Still a Good Idea

Tuesday 12 October 2010 - Filed under Constitution + Government

In a previous post I mentioned that the so-called “repeal amendment” was a good idea. It still is. The American Spectator:

LAST YEAR, Randy Barnett, a constitutional law professor at Georgetown University Law Center, took to the Wall Street Journal to argue that the states should use their power under Article V to call a convention to propose a federalism amendment aimed at curbing congressional power. He later expanded on the idea in Forbes, offering a 10-point “Bill of Federalism.”

Of all the amendments he proposed — which included, among other things, limiting congressional power under the Commerce Clause to its original intent and granting the president line-item veto power — the one that has gained the most traction was what he calls the “repeal amendment.” The very simple idea would be to amend the Constitution to allow two-thirds of the states to rescind any federal law or regulation.

The advantage this has over other proposals is that it would not only be a vehicle to address current matters such as ObamaCare, but it would also be available to combat any future abuses by Congress in decades to come. It would also restore a check on federal power that was lost when the nation moved from state legislatures appointing U.S. senators to having direct elections by the people.

“It allows states to provide an extra veto on abuse of federal power,” Barnett said of his proposal.

Barnett emphasized that the amendment would be structural rather than tailored to a specific issue. “That means it actually creates a check and balance like the rest of our structural constitution that’s still in effect,” he said. It could be used, for instance, to overturn ObamaCare, or to block the Environmental Protection Agency from capping carbon emissions through the regulatory process.

He added, “It’s self-executing, meaning the courts don’t have to be relied on to enforce it.”

The idea caught the attention of Richmond Tea Party leader Jamie Radtke, who said that the concept has piqued the interest of state legislators, grassroots activists, and business owners who are seeking ways to rein in the federal government.

“It’s nonpartisan, because it’s not a policy amendment,” Radtke said. “So it should appeal to both parties, because it allows state legislatures to check a Republican or Democratic Congress.”

This may well be the best political idea to come in a while, specifically because it isn’t about policy, but procedure, meaning that no party gets a built-in advantage. Just as procedure such as this might turn over Obamacare, it could also turn over something like a federal gay marriage ban if there is sufficient support from the states. As another check and balance against congressional overreach, this idea is fantastic.

2010-10-12  »  madlibertarianguy