The Repeal Amendment

[MagisterCultuum]

Mentions of Nullification and the Supremacy Clause in recent threads have reminded me of this proposed Constitutional 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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

It may be reminiscent of the old Nullification arguments, but it is also much more restrained; a single state's attempt to overturn Federal law would be meaningless until most of the other states agree. Some of the staunchest State's Rights proponents actually oppose this on the grounds that explicitly granting the right of state nullification under such conditions would be removing the right of States to nullify laws under other conditions. Such individuals would argue that an individual state already has the right to nullify an Unconstitutional Law and refuse to enforce it within their borders, because the Supremacy Clause only applies to Laws made in Pursuance of the Constitution.


This amendment would still provide a significant check on the power of Congress though, greater than that of a Presidential veto. The president has only a limited time to veto a bill before it becomes law, and Congress can overrule him if a large enough super-majority. This proposal does not give Congress a chance to overrule the states, and does not place any time restrictions on the state legislatures either. In theory, the states could overturn federal laws that had been enforced for over 200 years. In practice though, getting enough states to agree might prove difficult.


It may we worth noting that if that if the legislatures of so many states really want to overturn a Federal law, they can already bypass Congress and try to amendment the Constitution itself in order to do so. When two-thirds of the States request a new Constitutional Convention, Congress is obliged to call one. This Convention can propose absolutely any change to the Constitution (arguably the States might be able to limit its scope, but Congress could not), but three-fourths of the states must approve the changes before they go into effect. (Of course, the last Constitutional Convention decided to amend the procedure by which the sates had to approve constitutional changes, and put the new constitution into effect before the previous conditions were met.)



What do you think of the Repeal Amendment?

Would you support it passing in its current form? If not, would you like to see if pass in some altered form?

Does it go too far? Does it not go far enough?

Is the 2/3 of all stats requirement too low? Too high?

Should it be the number of states that matters, the population of those states, or some compromise like the number of electoral votes controlled by the states that wish to repeal a law?

Should the power to repeal laws only be extended to state legislatures, or should also/instead be given to the people to exercise through ballot initiatives?

Should the amendment allow the States the power to repeal only the specific provisions they dislike (functioning like a line-item veto), or should it only be permitted to repeal a law in its entirety? (Keep in mind possible consequences of either option, such as states choosing to repeal taxes while keeping all the spending those taxes were meant to fund, or choosing to allow warrantless wiretaps for fear of defunding the whole military.)

Should it be taken further, so that the states can repeal not only Laws but also Treaties?

What about empowering them to overturn Judicial Doctrine?

What about removing people from office?

 

[Cutlass]

Congress has so many checks on it now that it's ridiculous. Adding more is insane. It is utterly reckless and irresponsible.

 

[Goodfella]

I'd imagine that if 2/3 of states would like to overturn a single federal law, there'd be adequate representation in Congress by that point.

 

[amadeus]

I'd rather just have states nullify unconstitutional federal laws on an individual basis and bypass this attempt at consensus-building which wouldn't work.

 

[Glassfan]

State nullification is so 19th Century! Today it's not so much States as it is interest groups that want to overturn Federal and State laws - and they do so in Federal Court.

Pro-Abortion groups have gotten anti-abortion laws found to be "unconstitutional" in the Federal Courts. Gay and Lesbian groups have had State marraige laws overturned by Federal Judges. Democrats have gotten Voter ID laws suspended in Red States through the courts.

And the US Supreme Court has been utilized to overturn State and Federal law since at least Brown v Board of Education (1954) and Roe v Wade (1972).

And I'd be willing to wager my Spiderman comic book collection that it will be this kind of judicial activism that ultimately decides America's direction on global warming.

 

[Formaldehyde]

Why would you possibly want to give states even more power than they currently have, especially given their history of abusing that power on such a frequent basis?

What we need to do far more than anything else is to have a constitutional amendment that strips them of almost all their current power to enact any laws.

 

[amadeus]

Why would you possibly want to give states even more power than they currently have, especially given their history of abusing that power on such a frequent basis?

Decentralization. I like Lew Rockwell's take on it which you can find here ("What We Mean by Decentralization"), but the summary version is that local governments must compete with each other and local governments are easier to contain than large governments.

What we need to do far more than anything else is to have an amendment that strips them of almost all their current power to enact any laws.

State legislatures, the Congress, or both?

 

[Formaldehyde]

Decentralization. I like Lew Rockwell's take on it which you can find here ("What We Mean by Decentralization"), but the summary version is that local governments must compete with each other and local governments are easier to contain than large governments.

Unless you are actually suggesting that the US split into 50 separate countries, that is just so much utter nonsense. There is an overwhelming need for federal governance in matters such as national defense, treaties, trade agreements, and equal rights for all. But other than deciding how to best apportion funds for various state projects, fire, police, and such at the local level, there is really no real need for state government at all. It just makes the legal system far too complex by having 50 nearly identical criminal and civil justice systems while making it a legal nightmare for companies that do business in different states.

And if you are suggesting that we do so, that is even more ludicrous.

