Feeling their oats after this year’s election, the Tea Party crowd and like-minded compatriots have another idea for America.
They want to change the U.S. Constitution to give states the ability to check what they say is Washington’s seemingly endless grasping for power.
Under the so-called repeal amendment, states could undo any federal law or regulation they don’t like, as long as 34 state legislatures agree on the point.
It would mean that after federal lawmakers hold hearings, nail down support, maneuver around partisan gridlock, push the bill through committee, modify it to gain votes, muster a majority in the House, persuade a super-majority in the Senate and win a presidential signature to finally enact a law, states could repeal it.
No one has to go to court to claim the law is unconstitutional or even just plain bad.
And while this country isn’t strictly governed by majority rule anyway, the proposed change would further weaken the idea that Americans have roughly the same voice in lawmaking. Each state legislature would be equal in the eyes of the amendment, regardless of population.
This means that when it comes to repealing laws, Vermont would have the same say-so as New York, which has 31 times more people. Should the voice of one Wyoming resident cancel out a chorus of 66 Californians? The Senate’s that way, of course, but the House isn’t, and the amendment would further dilute big state influence.
To those of us who think this a bad idea, two thoughts give comfort. For starters, the push for the repeal amendment probably won’t go far.
Scores of constitutional amendments are proposed every Congress, more than 1,000 through the years.
And yet, in 219 years since Congress adopted the first 10 amendments in the Bill of Rights, only 17 more have made it all the way through. And two of those canceled each other out. First alcoholic beverages sales were banned. Then they were unbanned.
However much publicity the proposals attract, they tend to die quiet deaths still trying to make it the first step: approval of two-thirds of each house of Congress.
That will be even tougher in this case because members have an institutional, instinctual distaste for any proposal that would weaken their authority. If Congress were OK with sharing power with the states, no one would be pushing the repeal amendment in the first place.
But there is another way to move the amendment along besides going straight to Congress. It hasn’t been used since the adoption of the Constitution except as a threat. That’s how the repealers would use it, too.
The Constitution says that if two-thirds of the state legislatures vote to call a constitutional convention, Congress must do it. Convention delegates would then decide whether to send the proposed amendment on for ratification.
So feared is the idea of a constitutional convention that none have been called since 1787, when delegates tossed out the Articles of Confederation and replaced them with the Constitution.
The worry since then has been that a convention called for a single purpose could take up all kinds of mischief.
Ah, but the fear of a constitutional convention gives the pro-repealers a weapon. If they get close to winning enough state support to call a convention, Congress might just act first to avoid that and cast enough votes to move the amendment to the second step: ratification.
If amendment backers can get that far, they’d need to pick up a few more states to win ratification by the required three- fourths, or 38.
Americans have a visceral reaction against monkeying with the Constitution. Its framers made amending the document difficult, as well it should be. But its backers say this one is different.
“The fact that the amendment aligns with the interests of state lawmakers gives it a somewhat better chance than your average amendment,” Randy Barnett, the Georgetown University law professor who wrote the proposed revision, said yesterday in a telephone interview.
OK, so let’s pretend that the thing finally gets ratified and becomes the 28th Amendment. Will the foundations of government shake?
Probably not. That’s the second comforting thought.
Congress would have to pass a law so widely despised that both houses of 34 state legislatures would agree to repeal it.
“Once you have the kind of support necessary to legislate at the national level, it’s hard to believe that there’d be some huge national consensus in the other direction that just hadn’t been revealed by the national political process,” says Richard Pildes, a constitutional law professor at New York University.
Not even the national health-care reform law has drawn that kind of opposition. Only 21 states have sued to stop it, a number that would probably drop if governors and attorneys general had needed their legislatures to approve of the litigation.
A more likely use of the repeal would be to undo little- noticed items that hurt the states and are “‘tucked into complex, omnibus bills,” Barnett said.
“Arming the states with this veto power does put them at the table before Congress acts, and then allows them to repeal abuses of power” after the fact, he said.
They can repeal, but they can’t make it stick. The amendment also states the obvious: Congress can then re-enact a repealed law by majority vote.
So, what’s the point?
The point is to state yet another way that there are folks out there who believe Washington has gone too far.
This we already knew.
(Ann Woolner is a Bloomberg News columnist. The opinions expressed are her own.)
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