Prof. Reynolds notes the controversy surrounding the “Repeal Amendment” proposed by Randy Barnett and William J. Howell.

The idea is superficially attractive: If two-thirds of the State Legislatures vote to repeal a Federal Law, the Law is repealed. This would in some degree restore the balance of power between the States and the Federal Government.

Much of the criticism of the idea is uninformed to the point of stupidity. The Constitution was designed to be amended at need, and criticizing a proposed amendment on the ground that major changes can only be made by Supreme Court decision(s) tosses the original concepts of the Framers in the toilet. However, the fact that stupid people make stupid remarks about an idea doesn’t enshrine it as wonderful.

The Amendment, as proposed, is unlikely to do much damage — the very idea of getting 67 or 68 State Legislatures (depending on whether or not Nebraska is involved) to agree on anything makes herding cats look simple, so the likelihood of its being actually implemented is vanishingly small. It might be useful as symbolism, but symbolism, while important, is not enough.  If disenfranchisement of the States vis-a-vis the Federal Government were the real problem, restoring the Senate to its original status via repeal of Amendment XVII would achieve the same end with greater actual effect.

Since the basic problem is not State vs. Federal, the Repeal Amendment would do no real good. The problem that must be addressed is the Congress’s abandonment of its own responsibilities, and until we face that directly nothing positive will be accomplished. The Congress is, or should be, obliged to make hard choices. It has, by and large, punted on most of them, especially in the last century. Soldiers faced with difficult choices suggest sarcastically, “Kill ‘em all, God will know His own.” The Congressional equivalent is “The Hell with it, the Supreme Court will sort it out.” The Court, unwilling in its own turn to accept such responsibilty, has responded with deference — the doctrine that unless some egregious violation has occurred, the will of the Legislature, being responsive to the People, controls. It is the resulting Alphonse-and-Gaston act that has done the damage.

One of the worst and most egregious examples is Wickard vs. Filburn and successors, including the fairly recent Gonzales vs. Raich. Article I, Section 8 of the Constitution states, in part,

The Congress shall have Power … To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

The so-called “Interstate Commerce Clause”, only four words, was apparently intended by the Framers to prevent trade and import-export duty wars among the “several States”, a major feature of the breakdown of the preceding Articles of Confederation. Together with Article I, Section 10 (which prohibits, among other things, duties and excises imposed by the States without consent of Congress) the result is that the United States is, among other things, the very exemplar of a “Free Trade Zone”.

It could be argued that no use of the Interstate Commerce Clause has been responsible — the so-called “Coastwise Tariffs” of the early 19th Century contributed greatly to the tensions that led to the Civil War, and the Jones Act had the somewhat delayed effect of essentially eliminating American shipping from world trade — but the effect of Wickard and consequent decisions based on the Clause has been remarkably perverse. Their net effect is to declare, first, that all commerce affects interstate commerce, and can thus be regulated by Congress; and second, that few (if any) acts of any person are not “commerce”. Until and unless the noxious effects of Wickard and subsequent decisions are reversed or mitigated, Article I can be truncated to “The Congress shall have Power” with no qualifications, a total inversion of the intent of the Founders.

A second, but closely related, problem is delegation. As the Congress took more and more power onto itself as permitted by the Court, it needed more and more detailed knowledge of and insight into the “commerce” it was regulating — and detailed knowledge and insight were sadly lacking among the Members. It “solved” the problem by once again abandoning its responsibilities, in this case, by assigning the task of writing “implementing regulations” to the Executive and subordinates. Under this system, the Congress writes Laws giving broad authority to the Executive without specifying any of the details of how the authority is to be exerted; the responsible Agency of the Executive then fills in the details of “implementation”, while the Congress preserves a fig-leaf of responsibility by allowing itself to review such regulations and countermand them — a power which has never been used.

As a result, most of the “Laws” of the United States today are not Laws at all — they are mere “regulations”, written by unelected bureaucrats lacking any shred of accountability to the People. That doesn’t stop them from using the Sword of the State to impose condign penalties upon any person presuming to violate them! The Congress has not (yet) so abrogated its responsibilities as to hand down the death penalty to some faceless GS-14, but the century is yet young. Worse, custom and usage has placed “enabling regulations” beneath the notice of the Courts, who address only the Constitutionality of the original Statute — which, under Wickard, et. seq., is virtually unlimited.

The Congress then whiles away its time, meeting three days a week to hand out goodies to those who meet its approval, while the Executive Agencies place an ever-tightening noose around the civil, political, and economic affairs of Americans, sustained by the perverse positive feedback of more regulation resulting in need for more detailed knowledge requiring more bureaucrats writing more regulation. Until that cycle is broken, any attempt to return to saner (and more limited) Government is at best a Band-Aid® on a gaping wound.

At minimum, two Amendments are required: One to reverse or mitigate Wickard, and one to prevent Congress from delegating its authority. The “repeal Amendment” does neither, and thus is a useless waste of time and effort designed to avoid the duties of Government while providing a stage-set of “doing something”. My own proposals along that line can be found here as they evolved, under the categories “Modest Proposals” and “Probability Epsilon”, but my current thinking is as follows:

XXVIII: The power of the Congress to regulate commerce among the several States is hereby revoked, and neither the States nor the Congress shall regulate, tax, or otherwise burden commerce among or within the States.

XXIX: Every Rule, Regulation, Order, Decree, or other Ukase of Government, however named or styled, for violation of which any Person, if convicted, may suffer loss of Life, Liberty or Property in any degree whatever, is a Law; and every Law of the United States shall be placed before, and passed by, the Congress, and approved by the President, in the form and detail in which it applies to the People.

In both cases a second section is needed, specifying that existing Laws invalidated under that Article continue in force for a strictly limited period of time; I would suggest five years, or until repealed or replaced by the Congress, whichever comes first.

Suggestions and criticisms, especially of the specific wording(s), are welcome.