I awoke this morning expecting to find my new Washington Examiner op-ed, Who’s Afraid of the Repeal Amendment, in which I respond to criticisms of the proposal by Dana Milbank, Dahlia Lithwick & Jeff Shesol, and the New York Times — all in the mandatory 600 words. (I will be offering an expanded 3300 word defense in a forthcoming essay in the Tennessee Law Review, which I turned in yesterday.) What I did not expect was an Examiner editorial endorsing the proposal, which opens like this:
It might seem unlikely that a lone law professor could spark a national discussion about the kind of government Americans want in the 21st century, but that’s exactly what Georgetown Law School’s Randy E. Barnett hopes to do with his modest proposal known as the Repeal Amendment. You can read Barnett’s description of the plan and his response to critics of it like the New York Times on Page 25 of today’s edition of The Examiner. Under the plan, measures approved by Washington could be repealed if both houses in two-thirds of the state legislatures vote to do so. Incoming House Majority Leader Eric Cantor, R-Va., is among the proposal’s most significant supporters, which means it will receive serious attention during the 112th Congress convening this week. Whatever one’s view of the propriety of amending the U.S. Constitution in the manner proposed by Barnett — and for the record, we think the Repeal Amendment is a dandy way to restore the proper balance to our federal system — the professor’s idea could not be more appropriately timed. For the last decade, presidents and Congresses representing both major political parties have caused federal spending, regulation, and debt to explode as never before, with a result that the central government is in truly dire financial shape even as its power to control the most minute details of American daily life has never been greater. This fact is central to understanding why the vast majority of Americans — 64 percent, according to Rasmussen Reports’ Dec. 29 survey — think the country is headed in the wrong direction.
The editorial then goes on to praise the decision to read the Constitution aloud in the House during its opening session, a decision I also applaud precisely because of its symbolism. Symbols are important. (So are cymbals, but for reasons that are not relevant to this post.)
Here is a taste of my op-ed:
Arising from those who are distressed at the seemingly limitless power of the federal government — taking over everything from car companies, banks, student loans, and even the practice of medicine — the Repeal Amendment seems to have touched a nerve on the left.
First, the Washington Post’s Dana Milbank played the race card. “[T]here’s the unfortunate echo of nullification — the right asserted by states to ignore federal laws they found objectionable — and the ‘states’ rights’ argument that was used to justify slavery and segregation.”
But this is imaginary. Undermining civil rights is simply not on the agenda of anyone who favors this. Besides, to reach the two-thirds threshold to repeal any law would require the support of lots of blue states as well as red states, from different parts of the country.
Then Slate’s Dahlia Lithwick attempted to find a contradiction in supporters’ professed love for the Constitution. “For a party (whether of the Tea or Grand Old variety) that sees the Constitution as something so perfect as to have been divinely inspired, the idea that it needs to be altered fundamentally is beyond crediting. . . .”
But the Constitution includes the amendment process of Article V, which has already been used to alter the scheme by allowing an income tax and eliminating the power of state legislatures to select U.S. senators.
Add to this, judicial construction of the Constitution vastly expanding federal power in just the past 60 years. The Repeal Amendment is just restoring some semblance of the original state-federal balance.
The only objection of substance concerns the theoretical possibility that two-thirds of the least populous states, representing less than half of the nation’s population, could stymie legislation backed by a majority.
Although our Constitution is as much about protecting the minority from the tyranny of the majority as it is about majoritarian rule, this scenario is highly unlikely. If you remove just seven of the least populous blue states (Vermont, Delaware, Rhode Island, Hawaii, Massachusetts, New Mexico and Connecticut) and add Florida and Texas to reach two-thirds, you are well over one-half of the national population, and still with a mix of red and blue states from throughout the country.
Realistically, repeal will only happen when the 535 persons comprising Congress plus the president are grossly out of step with public opinion, or when Congress has messed with the internal operation of state governments in ways that are out of public view.
You can read the whole, not much longer, op-ed here. Could more be said? Of course. And it will! But for now, hopefully shorter is sweeter.
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