Repeal Amendment’s Practical Application
If 33 states can muster support to kill a law, how would it have gotten enacted to begin with?
My colleagues, Doug Mataconis and Steven Taylor, have written several good pieces discussing the theoretical implications of the Repeal Amendment being proposed by the Republican leadership.
Under the overwrought title “Incoming House Majority Leader Endorses Plan To Destroy Constitution,” Doug traces the origins of the idea, discusses the history of Nullification during the pre-Civil War period, and argues this amendment
would alter the relationship between the states and the Federal Government in a way that even the Founders themselves never contemplated. For example, even though it has long been the rallying cry of the so-called “state’s rights” crowd, there is absolutely no support for the argument that the Constitution contains any power allowing the states to nullify a Federal law they deem to be unconstitutional. In fact, James Madison himself rejected the very idea during the controversy over the Alien and Sedition Acts, which occurred only a few years after he had participated in the drafting of the Constitution. Granting the states the power to overturn a Federal law, whether for policy or Constitutional reasons, would do more to bring down the Federal structure of the American government than even the Civil War tried to do.
In a followup, “Further Thoughts On The Repeal Amendment,” he traces the move to consolidation of power in the Federal government owing to the Civil War, a series of Supreme Court decisions, amendments to the Constitution, and the tendency of people to move from state to state for economic reasons. The upshot is the creation of a polity that the founders wouldn’t recognize and a cultural shift such that most of us think of ourselves as Americans first and only secondarily — if at all — residents of a particular state.
Finally, in “A Question About Representation,” Steven invites a discussion as to the degree in which the interests of a state are separable from the interests of the people living in said state.
But there’s a more practical point that I’m having trouble understanding. Here’s the Amendment in a nutshell, as described by Dana Milbank:
It would allow the repeal of any federal law – from civil rights to health care – if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.
The theoretical issue doesn’t bother me overmuch, in that the states currently have equal representation in the Senate. But here’s the thing: If 33 states can muster support to kill a law, how would it have gotten enacted to begin with? It’s much easier to kill the bill in the Senate, where a mere 40 percent can veto most any legislation. (There’s the Reconciliation workaround, which can be theoretically applied to anything that the parliamentarian allows to be called budget related, but even there 50 percent can stop its passage.) So, what good would it do?
One could envision a bill being signed into law and becoming wildly unpopular at some later point in time, whether through cultural change or unintended consequences manifesting themselves. But, again, if two-thirds of the state legislatures can get together and nullify a law, one would think Congress would be falling all over themselves to change it and get credit. Again, it’s the Senate that’s the usual stumbling block to things but it’s difficult to imagine 3/5 of the Senators filibustering legislation that 2/3 of the states want overturned.