Unappealing Repeal Amendment

The genius of American government is contained in three basic principles. One is equality. Every human being has certain unalienable rights that all legitimate governments are obligated to respect. The second is democracy. All legitimate powers rest on the consent of the governed, and the consent of the governed must be frequently expressed through the device of majority rule. The third is divided government. The government is divided first between the people and their elected representatives, and then between the people of the United States and the peoples of the various states. Likewise, the Federal Government was divided into three branches and the national legislature into two houses.

The genius of the Philadelphia Convention was to create a balance between the distinct offices of government that would preserve all three of those principles. The House of Representatives is the most democratic part of the Federal Government. California has 53 times the representation of South Dakota. The Senate is manifestly undemocratic. South Dakota and California are equal. The Supreme Court, nine unelected old folks, can overrule an act of Congress.

Dahlia Lithwick and Jeff Shesol, writing at Slate, think that a proposed Constitutional Amendment threatens this balance. Unaccustomed as I am to agreeing with Lithwick, I think she is right. Here is the language 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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

There are a lot of things wrong with this. First, it arises out of one of the most common political vices: the idea that we ought to change the rules because our side is losing too many ballgames. The Repeal Amendment website informs us that "The federal government has usurped the power that the Founders originally intended for the States." All that means is that the backers of the amendment are not happy with what the government created by the Founders has been doing.

Second, every member of Congress is elected by the people of the various states. Senators are elected at large, and Congressmen mostly by districts. If the people of the states are unhappy with what Congress has been doing, they can bloody well elect Tea Party or Green Party or who knows what party candidates. If you think that the states ought to get more protection, back state's rights candidates. If you fail to elect enough of them to make a difference, that's baseball.

In the Senate, under traditional rules, a mere forty-one Senators can block legislation. Who needs a stinkin' two thirds of the states? The founders built in plenty of protections for the states. If they have failed, it's because the people don't seem to want to use them.

Third and worst, the repeal amendment subverts Republican Government as designed by the founders. That system works because we elect representatives to make policy and then hold them solely responsible on the next Election Day. If we empower state legislatures to overturn acts of Congress, then who will be responsible for Federal policy? Not Congress, since their hands will be tied by the state legislatures. Not the latter, since they can't pass legislation on their own. The Repeal backers say they want to restore the Constitution. Their amendment would undermine the very logic of the Founder's system.

The Repeal Amendment is a bad idea for the same reason as the state initiative and referendum systems are a bad idea. We give our state governments the responsibility for making comprehensive policies and then tie their hands on any issue we care about. This leads to dysfunctional government. See California. The repeal amendment would not be so bad, I suppose, because of its supermajority requirement. Yet if it did anything at all, it would be bad. Let's hope this thing has no traction.

Comments

[Donald Pay]

KB says, "We give our state governments the responsibility for making comprehensive policies and then tie their hands on any issue we care about."

The intitiative and referendum doesn't tie the Legislature's hand. Any law passed by initiative can be changed or repealed by the Legislature. Any bill not enacted through the referendum can be introduced in any subsequent session of the Legislature.

[Bill Fleming]

It seems to me that the States already have this power, don't they KB? What's the difference between this proposal and the provisions already in the Constitution for making amendments and holding Constitutional Conventions? i.e. is there a real distinction, or just a semantic one?

[KB]

Donald: It can be very hard for the legislature to act in open defiance of the voters in the way you suggest. What almost always does happen is that the popular law remains on the books, and the legislature has to work around it. This does no promote either popular or efficient government, it just sets government at odds with itself.

Bill: Overturning an act of Congress by a two thirds vote of the states would affect only that act. Amending the Constitution would have much more lasting significance.

[Donald Pay]

KB,

My experience was the Legislature acts in open defiance of the voters from time to time. When the Legislature acts in open defiance of the voters, citizens in some states have access to the initiative and referendum. I grant you that when the public has spoken on an issue, the Legislature needs to approach changing such measures with some humility, but changes are not precluded.

