The Spectacle Blog

The Repeal Amendment

By on 10.12.10 | 9:59AM

A few days ago, Virginia Gov. Bob McDonnell came out in favor of a so-called "repeal amendment," which would amend the constitution to give two-thirds of states the power to rescind any act of Congress or federal regulation. The idea was originally proposed by Georgetown Law Professor Randy Barnett, and picked up by Tea Party activists. In my most recent magazine piece (now up on the main site), I spoke to him about the idea:

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."

Read more on the prospect of states calling an convention to amend the constitution under Article V of the U.S. Constitution here. Barnett also made the case in a recent Wall Street Journal op-ed, a piece he co-authored with William Howell, the Speaker of the Virginia House of Delegates.

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