November 23, 2014

Amending the Constitution? A B.F.D.

With Constitution Day just passed (September 17th), hopefully we’ve all increased our awareness about the governing document for our nation’s political processes.  Written over two hundred years ago, the US Constitution is now the oldest written constitution.  And yet, it is still important, if not essential, to our nation’s governance.

Included among its clauses is guidance on how to amend it. The Founding Fathers knew that the document they had created was a result of compromise, and that over the years our nation would grow and change.  As a result, they knew that succeeding generations would need the ability to amend the constitution without scrapping the document and starting all over.  The means to do that is found in Article V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

The Constitution has been amended several times, with the most notable amendments occurring directly after the Constitution’s ratification (the “Bill of Rights“) and after the Civil War.

Politics is often the driving force behind the amendments.  In recent years there has been increased political polarization across the country, especially seen in the rise of the Tea Party movement in response to the enormous growth of government during the George W. Bush and Barack Obama administrations. Government spending has reached historic highs, and without the tax revenues to support it, the federal government has taken on levels of debt that have caused great alarm to many Americans worried about the effect debt will have on the economy, on freedom, and on our country.

Among the responses that have been proposed–the efforts, really to offer institutional checks on the growth of the power of the federal government–are two amendments to the Constitution. The first is called the “Repeal Amendment” and the second is known as the “Madison Amendment” (not the first to be known by this name).

The Repeal Amendment

Proposed initially to the Virginia legislature, the “Repeal Amendment” purposes to restore to states a balance of the power that was held by state legislatures until the passage of the 17th Amendment.

Map of USA with Virginia highlighted
Image via Wikipedia

Previous to passage of the 17th Amendment, Senators were chosen by state legislatures.  If a senator voted for a bill in Congress that the state did not like, the legislature had the ability to bring that

senator home.  It was a check on the ability of the federal government to pass laws that states did not like.

Not to be confused with the power of federal courts to “nullify” federal laws, Randy Barnett and William Howell describe the amendment in the Wall Street Journal.

Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president’s veto power.

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.

The specific language of the amendment states:

“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.”

In many respects, this is a very federalism based proposal. It allows states to exert their will relative to the federal government and act as a check to the federal government’s policies. As former Utah Supreme Court Justice Dallin H. Oaks has said, “A public policy or a proposed law that is unwise is not necessarily unconstitutional. Even if it is a stupid proposal, it is not necessarily unconstitutional.” This would allow public discourse to discuss the merits of a proposal without using the Constitution as a weapon.

It would also have an effect on the litigation against unpopular laws and the possibility of activist judges. It would move the debate over unpopular laws out of courts and into the democratically elected branches of government where public policy decisions ought to be decided.

The Madison Amendment

The “Madison Amendment” is far less dramatic than the “Repeal Amendment,” but in effect seeks to do the same thing: restore a balance to the tug between states and the federal government.  The”Madison Amendment” is drafted to state:

The Congress, on Application of the Legislatures of two thirds of the several  States, which all contain an identical Amendment, shall call a Convention solely to decide whether to propose that specific Amendment to the States, which, if proposed shall be valid to all intents and purposes as part of the Constitution when ratified pursuant to Article V.

Based on the premise that Congress will not check its own power, the “Madison Amendment” puts pressure on Congress to listen to state legislatures. Why should Congress be limited to only proposing amendments?  Why not allow the states do propose amendments, too?  That’s what this amendment proposes to do.

Interestingly, the proposal has bipartisan support and has been sponsored in the House by Rep.  Walt Minnick (D, ID), Rep. John Culberson (R, TX),Rep. Rob Bishop (R, UT), and Rep. Henry Cuellar (D, TX).

The difficulty?  Getting two-thirds of the states to agree on an identical amendment.

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The long and short of both of these, however, and what should be primary in anyones mind as they consider amendment of the Constitution is this: changing the Constitution is a big deal. It lies at the very heart of our republic and our society, and we should tread lightly as we consider changing it.