Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."Some powerful Republicans back the proposed amendment, including House Minority Whip Eric Cantor of Virginia.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.
Analysis
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.
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"
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