The case for the 'Repeal Amendment'
Published in Free Lance-Star October 17, 2010
Op-Ed by Speaker William J. Howell
I recently attended a symposium at Montpelier the home of James Madison who was known as the "Father of the Constitution." We gathered at a historic place to celebrate a historic moment in our nation's history: the Sept. 17, 1787, signing of the U.S. Constitution.
More than 200 years ago, our nation's founders first debated the idea of independence, penned the fundamental principles of freedom, and ultimately enshrined in the U.S. Constitution necessary "checks and balances" on the concentration of power. Then, the challenge to the liberties of the people came from a tyrannical monarchy across the sea.
Today, that challenge comes from our own federal government that has either defied or ignored virtually every constitutional limit fashioned by the Framers to confine its reach and thus guard the freedoms of "we the people," who are sovereign.
This year's celebration of Constitution Day took on renewed significance as millions of Americans are objecting to a federal government that has bailed out or taken over banks, car companies, and student loans, all while it prepares to take charge of the practice of medicine. Adding insult to injury, the federal government, with no balanced-budget constraint (and a $13 trillion debt to prove it), keeps trying to tell states with balanced-budget requirements how to spend.
James Madison saw the danger of an unfettered Congress: "If Congress can do whatever in their discretion can be done by money, and will promote the General Welfare, [then] the Government is no longer a limited one, possessing enumerated powers, but an indefinite one, subject to particular exceptions."
IMPRACTICAL SOLUTIONS
One cause of today's unhealthy concentration of power in the federal government is political, with elected officials promising solutions to social problems that are beyond their power to deliver. Another is judicial, with federal judges who have allowed Congress to exceed its enumerated powers for so long that they no longer entertain even the possibility of enforcing the text of the Constitution.
Regardless of which political party may happen to wield it, one of our nation's most serious challenges is an imbalance of power. Too much of it is held by and concentrated in a distant and unaccountable federal bureaucracy, at the expense of citizens throughout the country who have more direct control over their lives,money, and futures through state governments.
Fortunately, our nation's founders in their wisdom did not leave states helpless in those times when the federal government's power becomes out of balance. They included in the U.S. Constitution a way forward when the Congress fails to effectivelyserve the people.
Because the future of our republic is at serious risk, in our next session in January, the Virginia General Assembly in which I serve will consider proposing a constitutional "Repeal Amendment." It uses all the means our Founding Fathers entrusted to the people under Article V to propose an amendment to the U.S. Constitution that would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:
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.
While it's preferable that Congress propose such an amendment for ratification by the states, it is appropriate for the states to exercise their right according to Article V in the absence of congressional action. Like so many, I believe the Repeal Amendment, when ratified to the Constitution, will restore the proper balance of power between the states and federal government intended by our founders. With overwhelming levels of national debt, unbridled federal mandates, and unconscionable deficit spending by Washington that has mortgaged the futures of unborn generations, it is our duty to use every tool available to help restore our republic.
ANOTHER WAY
Currently, 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 U.S. Constitution. The Repeal Amendment provides states with 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.
As this national debate unfolds, we must not let the critics confuse the Repeal Amendment with the power possessed by the federal courts to "nullify" unconstitutional laws. Nullification occurs when a state refuses to comply with a federal law because the state, not the courts, deems the law unconstitutional. The Repeal Amendment is not saying whether a federal law or regulation is unconstitutional, but rather that two-thirds of the states don't like it.
Unlike nullification, the Repeal Amendment would allow two-thirds-currently, 34-of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, state repeal power is more accurately understood like the president's veto.
Motivated by trust in the people, this amendment reflects confidence in the collective wisdom of men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, the Repeal Amendment allows thousands of democratically elected representatives outside the Capital Beltway to check the power of 535 elected representatives in Washington, D.C.
Of course, Congress could re-enact a repealed measure if it decides that two-thirds of state legislatures are out of touch with popular opinion. Congressional re-enactment would require merely a simple majority. In effect, the states, with repeal power, could force Congress to take a second look at a controversial law.
PRECEDENTS
Amending the U.S. Constitution is not an action to be taken lightly. While Americans revere our nation's fundamental law, they have acted politically to improve it. The 13th and 14th Amendments appropriately limited the original power of states to violate the fundamental rights of their own citizens, while the 15th and 19th Amendments extended the right to vote to African-Americans and women. And the 21st Amendment repealed another "progressive" reform: the 18th Amendment that empowered Congress to prohibit the sale of alcohol.
Getting two-thirds of state legislatures to agree on repealing a federal law or regulation will not be easy. It will happen only if the law or rule is highly unpopular. But perhaps its most important effect will be deterring further expansion of federal power. Suppose, for example, that Congress decides to nationalize private pension investments. Just as it must now contemplate a presidential veto, so too would Congress need to anticipate how states would react.
Congress has far exceeded the legislative powers granted it in the U.S. Constitution, thereby encroaching on the powers that are "reserved to the states respectively, or to the people," as the 10th Amendment affirms, and the rights "retained by the people" to which the Ninth Amendment refers.
The Repeal Amendment provides a timely, practical, and nonpartisan check on the threat to American liberties posed by a runaway Congress and today's out-of-control federal government. As James Madison so wisely understood, having tools in place to check abuses of power is what the U.S. Constitution is all about.
