Georgetown University’s Newspaper of Record since 1920

The Hoya

Georgetown University’s Newspaper of Record since 1920

The Hoya

Georgetown University’s Newspaper of Record since 1920

The Hoya

Professor Proposes Amendment

A Georgetown professor may be responsible for a major change in constitutional law.

Professor Randy Barnett, the Carmack Waterhouse Professor of Legal Theory at the Law Center, and Virginia House Speaker Bill Howell (R) called for a “Repeal Amendment” to the Constitution in a co-written op-ed published in the Wall Street Journal on Thursday.

The resolution would allow state legislatures to overturn congressional laws and regulations with a two-thirds majority vote from the states. If Congress wanted to re-enact a repealed law, it would be able to pass it again with a simple majority.

The amendment is an attempt to check federal power and return political authority to the states. Since the New Deal, Barnett said, federal courts have been increasingly lenient in their interpretations of constitutional congressional rights. As a result, Barnett said that the original balance of state and federal powers set forth in the Constitution has been compromised.

“A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse,” Barnett and Howell wrote in the proposal.

If the resolution becomes an amendment, states would be able to repeal older federal laws and regulations. According to Barnett and Howell, however, a two-thirds majority would still be difficult to muster up, and only the most unpopular laws would fall prey to the measure.

“Other than potentially going after health care reform,” Barnett said, “I think this will primarily be used to deter future laws.”

This is not the first amendment put forward by Barnett. Last year, he penned “A Bill of Federalism,” a 10-amendment proposition published on that suggested, among other changes, amendments repealing the federal income tax and setting term limits for congressional representatives. The new Repeal Amendment is actually a revised version of Article Six of the “Bill of Federalism.” Barnett said that Virginia state legislators approached him on the amendment and have worked with him on drafting revisions.

According to Article Five of the Constitution, Congress is obligated to call an amendment convention upon application by two-thirds of the states. While the resolution could be enacted this way, Barnett said it is less likely than congressional approval.

“In 200 years of history, whenever we got close to an amendment convention, Congress acted first,” Barnett said.

According to Barnett, amendments conventions are disconcerting to federal leaders, who worry that they could become “runaway conventions,” or conventions that result in multiple amendments. Article Five has never been used to enact an amendment because officials often rush to pass the resolution before the states can convene.

The Repeal Amendment could be introduced to the Virginia legislation once representatives begin their new session in January. If so, leaders will then begin working on recruiting enough states to apply for a convention. A member of the House of Representatives has also volunteered to introduce the resolution in Congress, though Barnett said he does not think that the resolution will be passed easily.

“I expect that [the amendment] will be bounced around and die out in Congress until we have enough states for a convention,” Barnett said.

Though the Repeal Amendment reflects Tea Party ideologies in its attempt to check federal power, Barnett still expects the amendment to face its greatest opposition from leaders on the far right of the political spectrum. Conservative organizations like The John Birch Society and the Eagle Forum especially are adverse to state amendment conventions.

In a statement to THE HOYA, Eagle Forum leader Colleen Holmes outlined the group’s opposition to Barnett and Howell’s plan.

“Eagle Forum opposes the concept of the constitutional convention under any circumstances or for any reason. We think that the Constitution is good enough to be able to solve any problem we have without having to call a new convention,” Holmes said.

As for the amendment, Holmes said that the Eagle Forum would need to research more before making a statement on its content.

Either way, the Repeal Amendment still has a considerable distance to travel. Nevertheless, Barnett said he believes that it has the support to proceed. In a group blog by law professors, he alerted colleagues to the potential amendment.

“You may well be hearing about this in the future,” he wrote. “If you do, remember you heard it here first.”

Leave a Comment
More to Discover

Comments (0)

All The Hoya Picks Reader Picks Sort: Newest

Your email address will not be published. Required fields are marked *