Anytime there is any constitutional amendment proposed the first thing everyone needs to think about is basic. As Constitution Scholar Gary Alder says, “When you change your constitution you are altering your form of government.” He further states, “I can’t help but think that when amendments are proposed as readily hastily as they are these days without regard to the ramifications of those changes, it is like two doctors arguing that their method of performing a complicated operation is best—one because it takes less time and the other because it leaves a smaller scar—rather than sitting down together and discussing the interrelationship between the circulatory and respiratory systems and how the proposed operation can be performed without damaging either system. NO AMENDMENT SHOULD EVER be HASTILY DRAFTED or ONLY SUPERFICIALLY EXAMINED.”
There is a good argument the first ten amendments to the U.S. Constitution did not alter the form of government as Madison originally identified areas within the Constitution to add what we now refer to as the Bill of Rights. However, every amendment since then has impacted our form of government, most in a negative way (19thAmendment, however ladies, was a good one).
In a move that the amendment’s author, Georgetown University Law Professor Randy Barnett, says will help restore the authority reserved to the states it initially appears this might be a good amendment. ”This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states,” Barnett was quoted as saying by Andrea Stone. “Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.”
The Repeal Amendment is short and to the point, something indicative of a possibly good change. It does not have the infamous words that have haunted so many amendments since reconstruction, “Congress shall have power to enforce this article by appropriate legislation.” The text simply states;
“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”
Knowing the growing pressure in many states to revive support for the 10th Amendment it is easy to understand why this is gaining such a positive response in Tea Party circles. Since being submitted Tuesday by Rep. Rob Bishop (R-UT) it has gained a lot of steam early. Rep. Bishop, founder of the 10th Amendment Task Force, called it a weapon in states’ quivers and alluded to this being one of several proposals to come. ”I actually hope to have a series of statutes and amendments — several amendments and several statutes — that we can introduce this year,” Bishop said, “with the sole goal of not just cutting down the power of Washington to do things to people, but more importantly, is to empower states.”
Is it easier to empower states by creating a series of new changes to our form of government or to use the same passion, energy, and effort to repeal errors of past changes? Also, are we to believe Rep. Bishop, Cantor (R-VA), and other D.C. representatives when they say this amendment will check federal government while restoring power to the states and people as it was meant to be? Of course we are to believe this is the easiest and best way to restore order, after all these are Tea Party backed, grassroots politicians proposing these changes so we know it is OK to trust in their proposals, don’t we? As a matter of fact, we should be rallying at capital steps across the country with big signs and cheering grand cheers to our new defenders and their saving amendment…repeal~repeal~amending federal power~repeal~repeal~such an easy deal!
Excuse me if I sound a wee bit skeptical Rep. Bishop and Rep. Cantor. First, the repeal process, outlined in the amendment, does not consider one of the fundamental aspects of federalism our founders developed. It was a part of Article VI, Clause 2 and it was a necessary part for both vertical separations of powers and sound checks to work. Yes, I am referring to the often court abused, media misconstrued area commonly known as the Supremacy Clause. Before you jump up and down and scream this Wood fellow has no clue what he’s typing about I fully understand only federal legislation made “in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.” The key word, Pursuance, was so important it was capitalized (our framers equivalent to bold type today).
Second, the amendment requires 33 (34 if you round up) states to be opposed to an item. What will this do for the important state mechanism the 10th Amendment does help illuminate, the Doctrine of Interposition? With the common threat of nullification of unconstitutional laws, would this be all but negated by the repeal amendment? If the 2/3 rule is not met then all states would be stuck with an unconstitutional law. Historically, far less than 2/3 of states have adopted the same Resolutions of Interposition and yet the federal, or general, government has backed down in challenges to their wayward laws. True 10th Amendment stances, based on sound nullification doctrine, works even today. Medical marijuana is just one of many growing examples of this.
What about laws passed by the general government that are constitutional, based on the original meaning? If enough states can rise against constitutional laws they too can be overturned, whether passed ‘in Pursuance thereof’ or not. This amendment truly alters the vertical checks and balance provided under the original meaning. In theory this amendment could weaken the federal level to a point of it being little more than it was under the Articles of Confederation. Although the federal government is far too large and intrusive today we will not find ourselves ‘securing the Blessings of Liberty to ourselves and our Posterity’ by turning the dial that far back.
Is it really time to completely alter our form of government or, again, would it be better if all these efforts were focused on restoring original meaning before completely changing it? Would Madison embrace such a departure? I don’t believe he would yet I am quite confident he would fully support the restoration of today’s 10th Amendment efforts and the Doctrine of Interposition. My confidence stems from his words, written in Jan. 1800 as part of his Report on the Virginia Resolutions in which he was defending his resolution rejected by other states. He wrote no truer words, words Rep. Bishop and Rep. Cantor should still be holding true to if they are as ardent defenders of the sovereignty of the states and our 10th Amendment as they seem to be.
The states, then, being the parties to the constitutional compact, and in their sovereign capacity, it follows of necessity that there can be no tribunal, above their authority, to decide, in the last resort, whether the compact made by them be violated; and consequently, that, as the parties to it, they must themselves decide, in the last resort, such questions as may be of sufficient magnitude to require their interposition.
Ken Ivory further reminds us of the words of Thomas Jefferson, written in 1791 to Archibald Stuart;
It is important to strengthen the State governments, and as this cannot be done by change in the Federal Constitution (for the preservation of that is all we need contend for), it must be done by States themselves, erecting such barriers at the constitutional line as cannot be surmounted either by themselves or by the General Government. The only barrier in their power is a wise government. A weak one will lose ground in every contest.