So with that back ground, my interest was peaked when I read the Wall Street Journal Opinion piece by William Howell and Randy Barnett in which they revealed:
In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional "Repeal Amendment." The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:
"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
This article left me curious and a bit confused with a ton of questions. Is this going to be an actual constitutional amendment? Would there be a need for a convention? And Wouldn’t it be easier to repeal the 17th amendment and just be done with it?
Now, I have not seen the actual legislation, not sure that it is available yet, so maybe that will answer some of these question. But apparently I am not the only one with questions. Last Sunday, there was an Op-Ed in the Richmond Times Dispatch by Delegate Bob Marshall title “Why Meddle with the Constitution?” which he specifically talks about the repeal amendment.
In it he states:
I agree with the goal. Washington's power needs to be curbed. That is why I introduced HB10, the Health Care Freedom Act, which passed the Assembly this year to give Virginia legal standing to challenge Obamacare's individual insurance mandate.
The Repeal Amendment, which surfaced in The Wall Street Journal, and a similar version unveiled at the Tea Party convention both speak of repealing federal "law," not simply statutes or treaties. Article VI of our U.S. Constitution states: "This Constitution and the laws of the United States . . . and all Treaties shall be the supreme Law of the Land." Our Constitution, ordinary statutes, and treaties are all defined as "law" according to our Constitution.
Repeal Amendment advocates want the power to "repeal any provision of law" now on the books or passed in the future. If this amendment is passed by Congress and ratified by the states, then two-thirds of the states could repeal treaties, parts or all of our Constitution, military appropriations bills, Social Security, declarations of war, civil rights laws, and more.
In addition, no provision answers: Who keeps count of the states' repeal resolutions? For how long would a repeal action of a state be valid? Could a state vote to repeal a federal law one year and undo it the next? Which action counts? Could a "repeal resolution" be hidden in a multi-thousand-page bill (just as $130 million in new fees and taxes were hidden in Virginia's 2010 budget at the last minute without separate recorded votes)? Could state legislatures repeal a federal law without a recorded vote so the public would not know how legislators voted?
Roughly 11,000 constitutional amendments have been proposed to Congress since 1789. Only 33 were returned to the states for ratification. Of those, 27 passed. The first 10 amendments (our Bill of Rights) curbed congressional powers. Only one amendment after that attempted to permanently deny Congress "the power to abolish or interfere, within any State, with the domestic institutions thereof," (i.e., slavery).
What has not been made clear, except to a select few, is that Repeal Amendment leaders are also calling for a Constitutional Convention to propose their amendment. This "surprise" component was not disclosed at the Tea Party Convention.
So after reading his opinion on this, I am inclined to agree with Del. Marshall. As complicated as the bills are coming out of Washington, it is going to be very difficult to determine what needs to be “repealed” and then to garner support for 2/3’s of the states seems virtually impossible, which is one of the main reasons the 17th amendment has not been repealed. So a good idea in theory, but this just may not be practical.