we don't love the constitution (according to your weak sarcastic formulation).

In fact, many of your favorite countries in Europe did just what the Tea Partiers in this country are proposing. They amended their statutes to make it harder for birthright tourism.

Rob Crawford said...

"We shouldn't be running around looking for procedural safeguards when the problem is the voters."

Wow.

John said...

The repeal amendment is a good start, but we also need a way for the states to overrule the supreme court when it screws up. I would propose that if the courts of 2/3 of the states find the supreme court to be in error, then the decision in question should be overruled.

Allen Cogbill said...

Interestingly, at least perhaps for people in Wisconsin, the actions of the State of Wisconsin in the 1850s constitutes one of the better examples of state nullification. Wisconsin not only refused to uphold the Fugitive Slave Law, but actively defied the Federal government in that it refused to permit Federal marshalls to enforce the law. I think the case went to the Wisconsin Supreme Court, which more or less told the Feds to stick it. See Chapter XI of Tom Woods' Nullification.

Tom said...

Or maybe "folk" is wrong because it sounds too much like "volk," with is, you know, a word Hitler used.

One wonders if the WaPo fired all its editors.

Frances said...

Dana ? Who is dana milbank??

blake said...

Dana?

Funny comedian.

Jay said...

and also poor states like West Virginia and New Mexico who might lose a lot of pork.

Sign me up!

Calvin Dodge said...

Dana's making a legitimate point. EVERYONE knows the proper way to amend the Constitution is by majority vote of the unelected oligarchy (the Supreme Court).

McGehee said...

Dana Milbank has as much wit as a louse's egg (nit). You'd think there'd be a word for that...

Revenant said...

I don't understand why it's more democratic for people to vote for state legislatures than for federal ones.

Democracy is government by the people, usually via their elected officials. The larger the size of the electorate, the less representation each member of the electorate has in government.

The median state, by population, is Louisiana at 4.5 million people. Louisiana has 7 US representatives, 2 senators, 105 state representatives, and 39 state senators. So Louisianan's vote has over fifteen times as much influence over his state officials than it does over his federal representation. Laws affecting Louisiana are fifteen times as "democratic" if passed BY Louisiana than they are if passed by the federal government.

Democracy is a means to an end, the end being that the government should express the will of the governed. The federal government doesn't represent the will of the governed in any meaningful sense.

10ksnooker said...

Hey here is brilliant idea ... Why not return to the states there Senate? Just repeal the 17th amendment. Why do the people need two Houses and the states get none?

That would sure end the unfunded mandates if the States ran the Senate like originally intended. And allow for a veto of everything else in between.

Restore federalism in one shot.

Revenant said...

If Congress became incapable of dealing with the country's problems

I question your use of the word "if", and your choice to use the future tense of "become". When's the last time the federal government solved a problem? For bonus points, cite an example that doesn't involve fighting a war.

Charlie Martin said...

"Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population."

Which would be

(1) Pretty much exactly the purpose of the Grand Compromise, put together by Ben Franklin and essential to the eventual ratification of the Constitution
(2) Called for by the very Constitution that Milbank is so having the vapours about amending
(3) A positive feature from the point of view of those of us in all those middle, flyover states that the left and right fringes keep trying to ignore.

Jay said...

"Wow, looking at the numbers, you could conceivably get 2/3 of the states (34) to have only around 1/3 of the national population."

And?

This is a problem or something?

MarkD said...

Let's leave it up to the courts. If they can come up with Kelo, it's obvious that no words will stop them.

Douglas said...

Somehow, I can't get worked up by arguments that something like 33% of the population could prevent legislation desired by 67% of the population. No one prevents the 67% from foisting an idea on themselves through their state governments. Then, if it's a good idea, people will find the state attractive, kind of like Texas currently. Conversely, if the idea doesn't work out very well, like in Michigan for the last thirty years, people can leave (like with California). The state laboratories allow choice and culturing of successful policy ideas. Actual national interests, like defense and international trade, very likely would garner broad support (frankly, I'd leave such clearly national programs off the nullification table). The reason the 67% don't want to inflict ideas only on themselves is obvious; those who objected would leave.

