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More Constitutional Amendment Suggestions

Randy Barnett has a different variation on a federalism amendment. Section two is the one I find most interesting:

Section 2. Whenever two thirds of the Governors of the several States concur, they may rescind any law or regulation of the United States, or they may propose amendments to this Constitution, which 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.

I actually would suggest something even a little more radical. To allow the state legislatures of just 1/5th of the several states, which would be ten states currently, to propose repealing federal laws by putting the matter to a referendum vote. So if ten states vote to, say, repeal ObamaCare, it would go on the ballot to be voted on by the people. It would look something like this:

Section 2. Whenever one fifth of the legislatures of the several states shall concur, they may propose to rescind a law the United States, which shall be rescinded for all intents and purposes, whenever the people in two thirds of the states shall approve through direct vote, to be held on the election day for members of the United States Congress, according to the law of each state in which the ballot measure shall be held.

I think the barrier to amending the constitution needs to be pretty high, but I’m not too concerned about the people being able to rescind federal laws, especially if they are unpopular. What do you think?

14 Responses to “More Constitutional Amendment Suggestions”

  1. Monty says:

    It seems like the devil is in the details, I’m wondering what you think about how it would actually work. How fine a scalpel would you allow the states when they move to rescind? Could they cut strategic language in the law, thereby warping its effect, or changing it to apply in a different way, but equally restrictive? Could they rescind only an exception in the law, thereby making the law broader? Could the states rescind one law that forms a part of a framework, while leaving the others intact (in a case where federal funding is designed to ‘encourage’ state action, could they rescind the requirement for action, but leave the funding)? If a state could rescind particular peices of legislation, what happens if that legislation change previous law, and implemented new law, would we go back to the old, or would there be left a void?

  2. Sebastian says:

    That’s a good point. Really good point actually. I would say it would probably be best to keep it to nullification of an entire Act of Congress. Of course, then how do you deal with the laws passed since which modify that act?

  3. Nathaniel says:

    Giving governors that ability is an intriguing idea. Right now, many of them seem sort of like figureheads that angry voters can pin problems on without much real power. (Ahnold, anyone?)

  4. AZ Mike says:

    Why not just repeal the 17th Amendment and allow states to appoint and recall Senators at will — so the states can get federal representation again and such legislation doesn’t pass in the first place?

  5. Jujube says:

    Giving governors that power seems unfair to me. Alaska with a population of 600,000 would have an equal voice to California which has a population of 37,000,000. And the District of Columbia would have no voice at all.

  6. Fiftycal says:

    You could have 10 states, Kalifornistan, Neuvo York, etc., call for a vote for a guaranteed annual income. No. We havn’t needed a Constitutional Convention in more than 200 years. The problem is Congress has usurped too much power. Let’s deal with that. I suggest;

    * Forbid the U.S. government from participating in health care other than for Veterans
    * A requirement that the budget be balanced starting with 2012
    * Term limits
    * line item veto for the President
    * Putting a “germaness” clause so bills other than the budget could not address more than one subject
    and no federal judge can serve more than 10 years in their lifetime.

  7. AZ Mike says:

    Fiftycal,

    If government involvement in health care is so bad, then why give military members free health care through the VA? Why not push them onto private market health care? And where in the Constitution does it say that the government has to provide health care, (as well as pensions, loans, and education) to them but not anyone else (because it would be ‘socialism’?)

  8. Andrew says:

    The stronger 2A gets, the more I worry about simplifying the amendment process.

  9. Matthew Carberry says:

    The Constitution doesn’t say they have to, the Constitution simply says they may.

    If your problem with the health care bill, or gun control, or education ad nauseum is that they don’t fall under Congress’ enumerated powers; then to be consistent you can’t complain about Veteran’s, or even Indian (feathers not dots) healthcare and other affairs.

    From the start Congress was given explicit and fairly broad Constitutional authority to manage those two areas. Hell, the interstate highway system could fall under either “post roads” or as a rational relation to national defense via the capability to move troops as well.

    Some things, like it or not, are in fact reasonably the business of Congress per the Constitution.

  10. abprosper says:

    The 1/5 suggestion puts a lot of power into the hands of a few people. I can’t blame anyone for wanting self governance but “majority rules moderated by the Constitution” is how the nation was set up for a good reason. Also ever time say the we get a decent laws passed (and this does happen) the blue states will make us fight the same stupid fights over and over and over — its like pouring gas on the culture war. No thanks.

    I do like what .50 cal says with two caveats, you will have a welfare state sooner than later. The economy and technology will push us in that direction. Its inevitable, Trying to get rid of medicare would provoke a backlash that would push the US past Venezuela on the Socialism meter.

    However there is a way around it. A national income for each person who has been a US citizen for 18 years and having the government buy private insurance for everybody is far better than a nanny state .

    Right kinda Libertarian Charles Murray explains it pretty well here – just Google “Murray + Plan”

    This option allows the redistribution everyone will force down your throat anyway without the odious programs and the people who want to run our lives for us.

  11. Brad says:

    I think a power of repeal via a referendum vote is an excellent idea. Doesn’t Switzerland do something like this already?

  12. Homer says:

    Jujube, the District of Columbia isn’tsupposed to have a vote – the Constitution defines it as a “federal district” for a reason.

    None of the 550,000 D.C residents is being held at gunpoint and forced to live in D.C.; if representation in Congress is high enough on someone’s priority list they may live in any of the 50 states that has representation, and two of them – Virginia and Maryland – have contiguous borders with D.C., making it possible to live in a state with representation and work in D.C.

    As for Sebastian’s 10 state proposal, my vote is “no.” Keep the barrier high; where it is now – which is 34 states – seems about right. If we did go down that road, however, language stipulating that such recalls affect “approved measures in their entirety, and whatever legislation may affect the content of those measures” would do it. Of course, “….measures in their entirety…” means anything “Christmas-treed” into a bill would also be null and void, which may not be a bad idea. It would tend to keep bills as single issue legislation rather than what we have now, which is junk added to get it passed.

  13. Skippy says:

    Be careful about giving too much power to the people. Our system was very specifically set up to reduce the power the people had, because the people are fickle. You can’t have the direction of the nation changing frequently (we have that now, sort of, and it’s not a good thing- giving more power to the people would make this worse). The pure Democracies of Greece were unstable because the people had too much authority. That’s one step above mob rule. I believe it was Jefferson who said “Democracy is 2 wolves and a lamb voting on what to have for dinner.”

    I like the idea of repeal by referendum, but the barrier to use it needs to be pretty high. It has to be either a supermajority of the states to propose, or a supermajority of the people to enact… it has to be something very clearly against the will of a large majority of the people. Sometimes important things are going to be unpopular (for example, truly balancing the budget will mean cutting popular programs AND raising taxes).

    Also, another commenter brought up line item veto. Bad idea. The executive branch has already taken too much power from the legislative. Let’s not make it worse. The veto is already extremely powerful, and can be used to remove specific items from a bill- Bush did it on Iraq war funding bills that included language on troop deadlines. He wanted the funding, but vetoed the whole thing to remove that language- and it worked, he got what he wanted.

  14. Oilcrash says:

    I would imagine that a simple repeal of the 17th amendment might do the trick. I may be guilty of a flawed thought process but in my mind once the Senate became elected officials instead of state appointees, the states themselves lost a voice.

    Since we have both our Representatives and our Senators beholden the people, the will of the state is lost, as both houses must (pardon the vulgar phrase) pander to the mob.

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