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.

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.

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.

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