[WhiteRose]

Good article!! It is not something we find in the animal kingdom...it's only a human invention so it's not always respected. I believe the democrats wanted to make changes at the last moment when it came to replacing Kennedy when he was a senator & before he passed away. Change is not alwasys good.

Might mention a new book I just read that everyone will enjoy. It's where Americans actually take a stand on keeping their freedoms. Will be giving it to other this holiday (all I can afford) cause it's a thriller. I recommend it.

www.booksbyoliver.com

I also thought the states already had this right. Of course, getting 2/3 of states to marry-up would be a problem. Even the ERA amendment couldn't do it.

[Bill Fleming]

KB, yes, I get your technical distinction, but even so, the mechanism is there, is it not? Presumably, if the States, via their US congressional representatives — or alternately, via their respective State legislators and Governors could make a Convention happen — they could override any act of Congress or anything else they wanted to, couldn't they? Same with a Constitutional Amendment. Some kind of "Congress shall pass no law" deal. Just trying to get some clarity here. No sense making a new Amendment just so you can "amend" things. We already have that mechanism, right?

[Jimi]

Isn't any of this addressed by the Tenth Amendment?

[KB]

Jimi: Nothing is addressed by the Tenth Amendment.

[William]

KB,

"Nothing is addressed by the Tenth Amendment", may be the problem.

"All that means is that the backers of the amendment are not happy with what the government created by the Founders has been doing", IS the Federal government of today REALLY what our Founders (and the state delegates of the state that ratified the Constitution) envisioned?

The 3 branches of the Federal government may provide a check and balance between the 3 branches, but do they serve to provide a check on the expansion of power of the Federal government over the states?

"Obamacare" is certainly at the center of the current controversy over the power of the Federal government to enact and enforce law that states feel are unconstitutional, but perhaps the time has come for a "Repeal Amendment" or "Nullification" to be debated as options to provide a more direct check on Federal power.

[KB]

William: The Courts will rule on the constitutionality of Obamacare They will uphold it, or not. That is what the Founder's envisioned. They did not try to predict which policies would be at stake two hundred years later.

The tenth amendment tell us this: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Great. Now: which powers are those?

[William]

KB,

My question is, did the Founders envision that the Federal government alone determines the limits of its own powers? Certainly, the Supreme Court is, and always has been, "politicized".

When hotly contested issues, legislated and passed into law with narrow margins and ultimately upheld by a 5-4 margin in the Supreme Court are defined as Constitutional, was it the Founders intent that the States are without recourse?

Article V is an option, but is it as viable an option as the Founders envisioned? It seems flawed in providing a real check on Federal overreach. We now have Federal legislators and judges that have openly admitted that they feel they have no real constraints on what the Federal government can do.

I'm not arguing that amending the Constitution should be easy, far from it, but when the Federal government claims a law is Constitutional but a super-majority of the States hold that a law is not, I think we need to consider exactly what remedies we need to have in place to regain limits on the Federal government.

I'm pleased we're actually beginning to have serious debates on this issue. When majorities in U.S. view the Federal government as too intrusive and powerful, I think we HAVE to. (http://www.gallup.com/poll/143624/majorities-view-gov-intrusive-powerful.aspx)

[William]

KB,

"The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people." Great. Now: which powers are those?

Article I of the U.S. Constitution. These are all the powers that the Congress has.
# Borrow money
# Regulate commerce among the states
# Regulate naturalization
# Regulate bankruptcies
# Coin money
# Fix weights and standards
# Punish counterfeiters
# Establish post offices
# Establish post roads
# Record patents
# Protect copyrights
# Create federal courts
# Punish pirates
# Declare war
# Raise an army
# Provide a navy
# Call up the militia
# Organize the militia
# Makes laws for Washington, DC
# Make rules for the Army and Navy

Plus 2 more:
The Senate can impose virtually any regulation in the context of a Treaty, which makes treaty ratification a matter of extreme importance that should always be subject to open and substantive debate.

With the ratification of the Sixteenth Amendment, Congress can impose a direct tax upon the American people.

