Monday, November 22, 2010

Conservatives Defend "Repeal Amendment"

Randy Barnett (a Georgetown University law professor) and William Howell (Speaker of the Virginia House of Delegates) defend the proposed "Repeal Amendment" in today's Wall Street Journal. If ratified, the Repeal Amendment would allow 2/3 of the states to repeal federal laws.

In a recent blog post, I describe the Repeal Amendment as "useless." Barnett and Howell, however, believe that the proposal would restore power to the states. But, even assuming that that federal government has trampled over the will of the states, this does not make the amendment necessary.

Barnett and Powell operate under the mistaken belief that:
At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse (boldface added).
This argument, however, ignores the tremendous influence that states have in the national legislative process. Although, as the Supreme Court has held, individual members of Congress represent "the people," rather than states, they undoubtedly protect state interests as well. States are absolutely capable of utilizing the national political process to protect their individual or collective interests.

Furthermore, if the legislatures of 2/3 of the states oppose a particular piece of legislation, the voters in many of those states probably disfavor the measure as well. The present system does not disallow states from exercising political power in Congress to repeal unfavored legislation.

Altering Constitutional Structure: Less Representation for the People
The proposed Repeal Amendment has a subtle, but dangerous, dimension to it. The Framers of the Constitution divided Congress into two houses. The House is popularly represented; in the Senate, however, power is distributed evenly across the states. The Framers believed that this system would result in a deliberative legislative process.

The Repeal Amendment, however, would disturb this constitutional structure. Legislators -- not voters -- from 2/3 of the states could repeal federal legislation, regardless of the population of the respective states. The proposal would transfer national legislative power from the people (represented in Congress) to state governments. Furthermore, the proposal would allow 2/3 of even the most sparsely populated states to alter federal law. This is not the framework that the Framers envisioned.

This proposal mirrors recent arguments by conservatives who want to repeal the 17th Amendment, which allows for the direct election of Senators (by voters rather than state legislatures). In fact, Barnett and Howell describe the impact of the 17th Amendment upon the states as "costly." Thus, while many conservatives -- such as members of the Tea Party -- claim to favor popular politics, the Repeal Amendment would diminish a check that the people have over the national legislative process. The Repeal Amendment is simply another version of conservative opposition to popular politics embodied in the 17th Amendment and in other parts of the nation's constitutional structure.

1 comment:

Darren Lenard Hutchinson said...

So, this is just a veiled effort to chip away at the 17th Amendment.

Real Time Analytics