It’s A Darn Good Constitution; Let’s Not Screw It Up!

According to the article in this morning’s Richmond Times-Dispatch, the legislative agenda of tea party and other conservative and libertarian groups includes support of the so-called “repeal amendment.” This is an amendment to the United States Constitution that would allow a super-majority of state legislatures to cancel legislation enacted by the Congress and signed by the President. The repeal amendment is also high on the legislative agenda of the Commonwealth’s Attorney General, Ken Cuccinelli, who is neither a “teaman” nor a libertarian—just a plain old-fashioned right wing Republican. Now, I am sure that neither the tea party nor Mr. Cuccinelli would propose something that is bad for our republic. However, just to be sure, let us look at this thing they have created.

The repeal amendment is contained in H.J. Res. No. 542. This resolution, whose patrons include nearly every Republican in the House of Delegates but no Democrats, begins with its whereas clauses, which assert that the Congress of the United States has exceeded the powers granted to it by the Constitution and that the Constitution needs to be amended to restore the proper balance between the powers of the Congress and the states, and other good stuff like that. Then comes the active language:

RESOLVED by the House of Delegates, the Senate concurring, That the Commonwealth of Virginia hereby applies to the Congress of the United States to call an amendment convention pursuant to Article V of the United States Constitution for the purpose of proposing a constitutional amendment that permits the repeal of any federal law or regulation by vote of two-thirds of the state legislatures. The Virginia Delegation to such convention, when called, shall propose the following amendment:
"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

The resolution then, if enacted, will be an application to the Congress to call an amendment convention under Article V of the U.S. Constitution. The purpose of the convention will be to propose an amendment to the Constitution that would allow the repeal of any federal law or resolution by vote of 2/3 of the state legislatures. The resolution would also instruct the Virginia Delegation to the amendment convention to introduce the specific language of the amendment contained in the resolution.

If it ain’t broke: The United States Constitution grew out of a series of compromises reached by the convention that met in Philadelphia in 1787. The constitution as agreed upon and proposed to the states for ratification contained a whole series of provisions designed to prevent the newly created Federal Government from becoming the tyrannical governments that we had ousted during the American Revolution. First, the Constitution diluted power by creating a government with three branches, each of which had some authority to check usurpation of powers by the others. Under this system the legislative, executive and judicial functions of government are exercised by separate branches. Further, the constitution created a legislative branch—the Congress—that is composed of two bodies; one, the Senate, in which each state has equal representation, and one, the House of Representative, in which representation is based on the respective populations of the states.

The constitution is designed to make it difficult for legislation to become law. Bills must be passed in identical language by the Senate and by the House of Representatives. Then, the bill must be submitted to the President of the United States for his concurrence. If the president refuses to agree to the legislation, it can only become law if enacted by a super majority in both the Senate and the United States.

The constitution contains two additional features (one written, one implied) that further check the power of the Federal Government. First, we have regular elections: every two years for members of the House of Representatives, every four years for the president and every six years for members of the Senate (under Amendment XVII). If the people in each state feel that any elected federal official is exceeding his or her authority they are free to vote him out at the next election. Second, is the doctrine of judicial review that permits the Supreme Court or any subsidiary courts created by the Congress to declare actions by the Executive or Legislative Branches to be unconstitutional and render them void. (This doctrine is not explicitly stated in Article III of the constitution, which creates the Judicial Branch, but is implicit in the jurisdiction that is granted the federal courts under section 2 of Article III. It has been recognized since the Supreme Court decided Marbury v. Madison in 1803.)

In my opinion, there already exist ample means for restricting the actions of the Federal Government. There is no need for the amendment proposed by H.J Res. No. 542.

The repeal amendment would alter the federal arrangement set up at Philadelphia: The 1787 Philadelphia convention created a new United States government separate from the states. Under the Articles of Confederation, adopted in 1781 but in operation before the final ratification, there was little that could be called a Federal government. The confederation was rather an agreement by thirteen states to act jointly in certain areas of common interest. Under the Articles of Confederation there was no real executive and no federal judiciary. The Congress of the Confederation, although it could make decisions in the area of war and peace, diplomacy and disposition of public lands, had no power to enforce its decisions. More important, the Congress of the Confederation had no power to levy taxes; it had to rely on contributions from the states to operate. An entity that has no authority to levy taxes is not really a government.

