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A Few Thoughts on the Repeal Amendment

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The proposed amendment that would allow 2/3rds of the states to repeal federal legislation is getting a surprising amount of attention. A few points:

  • What would we be without wishful thinking:  “Randy E. Barnett, a law professor at Georgetown who helped draft the amendment, argued that it stood a better chance than others that have failed to win ratification. ‘This is something state legislatures have an interest in pursuing,’ he said, ‘because it helps them fend off federal encroachment and gives them a seat at the table when Congress is proposing what to do.'”   Care to make it interesting?   I actually very much doubt that anything remotely close to 3/4 of state legislatures would vote for this, but in any case the odds of getting super-super-majorities in both houses of Congress are so vanishingly small it’s barely worth considering.
  • I agree with their bottom line that the amendment is a terrible idea, but I don’t agree with Lithwick and Shesol that there’s anything un-conservative about proposing amendments.   Given how ornerous the requirements of Article V are, the process is actually hyper-Burkean.
  • The more publicity Barnett’s “Bill of Federalism” gets, the better, given its radicalism.   It would ban the federal income and estate tax, require a super-majority requirement for the regressive sales taxes that would be permitted, require balanced budgets, and return to the pre-20th century conception of the commerce clause, among other things.    Given how rare it would be for 2/3rds of the states to reject federal legislation, the Repeal Amendment is actually one of the least dangerous and unpopular provisions.
  • It would have no chance of passing no matter what, but Barnett was kind enough to give away the show by making the Bill of Federalism exclusively a laundry list of very right-wing policy goals.   It contains absolutely no attempt to appeal to liberals or left-libertarians: no mention of executive power in wartime or arbitrary detention, nothing about privacy or reproductive freedom.   And this despite the fact that it makes room for an amendment about judges citing foreign law, a conservative culture-war obsession with only a tangential relationship to the balance of power between the state and federal governments.    As with virtually all arguments about “federalism,” this is about substance, not procedure.
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