A "Repeal Amendment"?

A couple of months ago, Randy Barnett at Cato proposed a new amendment to the Constitution that would give the states the power to repeal acts of Congress. It’s certainly an intriguing notion, if for no other reason than to note the hysterical reaction to it. Dana Milbank, Dahlia Lithwick, and Jeff Sesol manage to ignore the fact that the same document has been amended a number of times (seventeen since its initial adoption, most recently in 1992) to accuse conservatives of hypocrisy in proposing another change. Glenn Reynolds disposed with this notion with brevity earlier in the week, noting that the amendment process is actually part of the Constitution, and a lot more legitimate than muttering about “living documents,” emanations, and penumbras. There is no need for such logic-defying rewriting of the document to absorb issues like abortion and campaign finance restrictions when (a) the document’s own brevity speaks clearly enough on the limit of federal powers, and (b) the amendment process is available to those who wish to change or add to the Constitution. All it will take is two-thirds of Congress and three-quarters of the states to pass and ratify it...


The problem of federal overreach is real, but this looks like a poor solution to it. Those who want to see government restrained by the states would do better to repeal the 17th Amendment. Instead of requiring popular votes for Senators, go back to the original purpose of the Senate and let the states choose how to pick their Senators instead. Some might keep the popular vote in place, but those states concerned about federal encroachment on state sovereignty might return to having appointments made by the state legislatures, or governors confirmed by the legislatures. That would make the state itself the constituent of each Senator, and they could overrule the populist inclinations of the House by thwarting encroaching legislation.


That, too, has its drawbacks. Senators would be much less accountable to voters, having won their position not by popular ballot but through the favor of a governor or legislature. Party discipline would evaporate, which has its good points as well; Senators would not be accountable to a party, but to the interests of their state governments. Factions would form on the basis of regional politics and ideology rather than party, and the upper chamber would be much less susceptible to popular movements. Consider that in this past election, a Tea Party would have captured as many seats in the House as it did this year, but the results in the Senate would be much different. One would never see a Rand Paul, and possibly not a Marco Rubio, either, and Russ Feingold would probably still have his seat. Ron Johnson, a political outsider, would never have even been considered in Wisconsin for that position.


Still, that would be the most efficient way in which to restore the check on federal power that the founders envisioned when they created the bicameral legislature. It won’t take a cumbersome process that produces long-term instability to get it, either. And for the sudden love of the original document discovered by Milbank, Lithwick, & Co, it will remove one of those pesky changes to the Constitution that they suddenly find so distasteful.

Ed, I totaly agree with you that repealing the 17th Amendment is a much better idea than a Repeal Amendment. I disagree that "One would never see a Rand Paul, and possibly not a Marco Rubio, either, and Russ Feingold would probably still have his seat." There were plenty of honorable statesmen in the Senate prior to the 17th Amendment. If anything, repealing the 17th Amendment would put more Rand Paul's and Marco Rubio's in the Senate. And it would allow them to do their actual job instead of being beholden to a mostly left-wing media that will villify them and distort their words and actions.

Repealing the 17th Amendment would severely impede the media corporations' ability to enact an agenda. That would, in turn, reduce the incentive to corrupt the media with an agenda.

The Problems With Barnett's Bill

Barnett's Bill has ten clauses, and none of them involve repealing the Seventeenth Amendment.

1. Repealing the income tax: This is the first one, and it is the one people are most likely to support.

2. Limiting the necessary and proper clause: It's a good idea to limit it, and Barnett's proposal deals with some of the technical language the Supreme Court has created in order to twist the clause into its current meaning. But without dealing with the Court's "power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution", the real problem is not addressed. This would have been the place to deal with Jefferson's critiques.

3. Unfunded mandates: Unfunded mandates give states more freedom than "funded" mandates. It's really very simple to see why. Since the money always comes from the same place, a "funded" mandate is merely a requirement that the money be raised in a particular way while an unfunded mandate gives the state the flexibility to raise the money in any way the people see fit. Don't let the words used to label these things deceive you into thinking they're something they're not.

4. Limiting the treaty power: Barnett's proposal again deals with some of the technical issues without addressing the real problem. Most of theses limitations were addressed by the original structure of the Constitution, which was distorted by the Seventeenth Amendment. For example, the original Constitution would have allowed states to protect their own sovereignty because the Senate, which ratified treaties and appointments, including judicial appointments, belonged to the states. Limitations of power must be dealt with structurally. Power isn't limited by merely writing the words "only good laws can be passed". The written word doesn't protect anything, and can actually be (mis)interpreted by a court to mean anything. The best protections are structural.

5. Unlimited money in politics: Constitutions are really good at establishing a framework for making decisions but not so good at actually making those decisions. The Constitution's protection of speech and property did not stop the government from limiting those freedoms before, and, without better structural safeguards, merely saying that the government is limited will not make it so. Many of the principles Barnett is expounding are good, but his proposals don't address the real problems.

6. The power of the states to limit federal power: unless I'm missing something, this is actually really stupid. Since three-fourths of the states can amend the Constitution anyways, this doesn't seem to do anything.

7. Term limits: The politicians aren't the problem. This country needs better voters. Until people start voting better, there can be no solution, political or otherwise.

8. Balanced budget: unless you're reading closely, you'll miss the line-item veto Barnett grants the Executive. The Executive branch is way too powerful already, and granting a line-item veto is a really bad idea. I'm actually in favor of removing the Presidential veto altogether. The veto was Hamilton's idea, with disastrous results.

9. The expansion of the judiciary: This is a no-good, really-bad, horrible idea. The people's rights are protected by the legislature,not the judiciary. When the people believe the judiciary protects their rights, they stop caring about them and start voting themselves largess from the public treasury instead of voting to protect their rights. The judiciary cannot protect individual rights, but it can sure pretend to do so. Don't buy it.

10. No judicial activism: since most of these amendments put the judiciary in charge of interpreting them, it's a bit like putting the fox in charge of protecting the chicken coop. Who watches the watchmen?