We recently attended a meeting where Speaker of the House of Delegates, William J. Howell discussed the effort to pass a constitutional amendment called the Repeal Amendment. The idea is to allow 2/3 of states to repeal any Federal law.
It is now endorsed by such notable conservative thinkers as constitutional law
professor Randy Barnett, television host Judge Andrew Napolitano, and radio
talk show host and former chief of staff to Attorney General of the United
States Ed Meese, Mark Levin.
Why don’t we support this…
1. The pathway to ratification is a time consuming long shot.
The closest any amendment has come to passage was the Equal Rights Amendment. That took almost a decade of drama to fail. We don’t think we have a decade to wait to fix what is broken..assuming this would actually do this.
2. The plan to fast track this is dangerous.
The plan is to try and call a limited Constitutional convention…and the states would see the power and momentum of this and go ahead and ratify at the state level. We would essentially play chicken with Congress and force them into a more traditional ratification process to avoid the limited use Consitutional Convention. If the bluff is called, Howell states that Va members of the convention would be under strict orders to address nothing but the repeal amendment. But what would happen if other states could get enough support to introduce other ideas….even if VA left…if enough states agreed to it….they could conitnue to have a Convention on other ideas. Sound farfetched? That’s how the last Constitutional Convention happened.
Delegate Bob Marshall does a nice job of laying out the pitfalls here in this article.
3. The States Already Have the Power
An amendment to the Constitution is not needed. The States already have the power to “nullify” unconstitutional federal over-reach. In 1798, Thomas Jefferson and James Madison drafted the Kentucky and Virginia Resolutions in opposition to the Alien and Sedition Acts. Adams and the federalists passed the Acts to suppress criticism of the President and Congress. Madison and Jefferson contended that the Acts were void as they were unconstitutional. Further, this determination could be made by individual States under the compact agreement between the States that created the Federal government as its limited agent. Given that Jefferson and Madison are the fathers of the Declaration of Independence and the Constitution, this concept of State nullification has high pedigree and legitimacy. This topic is covered extensively by Thomas Woods in his book “Nullification”, and at the 10th Amendment Center.
Some argue that the ultimate arbitrator is the US Supreme Court under Article III of the Constitution especially given the Marshall court’s Marbury decision. However, James Madison was quite clear in the Madison Report of 1800 that the Supreme Court is the final arbiter among the branches of the federal government, but is not final arbiter regarding matters between the States and the agent it created- the Federal Government. Thomas Jefferson repeated these same sentiments during his lifetime.
Although most have never been taught this history and we have largely strayed from exercising these State powers, it does not mean that we cannot reassert these powers.
These powers have been used and are currently being asserted by many courageous States, including:
- Wisconsin’s righteous refusal to acknowledge the Federal Fugitive Slave Act and the supporting Supreme Court ruling requiring escaped slaves to be returned to slave-holders prior to the Civil War
- California’s Medical Marijuana law and practices
- Twenty five states passed legislation opposing the Federal Real ID Act and are not implementing the law
- Seven States have passed Health Care Freedom Laws to oppose of “ObamaCare”, and legislation is pending in 16 other States.
4. It won’t work as intended…
Current powers allow individual States to say “no”. The proposed Repeal Amendment requires 2/3rds of the States. This hurdle effectively creates a new, higher threshold. Therefore, it limits our existing freedoms and liberties and does not expand it. Realistically, how likely is it to get 2/3rds of the States to agree? Maybe under the right conditions once in a blue moon but probably not very often. This proposed Amendment would be a tool that will rarely be effective. Plus supporters of the proposed amendment may contend that this amendment supplements existing Constitutional liberties. However, we know too well how the very words we hope will protect us are used in the future against us. Interpretations around the general welfare and commerce clauses are classic examples. And promises are promises. The Federalists promised anti-federalists that the Constitution would expressly limit Federal power at the time the Constitution was debated during ratification. Despite those promises, the Federalists promptly moved to extend Federal powers after ratification, and the rest has been the history.
This proposed Amendment will likely be twisted and be used to assert primacy and overrule existing State powers and remedies. This is the very nature of the problem – how well-intended language is reinterpreted and misused to limit liberty and expand central powers. Is this a chance worth taking given the track record in Washington?More on the impracticality of this amendment here.
We need to pursue nullification and theFFVA would do just that. Some Tea Party groups have been seduced into supporting this idea. But this Tea Party can’t do that now that we know all of the facts.