Sunday, November 21, 2010

Conservatives Propose Useless "Repeal Amendment"

Some conservatives want to amend the Constitution in order to allow states to repeal federal legislation. The so-called "Repeal Amendment" would provide that:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Some powerful Republicans back the proposed amendment, including House Minority Whip Eric Cantor of Virginia. Cantor says that the amendment would restrain the national government and return power to states.

The Repeal Amendment faces an uphill battle. Congress has considered thousands of proposed constitutional amendments throughout history, but it has only approved 33 for ratification by the states. Of those 33, only 28 were ultimately ratified. The constitutional requirement that 3/4 of states ratify amendments proposed by either a 2/3 vote of Congress or 2/3 of states seeking a constitutional convention dooms most proposed amendments.

Also, many of the amendments to the Constitution came at critical points in American history. The first ten of the amendments -- the Bill of Rights -- were ratified together and were actually conceived of prior to the ratification of the Constitution itself. These amendments were added in order to quell fears in several states regarding a more powerful national government. Three other amendments -- the 13th, 14th and 15th -- were ratified after the Civil War. By contrast, the proposed Repeal Amendment lacks the historical impetus that led the the ratification of other constitutional amendments.

Furthermore, the Repeal Amendment seems utterly unnecessary. Even assuming its proponents' claim that congressional power is too large, the amendment will add nothing to the powers that states already have at their disposal to alter this situation. If, for example, 2/3 of state legislatures oppose federal laws, it is highly doubtful that the laws would remain on the books. In addition, it would be much easier for those states to lobby Congress to repeal undesired legislation, by a simple majority vote, than to coordinate votes by at least 2/3 of state legislatures. States are well represented in Congress, and they do not need the Repeal Amendment in order to exercise a check over congressional power.

Accordingly, the Repeal Amendment sounds more like a political gimmick than a substantive proposal for constitutional change. In any event, because of the procedural difficulties associated with the amendment process, the proposed Repeal Amendment will not likely go very far.

Update: Two conservatives have defended the Repeal Act in the Wall Street Journal. See Dissenting Justice for a response: Conservatives Defend "Repeal Amendment"


Bill Walker said...

Professor Hutchinson is obviously unaware of certain public information in his evaluation of the repeal amendment proposal. The states on numerous occasions have submitted applications for a convention call granting the states repeal power over certain actions of Congress such as federal funding to name but one of several subjects. The fact the states now propose an umbrella amendment only serves to show the states are serious about this proposal as they have now gone from the specific to the general in nature.

This amendment is more than ideal speculation however. Given the states have applied in sufficient numbers to cause an Article V Convention call, a single application from any state on this issue is all that is required to ensure its discussion at a convention. Given the large number of previous applications surrounding this general subject of interest, passage is possible at a convention. The applications for a convention call (all 700+) can be read at and are photographic copies from official government records of state applications for a convention call.

Perhaps before the professor makes his statement he should realize the states might have discovered that lobbying Congress has proved insufficient for the need and that stronger measures are required, such as an actual power to act rather than dependence upon a compliant Congress to ensure results. Basically the professor ignores the fact Congress can refuse the states' requests; it cannot refuse an amendment granting them actual power. Such an amendment clearly will permit a shift in the balance of power between the states and Congress and given the circumstances of today, is needed.

The question is, once the professor has examined the public evidence will he then advocate for a convention call as mandated by the Constitution? He appears to suggest that by obeying the Constitution as is, all will be well. Will he be consistent in his view when it comes to a convention call already mandated by the Constitution or will he suddenly switch and urge that the Constitution not obeyed? Time will tell. His argument of "procedural difficulties" preventing such an amendment from occurring is not as strong as he, obviously oblivious to public record, would seem to think as the first hurdle has already been jumped.

Darren Lenard Hutchinson said...

Bill Walker: The fact that some states have supported similar measures does not alter my analysis at all. Historically, states like Virginia and South Carolina, among others, have even claimed the inherent power to resist the national government (nullification, etc.). This seems like another one of those ill-fated proposals.

Also, your argument is flawed because you keep saying that "the states" want a constitutional convention; you also ask whether I want Congress to disobey the Constitution. The Constitution allows for a constitutional convention upon the application of 2/3 of the states. To my knowledge, 2/3 of the states have not petitioned for such a convention. Nothing in your lengthy comment provides any evidence that they have. Do you have any evidence to the contrary?

Even if a constitutional convention on this issue took place, I highly doubt that 3/4 of the states would ratify the measure. All of this is spelled out in my blog post. Good day.

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