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Lawmakers to Introduce 'Repeal Amendment,' Presumably Add Asterisk to Supremacy Clause

In an effort to force the rewriting of junior high social studies books nationwide, The Daily Caller reported Saturday that Republican Congressmen Eric Cantor and Bob Bishop will be proposing to amend the Constitution to allow state legislatures to repeal any federal laws they don't care for.

Here's what the proposed amendment would look like:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

While Darren Hutchinson at The Dissenting Justice isn't impressed, there are some intellectual types who have come out in favor of such an amendment. For example, here are the thoughts of professor Randy Barnett and William J. Howell, Republican speaker of the Virginia House of Delegates, writing in the Wall Street Journal in September (as reprinted on the Cato Institute's website):

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

So, the best defense of this idea you can come up with is that it might result in a fun game of "dueling legislation?" Looking forward to the updated version of this little number.

Posted by Eric Lipman on November 22, 2010 at 12:17 PM | Permalink | Comments (7)


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