The Federal Government proposed at Philadelphia was a government operating separately from the states in its area of authority. Once the constitution was ratified, the Federal Government needed no additional actions of the states or their legislatures to operate. It had the authority to legislate, to raise revenue, to execute its laws and to adjudicate disputes arising out of its operations.

The proposed amendment will change this separation of sovereignty by allowing the states to intervene in the federal legislative process. No longer will an act passed by the Congress and signed by the President be a full Public Law. Rather, it will always be subject to later repeal by the state legislatures. This authority to repeal, residing in 34 state legislatures, will weaken the Federal Government and provide nearly a perpetual period of uncertainty with respect to actions taken by the Federal Government. No longer will individuals or corporations be able to rely on the permanence of federal law in making decisions. All of their planning will have be two part—one while the law is in effect and another if the law is annulled by the 34 legislatures. Foreign governments could never rely on treaties or agreements reached with the United States. Thirty four state legislatures could always cancel them.
This alteration of the sovereignty of the United States Government will affect all actions taken, not only those which H.J. Res. No. 542 asserts are usurpations by the Federal Government. Even legislation or other action that is clearly assigned to the Federal Government under the constitution would be subject to repeal under the proposed amendment.

The amendment would allow the legislatures of 34 other states to repeal federal actions that the citizens of Virginia support. Should the proposed repeal amendment become part of the constitution, the Commonwealth would be subjecting itself to other states cancelling legislation that our citizens approve of. Even if the General Assembly considers and specifically refuses to repeal federal legislation, we would be subject to the actions of other states, many of them far smaller than Virginia. If the government of the Commonwealth lobbies long and hard for, and our two Senators and 11 Representatives vote for, legislation that is unquestioningly within the purview of the Federal Government and benefits Virginia, we would then be required to lobby other state legislatures not to repeal it.

The repeal procedure would add a huge burden to our already overloaded General Assembly. The Virginia Constitution deliberately limits the amount of time that the General Assembly may stay in session. Because of these limits the 40 senators and 100 delegates in the General Assembly work almost non-stop from December through the spring on legislation that the members introduce or the Governor, Attorney General, or Lieutenant Governor propose. How will the General Assembly possibly find the time to also consider repeals of federal law or regulation (especially during the short session every two years)? With the added burden of this additional work, will we be able to maintain the General Assembly as a legislature of part-time lawmakers?

The danger: The Republican-sponsored resolution calls for the use of one of the methods of constitutional amendment set forth in Article V of the constitution—the calling of a convention to propose amendments and then ratification by the states. This method of amending the constitution has never been used in the more than two hundred twenty years since the constitution was ratified. All of the amendments to the constitution have been made by the alternate method—proposal by the Congress and then ratification by the states. The convention method has not been used because it is unclear in Article V of the constitution whether the Congress can restrict the actions of the convention to any particular amendment. The language of Article V merely says: “…on the Application of the Legislatures of two thirds of the States, [the Congress] shall call a Convention for proposing Amendments …” Article V has no language providing that the Congress can restrict the convention to only considering one amendment.

The Republican sponsors of H.J. Res. No. 542 are aware of this danger. They have the following language in the resolution:

“RESOLVED FURTHER, That this resolution is revoked and withdrawn, nullified, and superseded to the same effect as if it had never been passed, and retroactive to the date of passage, if it is used for the purpose of calling a convention or used in support of conducting a convention to amend the Constitution of the United States for any purpose other than consideration of the amendment proposed in this resolution . . .”

Attorneys (even Republican attorneys) are fallible. It is not clear what would happen if a convention called pursuant to H.J. Res. No. 542 and identically worded resolutions from sixty six other states decided to propose further amendments after already proposing the repeal amendment. Perhaps the further resolution of H.J. Res. No. 542 is adequate to prevent this happening. Perhaps not. Remember that our only previous convention was called for the sole purpose of amending the Articles of Confederation and ended up proposing an entirely new system of government. The delegates to that convention knew full well they were exceeding their instructions. That is why all of their proceedings were made secret. Can we trust a 21st Century amendment constitution to limit itself to proposing only one amendment?

In sum, it is clear to this maven that for the General Assembly to enact H.J. Res. No. 542 would be a serious mistake. I understand that during the last election cycle the Republicans made many promises to the electorate, including the repeal amendment. Despite this promise, I would hope that all members of the General Assembly, whether Republican, Democratic or Independent, would act in the best interests of the citizens of the Commonwealth and vote against H.J. Res. No. 542.