From the New York Times:
The same people driving the lawsuits that seek to dismantle the Obama administration’s health care overhaul have set their sights on an even bigger target: a constitutional amendment that would allow a vote of the states to overturn any act of Congress.
Under the proposed “repeal amendment,” any federal law or regulation could be repealed if the legislatures of two-thirds of the states voted to do so.
The idea has been propelled by the wave of Republican victories in the midterm elections. First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.
Any proposal to amend the Constitution should be treated to harsh criticism as a matter of course. Amendments seek to change the fundamental “rules of the game” and as such it is a no bad thing if they are put through the crucible. This is particularly true of proposals arising in “the heat of the moment.” There is little doubt the widespread unhappiness over the recent health care law was the precipitating event for the appeal of this particular proposal, and there is also little doubt that emotional reactions are often a poor replacement for thought.
That being said, however, it does not follow that should we reject or prejudge any proposal merely because of its timing.
So what are we to make of the proposed change? Obviously, the amendment seeks a way in which the states could undo the work of Congress, albeit only if 34 states were in agreement on the matter. Constitutionally speaking, what purpose could such a change serve? Well, it could be argued the Federal government of today is too far removed and insulated from the check on its power the individual states were supposed to provide. Part of the reason for this, of course, is the result of the aftermath of the Civil War and the death of “state’s rights” and “nullification.” But some of it can also be traced to the institution of the direct election of U.S. Senators which cut off a once important avenue of national influence for state legislatures, and the passage of the 16th amendment which greatly expanded the scope of Federal power at the expense of the power of the states.
There is considerable merit to such a view. Despite the talk of “devolving power to the states” which has been a constant in Republican circles since the Reagan era, what has actually taken place has been very limited and more of an exercise in the Federal government voluntarily restraining itself rather than a restoration of power to the states. As such, there is the danger the Federal government, left largely free to ignore the states, will structure legislation to enhance its own power at the expense of popular sovereignty.
Such an argument would rest upon accepting the idea that state legislatures, as presently constituted, are more representative than the U.S. Congress. There seems little doubt this is the case. From the standpoint of democratic theory, the fact U.S. Congressional districts have an average of almost 700,000 people in them while the median state legislative district has only 40,000 clearly points to state legislature being more representative. Furthermore, the dominance of the national political party system has resulted in member of Congress who are more wedded to the support (and money) of national interests then they were in the past. Granted, this drift has been a component of our politics for well over 100 years, but that fact does not require us to merely acquiesce to it in the future, or prohibit the people from setting limits on it for the future.
So there would seem to be some theoretical basis for the proposal of such an amendment. The question turns now to be one of how effective the proposal would be in counteracting the ills it sees. This is where critics can play a vital role, assuming they do their job well. From the Times article:
Sanford V. Levinson, a professor of constitutional law at the University of Texas, called the proposal “a really terrible idea” because it would give the same weight to small states as it would to large ones, allowing those with a relatively small proportion of the national population to have outsize influence.
Given the amendment would require 34 states to all sign on to overturn a Federal law, the least amount of population covered by those 34 states would amount to about 100 million out of the 300 million. However, Federal laws can be passed by states congressional delegations which come from states which amount to as few as 54 million in population in the Senate and 118 million in the House. Really this isn’t all that different.
“There’s not the slightest chance it would get through Congress” or be ratified by the states, he said. “You can bet the ranch that there are enough state legislators in the large states who will not consider it a good idea to reinforce the power of small parochial rural states in which most Americans do not live.”
This, mostly, isn’t a critique on the merits of the content of the amendment, as much as a practical assessment of its chances for passage. However, much of that assessment is based upon two assumptions which seem dubious at best. The first is the assumption of “small state power” which I debunked above. The second assumption is that state legislatures would feel themselves to be “on the same page” with their congressional colleagues in Washington. It seems likely state legislators might be more interested in increasing their own power rather than protecting the power in Washington, particularly as they hold so little power vis-a-vis the Federal government already.
Levinson, however, does eventually hit upon a substantive objection:
Even if it were approved, it would be extremely unlikely to have any practical effect, Professor Levinson said. “Any bill that can get through the byzantine, gridlocked process of being approved by two houses and the presidential signature is wildly unlikely to be opposed by two-thirds of the states,” he said.
This, it seems to me, might actually prove to be the case. If one were interested in doing a cost/benefit analysis on the matter we might find the proposition to be a losing one. It may prove to be so rare a circumstance it isn’t worth the rigmarole. However, the Constitution already contains measures which happen rarely if ever. Impeachment and overrides of Presidential vetoes come immediately to mind, as well as the constitutional power given Congress to determine the line of Presidential succession should both the President and Vice President be unable to serve. The infrequency of the potential use of the provision alone isn’t really enough to make the claim it is unnecessary. However, the prima facie case for needing the amendment, in a practical “we could actually work this way” sense, still hasn’t been met in my mind.
That being said, they do have a theoretical argument and that is something.
Cross posted at The Iconic Midwest.