This is the inherent problem I have with most conservative so-called libertarians. What they really want is a means of limiting basic freedom and liberty by making government as decentralized as possible. We have a long and distinguished history of some states being far more reactionary and backwards than others in this particular regard. It is time for it to finally end once and for all. Everybody in this country deserves to be treated equally and with fairness no matter where they happen to live.

 

[amadeus]

Everybody in this country deserves to be treated equally and with fairness no matter where they happen to live.

And what when federal, difficult to evade or repeal laws restrict exactly that?

 

[Formaldehyde]

You mean like the patently absurd DOMA that Obama refuses to enforce, and will only have to be repealed in one place instead of dozens of states?

There are far more laws that discriminate against various groups, some of which are even eventually declared to be unconstitutional, which have been passed at the state level than the federal level. It seems that if you are really worried about freedom and liberty as you claim, you would be far more interested in the far larger offenders. That you would want uniform laws instead of the opposite.

 

[amadeus]

The far larger offenders are the powerful centralized governments.

 

[Cutlass]

The far larger offenders are the powerful centralized governments.

The biggest offenders against liberty in the US have always been the states.

Decentralization. I like Lew Rockwell's take on it which you can find here ("What We Mean by Decentralization"), but the summary version is that local governments must compete with each other and local governments are easier to contain than large governments.

That's a theory that has been conclusively proven false by all of American history.

 

[Antilogic]

I'd imagine that if 2/3 of states would like to overturn a single federal law, there'd be adequate representation in Congress by that point.

Would someone in favor of this majority-nullification nonsense respond to this?

 

[amadeus]

The biggest offenders against liberty in the US have always been the states.

The Alien and Sedition Acts, unconstitutional detention of journalists during the Lincoln years, the draft, slavery, the internment of Japanese, German and Italian-Americans, the forced removal of Indians from tribal lands, mandatory minimum sentencing laws for drug convictions, prohibition... all things done or protected by the federal government.

 

[Cutlass]

The Alien and Sedition Acts, unconstitutional detention of journalists during the Lincoln years, the draft, slavery, the internment of Japanese, German and Italian-Americans, the forced removal of Indians from tribal lands, mandatory minimum sentencing laws for drug convictions, prohibition... all things done or protected by the federal government.

Which is a great deal less oppression than the states have done. I'm not saying the feds are saints in all this. But they have never been in the same ballpark as the states when it comes to hurting their own people.

Honestly, if I didn't know you and I saw you backing this idea I would believe you to be deeply authoritarian. If you were to design a constitutional amendment to make the US more authoritarian, this would be the one.

As it is it's just another nail in the coffin of the so-called "libertarian" program. I mean, if libertarians cannot tell the difference between and extremely authoritarian proposal like this one and a pro-liberty proposal, then how do they expect to ever get anywhere?

 

[GhostWriter16]

I'd rather just have states nullify unconstitutional federal laws on an individual basis and bypass this attempt at consensus-building which wouldn't work.

Decentralization. I like Lew Rockwell's take on it which you can find here ("What We Mean by Decentralization"), but the summary version is that local governments must compete with each other and local governments are easier to contain than large governments.


State legislatures, the Congress, or both?

I think this is usually the right idea.

However, while we are one country, I do think there are cases when the Federal government should take specific pro-liberty actions.

The problem is that they never do.

The Alien and Sedition Acts, unconstitutional detention of journalists during the Lincoln years, the draft, slavery, the internment of Japanese, German and Italian-Americans, the forced removal of Indians from tribal lands, mandatory minimum sentencing laws for drug convictions, prohibition... all things done or protected by the federal government.

Not to mention all the other modern stuff I've mentioned in another thread.

I can't wait to hear all the great stuff the Federal government has done...

 

[mitsho]

Aren't the states already represented by the Senate?

If you want to give state legislators more power akin to the German Bundesrat, then why not just scrap the Senate?

(And if it's more about a single state opposing some law, shouldn't that be focused on one state, rather than an utopian majority of 2/3 of the states?)

 

[GhostWriter16]

BTW I would vote against this amendment because the Supreme Court would use it as yet another weapon to block other nullifications and might even somehow argue that even 2/3rds can't nullify in spite of the plain meaning of the text.

 

[Souron]

This would effectively bypass the House, but not the Senate to repeal laws. That is, each state would have an equal vote to repeal, just like in the senate.

If you want that, why not just give the Senate more power to repeal laws without involving the House?

Also, allowing states to individually repeal regulations seems inappropriate. Lawmakers should of course determine who makes regulations, but they should undermine the agencies tasked with doing that by individually repealing regulations the agencies put in place.

 

[Farm Boy]

Which is a great deal less oppression than the states have done. I'm not saying the feds are saints in all this. But they have never been in the same ballpark as the states when it comes to hurting their own people.

Honestly, if I didn't know you and I saw you backing this idea I would believe you to be deeply authoritarian. If you were to design a constitutional amendment to make the US more authoritarian, this would be the one.

As it is it's just another nail in the coffin of the so-called "libertarian" program. I mean, if libertarians cannot tell the difference between and extremely authoritarian proposal like this one and a pro-liberty proposal, then how do they expect to ever get anywhere?

<coughs> You're still oversimplifying to the point of being wrong, my dear Cutlass. <cough hack wheeze>