[Donald Pay]

There are other important clauses:

(1) Necessary and Proper Clause

"To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof."

(2) General Welfare Clause:

"The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;"

[KB]

William: Does Congress have the power to create an air force? The Constitution doesn't say so. It mentions only an army and a navy. Do we need to amend the Constitution every time something like that comes up? If we did, the Constitution would become what state constitutions frequently are: chaotic mixes of permanent principles and temporal policies.

I am with Donald on this one. The necessary and proper clause in fact gave Congress the power to do pretty much whatever it thinks necessary unless what it wants to do is explicitly forbidden by the Constitution. See McDonald v. Chicago. Perhaps it would have been better to a strict constructionist regime, but that is not the government we have had for the last two hundred years and more. Chief Justice John Marshall expanded the powers of the federal government about as much as anyone, and he was a Federalist!

[William]

KB,

I do understand that we've drifted from the strict constructionist interpretation, with the "consent of the governed" and the debates over the "elasticity" of the General Welfare and Necessary and Proper clauses began with the ratification of the Constitution.

My position is that we've reached a point where a majority of Americans feel that the scope and power of the Federal Government is TOO great. At this point in time, my concern is how do we best address limiting (and reversing) the scope and power the Federal government has assumed? A stable society requires the consent of the governed and the Federal government is at risk of losing it.

[auto parts stores online]

I'm afraid it's all a fraud. Unfortunately, almost a decade only everything revolves around money. People who until recently had an enviable character fall prey to these temptations. Unfortunately, society as a whole began to decline and only fault I see greed. We humans would be to think that there are many other things more important than money. And maybe we will be able to change something in our thinking.

[KB]

William: we haven't "drifted away" from strict constructionism. We never practiced it. It has always been a creature of theory and rhetoric.

I share your concern over the expansion of federal power. I was appalled by the health care bill. But the people have plenty of avenues to express their consent or lack thereof. The recent election was one of them. I expect just now that 2012 will be another.

[William]

KB,

I'll remain an "optimistic pessimist" and hope that we are able to successfully rein in the scope and power of the Federal government in an orderly fashion.

That said, I'll refer yet again to "Herbert Stein's Law," which he expressed as "If something cannot go on forever, it will stop."

We have a government we cannot afford, that's not worth the money we're paying for it. The "consent of the governed" is being sorely tested.

[Tika]

I agree with John. A rational pesorn (not to say all judges are rational) would assume that a later (in time) amendment was made with a full and complete understanding of the constitution as it stood when the amendment was being discussed. Hence, any conflict between that later amendment and an earlier one would be resolved in favor of the later amendment, even if that later amendment did not specifically overrule the earlier amendment. In political theory the term used is binding . Namely, a prior act of a legislature (or, in this case of the citizen's themselves) can never bind a current or future legislature. The basis for this theory is simply that power is always exercised in the present with full knowledge of the past but never with full knowledge of the future. However, this would only apply to a constitution with in the state. I think it's a very interesting question as to what would happen if Scotus got involved. It's argued that when the states were accepted into the Union, the Federal government (as a proxy for the other states themselves) accepted them on the condition that they were obligated to be bound by the Federal constitution when it conflicted with the state's own constitution (Utah is a good example of this). However, the exact parameters of this theory have never been fully explored. For example, given that marriage is traditionally left to the states, I find it unlikely that Scotus would rule any state constitutional change in that regard a violation of the federal constitution. But I could imagine situations (for example, the Commerce clause) where Scotus would rule a validly passed state constitutional amendment federally unconstitutional. OTOH, if there was a federal constitutional amendment that defined marriage in a certain way, it would be an open question as to if and how that would apply to the states via the 14th amendment to the US Constitution.

[Gabriel]

1. Article 1 Section 8 did not allow for the federal incmoe tax prior to the 16th Amendment. That is why the 16th Amendment was needed.2. You would say that it is now unconstitutional the same way as you would say 2+2=5 or anything else that is not true. It is now Constitutional, because the 16th Amendment made it Constitutional.