Andy Johnson said...

Article Five of the U.S. Constitution says in part "Two-thirds of the state legislatures may apply to Congress for a constitutional convention to consider amendments, which are then sent to the states for approval."... It seems reasonable that an amendment that invalidates any laws passed by Congress could follow a similar path. Two-Thirds of all the states is a big hurdle. Congress should not fear such a check.

Of course, given the recent history of Congress ignoring their constituents maybe they have every right to fear it. Congress ha also delegated most of it's legislative power to the executive branch in the form of regulations that have the affect of law in that they can imprison, deprive of freedoms and property without any Congressional oversight or review. Having a permanent government that is not answerable to any authority seems a violation of the intent, words and spirit of the U.S. Constitution.

Maybe THAT is the real fear and it would be well placed. The EPA, FDA, HHS, DoJ, and Labor agencies have all become so politicized that the people are disenfranchised. Our elected representatives have -no- control over these agencies.

I welcome any and all changes that bring govt back to earth, back to America, back to living among us and being fellow citizens.

Good luck getting any Media Maven to understand what is at risk and how the solution would be a good idea.

PD Quig said...

Face it: some very dim bulbs (you know who you are on this thread) think that the United States is a democracy, when it is, of course, a republic.

Majority rules doesn't apply to everything. You're the same nobs that want to do away with the electoral college.

Martin said...

I like Barnett's idea, but one could also just repeal the 17th Amendment and make Senators actually represent their states instead of themselves. Combined with the filibuster and maybe a recall provision, that might get you to almost the same place

Revenant said...

think that the United States is a democracy, when it is, of course, a republic

That's like saying "you think that's a fish, but it is really a tuna".

dperry said...

"Why do the so-called Constitution Lovers always want to change the Constitution or eliminate portions of it?"

Why does garage mahal (and Milbank) hate:

--black people? (13th-15th & 24th Amendments)
--women? (19th Amendment)
--inhabitants of DC? (23rd Amendment)
--18 to 20-year-olds? (26th Amendment)
--income taxes? (16th Amendment)
--popular democracy? (17th Amendment)
--fixing silly mistakes that cause constitutional crises? (12th Amendment)
--freedom in general? (1st-10th Amendments)

See, I can be disingenuous and make up straw men, too.

dperry said...

"Federal supremacy is a constitutional principle, and we'd be undermining that. "

I'm getting really tired of people leaving out the other half of the issue here. The Constitution makes the feds supreme *only in those places where you need a unified national policy*, i.e., the military, printing money, creating a free-trade zone, dealing with other countries, etc. It does not make the states utterly subordinate to the national government: nothing in the Constitution as written supports that idea, the 10th Amendment explicitly contradicts that idea, and with the possible exception of Hamilton, none of the Founding Fathers wanted that to happen. The Constitution was meant to BALANCE the states and the feds, period.

mindplusplus said...

Andy Johnson posits: "given the recent history of Congress ignoring their constituents maybe they have every right to fear it."

Oh, please. If such an amendment passes and is ratified, so what? Congress will just delegate their dirty work to unelected bureaucrats the way they always have.

mrkwong said...

The Constitution is not a building; it's somewhere between a building code and an instruction manual. When you figure out that wiring an outlet a particular way eventually causes fires, you revise the code.

The sclerotic condition of this nation's politics is made clear by the length of time since we've actually passed an Amendment; for the first 150 years or so it was common enough practice.

As for the notion that states representing a minority of the country's population might be able to override legislative actions - I'd regard that as a recognition that even the protections currently in the Constitution, including the structure of the upper house, are insufficient these days safeguard the interests of smaller and less-populous states.