The Repeal Amendment
This is part 3 of a series of discussions designed to point out the fallacies behind some modern Amendment ideas. As the drive towards a Constitutional Convention heats up, it is a good idea to examine the many Amendment proposals that are being discussed. The Repeal Amendment is being offered in response to legislation which is both wildly unpopular and places hardship upon the states. ObamaCare was a driving force behind this and Real ID plays no small part.
The Repeal Amendment 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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.
Although the Repeal Amendment seems like a healthy attempt to wrest usurped power from the federal government and return it to the sovereign states it is flawed in that it serves to undermine the proper role of the federal government. It would actually reintroduce some of the weaknesses that were discovered in the original Articles of Confederation.
Article 1 section 8 of the Constitution contains a list of enumerated powers that the states established within the federal system. These powers are rightly exercised at the federal level. Unfortunately, the Repeal Amendment makes no provision to safeguard those powers and so it introduces a line of separation of powers which will move with the whim of the states.
What is needed is for the States to stand up and enforce the Constitution as it was written. They must make their case when the general government extends its legislative power beyond the clearly defined enumerated powers in the Constitution. Nullification is the best remedy when the federal courts sanction usurpation of power by the executive and legislative branches. Nullification is the concept that the states refuse to enforce a federal law within their jurisdiction.
A future blog will cover the concept of Nullification also known as interposition and the arguments for and against the supremacy of the states. It should be noted that these problems have been greatly exacerbated by the 17th Amendment. A repeal of that amendment would also serve to restore the federal system as originally intended. It too shall be covered in a future blog.