The Case for a 'Repeal Amendment'

WSJ ^ | September 16, 2010 | RANDY E. BARNETT AND WILLIAM J. HOWELL

[Stonewall1]

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional "Repeal Amendment." The Repeal Amendment 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"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

[Cacique]

The oligarchy will not allow it. History proves that those in power never give up ppwer willingly.

[supercat]

How about this as a bonus:

1. Because the Constitution is the supreme law of the land, no government action contrary to it is, or ever has been, legitimate. By definition, illegitimate actions are not, and never have been, part of any government agent's legitimate duties. Except as noted in section 2, no statute or law which would grant government agents civil and/or criminal immunity for actions on duty has ever been legitimately applicable to illegitimate actions.
2. The state shall not impose criminal punishments, nor punitive civil judgments, against a person who acts in a fashion which a jury determines he reasonably believed to be legitimate. The jury shall be responsible for determining whether any claimed belief of legitimacy is reasonable. Criminal and civil defendants shall be entitled to present to the jury evidence they believe justifies their beliefs.
3. In some cases, illegitimate actions by government agents may require remedies beyond those prescribed in this Constitution. Any judge or other government agent seeking to impose such remedies must expressly state what previous actions by the government were illegitimate, and why the Constitution would be better served by the proposed remedy than by anything expressly provided for in the Constitution itself.

How do those sound?

[Charlespg]

Yes

But we need congressional term limits as well

[phockthis]

“Repeal 16 & 17”.

Exactly...
Take OUR money away from them is the answer...

[phockthis]

sfl

[Monorprise]

Rout all Federal tax revenue thou State controlled escrow accounts and then the people will be able to uses their more local and independent State governments to help compel compliance with the constitution, from the perspective of the governed rather then the governing.

[hosepipe]

Probably can't repeal BUT they can unFUND IT..
ALSO THEY CAN DeFUND other federal bureaucracies....
They can also UNderfund existing programs.. causing downsizing..

Just the hint they might do this could restart the economy..
Actually doing it will do it..

The left will/would go ballistic.. the debates on underfunding would be precious.. OH! THE THROWING THE DIRT IN THE AIR.. THE TEARING OF CLOTHING would be high drama and entertaining..

[ForGod'sSake]

Thanks dynachrome! I'm more or less in agreement with Monoprise. At a 2/3 of the states threshold to effect a repeal, the bar is just set too high to expect any real agreement except on the most agregious feral power grabs. The slow march would likely continue IMHO.

Also, it seems to me the author conveniently(?) ignored the inherent power of the individual states to nullify overreaching feral law. Of course, the more states involved the better.

~pinging~ the 10th Amendment Division for additional thoughts and comments.

Virginia may be poking the federales again. Good on 'em!

Please ~ping~ me to articles relating to the 10th Amendment/States Rights so I can engage the pinger.

If you want on or off the ping list just say the word.

Additional Resources:

Tenth Amendment Chronicles Thread
Tenth Amendment Center
Firearms Freedom Act
Health Care Nullification

CLICK HERE TO FIND YOUR STATE REPRESENTATIVES

[conservatism_IS_compassion]

Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments,

38 states is enough to ratify an amendment; two thirds are all that is needed to call a convention. That's only 34 states.

There is great trepidation about calling a convention which could, for instance, propose to repeal or gut the Second Amendment. OTOH it is, IMHO actually conservative to promote amendments to the Constitution. That seems paradoxical, but in fact it is not. The problem we face is that the courts have been systematically mooting parts of the Constitution. Attempting to amend the Constitution the legitimate way is a statement that the Constitution means what it says until it says something else via amendment ratified by 38 states.

The article proposes to empower 34 states to overrule Congress, without imposing a high bar on Congress to overrule the states. As a practical matter I suppose that's necessary, since Congress could easily insert or remove a comma somewhere and evade any requirement for a supermajority. Yet that is an entirely unsatisfactory and inadequate curb on congressional overreach. My own preference would be for an amendment which removed the Senate from the "advise and consent" loop for confirmation of SCOTUS justices. That has done more harm than good, generally, because it has acted as a check on conservative presidents but not liberal ones. I would have an amendment which would bypass Senate confirmation for judges which the president stood before the electorate and proposed to nominate at least two months before the election which he won.

I would also have an amendment which enabled 2/3 of the states to order the retirement of any justice.

IOW, I propose that the people, via the Electoral College, determine not only the POTUS but also who could be elevated to SCOTUS - and that a supermajority of the states should determine who is not on SCOTUS. I think there would be a lively hope, under that system, that SCOTUS would apply the written Constitution of the United States in good faith to all cases brought before it.

Simply overturning an act of Congress would not necessarily bring the federal government to book. But asserting primacy of the states over the judiciary would seem likely to do it. Clearly, Congress is extremely unlikely to propose such amendments, since it would be weakening itself in relation to the states. But the mere act of convening a convention to propose amendments outside the control of Congress would enable the states to get everyone's attention. In any case, Congress should be stripped of the power to pack the court. That by itself would justify calling a convention.

[Still Thinking]

Governors of 35 states have already filed suit against the Federal Government for imposing unlawful burdens upon them. It only takes 38 (of the 50) States to convene a Constitutional Convention.

Careful what you ask for. You might get it.

Specific amendments circulating among the state legislatures would be a far better thing.

[jospehm20]

Repealing the 17th would be good. Repealing the 16th would be better. If the government could not use income tax as its main source of revenue I think everything else would pretty much fix itself. That would take a lot of control over every person and business in the USA away from the idiots in DC.

[reg45]

Add the members of the Executive and Judicial Branches to that list, and it is even better.

[reg45]

If the Federal government were dependent upon the states for its money - as was originally intended - it would be far more attentive to the needs and desires of the various states. Furthermore, programs which could be more easily and efficiently handled by the various states would be done at the state level.

[SunkenCiv]

Thanks ForGod'sSake.

The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation.

[Repeal 16-17]

The federal government has gone so far afield of the Constitution we might need this amendment:

SECTION 1 - Articles I, II, and III of this Constitution are hereby repealed.

SECTION 2 - [Replacement for the federal government]