Does Amending the Constitution Dishonor the Founding Fathers?

The Washington Post’s Dana Milbank is deeply troubled by libertarian legal scholar Randy Barnett’s proposed “Repeal Amendment,” which if adopted would add the following amendment to the Constitution:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

Milbank is nervous because Barnett’s plan has found support among Republican politicians including Virginia House Speaker William Howell and incoming House Majority Leader Eric Cantor (R-Va.). So in response he claims that amending the Constitution is a “strange” way to show “reverence for the Founding Fathers,” though of course those same Founders drafted and ratified Article 5 of the Constitution, which says, “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose Amendments to this Constitution,” and then goes on to spell out precisely how those amendments may become the law of the land. Nothing strange there.

Besides, the whole point of the Repeal Amendment, as Barnett explained in The Wall Street Journal, is in keeping with the text and purpose of our founding documents:

The Repeal Amendment would help restore the ability of states to protect the powers "reserved to the states" noted in the 10th Amendment. And it would provide citizens another political avenue to protect the "rights ... retained by the people" to which the Ninth Amendment refers. In short, the amendment provides a new political check on the threat to American liberties posed by a runaway federal government. And checking abuses of power is what the written Constitution is all about.

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  • ||

    I don't see how this is somehow dishonoring our Founding Fathers. Of course, I also don't understand why we don't just repeal the 17th Amendment to restore the state's influence in passing legislation rather than passing ANOTHER amendment to redistribute power.

  • T||

    It's government, dood. Why go back to root causes and fix the original problem when you can pile another rule on top and have more unintended consequences? That way, we'll have exciting new problems later on we haven't foreseen and we'll need more rules to address those! It's a perpetual employment program for lawyers and legislators.

    I kid, but only just.

  • ||

    In the government's defense, this strategy seems to be doing wonders for our health care system.

  • ||

    Do I have to choose? Repeal the 17th AND pass this amendment.

    If a state swings one way or the other, it can go against the senator the previous legislature elected.

    I love the smell of gridlock in the morning. It smells like... liberty.

  • Billy Shakespeare||

    I love the smell of gridlock in the morning. It smells like... liberty.

    Nice.

  • ||

    I can't see 2/3 of the states signing on to this. They are too stuck on the federal teat to risk antagonizing DC.

    As for "Dishonoring the Founding Fathers", I would submit that refusing to amend the constitution would dishonor them. They knew that they could not be perfect or speak for all times and therefore made provision for others to make changes as required.

  • Tree Fizzifs of a Person||

    Word

  • Pope Jimbo||

    How long will it take before the DOT puts out a memo saying that any state that ratifies this amendment will no longer get Federal Hiway funds.

    Worked great for raising the drinking age to 21 and lower BAC to .08.

  • ||

    Yeah. Receive money from the devil and the devil owns you. States are too reliant on fed money and will jump when the feds bark to keep it.

  • ||

    Amending the Constitution only fucks with Stone-Tablet reactionaries like Scalia and Thomas who think the Constitution was "hatched from Gawd - fully formed and perfect - in his Catholic pedophile glo-ry! (praise be to Allah/Jesus)" while they despise modernity and sup from their imaginary chalice.

  • ||

    You are an idiot.

  • ||

    Of course I said nothing that conservatives don't routinely say except I chose my own words for effect.

    SoCon Bullshit 101 here---

    1- The Constitution is "divinely inspired"... (its funny already)

    2- from 'Judeo-Christian' folklore... (oh yeah - please be specific!)

    3- from "natural riaghtes!" (oh yeah? The shit is getting deep now! please list all these "natural" rights).

    4- And us Southrens git to bail out whenever we disagree! (Fuck you Rick Perry, how did that work out in 1861?)...

    Keep it up. Lets break the Republic. I know that is what you want.

  • Rock Action ||

    I hear your nails, baby, they're on the blackboard. People are taking you seriously now.

  • mike c.||

    "natural" rights: being secure in ones life, liberty and property.

  • ||

    I guess we are wating for nature to release an offical defintion of secure, because our government has no idea what it means.

  • ||

    Forgive me, Father, for I have fed the troll.

    1) If you want to lampoon conservatives, why don't you move your flatulence to a conservative forum?
    2) I'm quite fond of the idea of breaking up the republic, but I'd want to know which piece you were going to end up in before I signed on.

  • ||

    Because this is NOT a conservative forum - you fucking idiot. Its the duty here to ridicule the statists (on both sides). I have been here a long time and assiduously acquired many step-ladders like yourself incapable of real liberation.

    And I am not welcome on a conservative forum - they don't take Hitchens-type rationalists.

    Now suck my cock.

  • John C. Randolph||

    What's wrong, shrek? Did the donkey kick you out of the house? Is that why you're here begging for sexual favors?

    -jcr

  • Jeffersonian||

    Its the duty here to ridicule the statists (on both sides).

    When have you ever done that, shriek? 99% of your posts are Obama apple-polishing.

  • Barely Suppressed Rage||

    Is an Obama's apple or his knob that shriek is polishing?

  • Mr. FIFY||

    Both sides, eh?

    Well, let's see you ridicule the left once in a while, shrike. Otherwise, you're just your usual sparkling self.

  • Woodrow||

    Um, Thomas and Scalia aren't against amending the Constitution.

  • ||

    I like when people view Thomas and Scalia as the same, because it's an easy cue to stop listening to them.

  • ||

    One of them has a legal opinion.

    The other one has his tongue so far up #1's ass to thus prevent any speech or contrary opinion.

  • bobchild||

    Man.

    It must be fun to only argue with figments of your imagination.

    Bet it makes being right a lot easier.

  • ||

    And shriek once again shows himself to be unfamiliar with, say, Gonzales v. Raich.

    Because he's an ignorant bigot, as always.

  • ||

    OK (without looking it up) they once split their opinion.... Big Deal.

    Maybe Long Dong Silver is not kosher in the Big Funny Hat Crowd.

    I still do not like theocrats. In fact they represent the worst in humanity.

    You can defend the bastards all you want to though.

  • Jeffersonian||

    Just keep a-hammerin' that nail, shriek.

  • Barely Suppressed Rage||

    Gotta love the "without looking it up". IOW, "talking totally out of my gaping maw of an ass, without knowing the slightest shred of fact of what I'm talking about, I'm going to scream my unfounded opinion anyhow."

    Have you ever actually read ANY SCOTUS opinion? If you took a little time to actually read some of them, you'd find that Scalia and Thomas actually are quite different. Yeah, sure, they lean to what you would perceive as the "right," and yes they both favor a type of originalism in interpreting the Constitution. But Scalia is much more of a textualist, whereas Thomas relies more on the "original understanding" school.

    And they are not quite the same - although I guess they might seem the same to someone with shallow and undeveloped critical thinking abilities.

    And Thomas is closer to a libertarian than Scalia is.

  • cynical||

    I dunno, I think Scalia can be his own man, sometimes.

  • Botox Porcupine||

    True. At least Thomas has the balls to stand up for federalism. Scalia is a federalist when it comes to guns or sexual assault (Lopez and Morrison), but loves federal power when drugs are involved (Raich).

  • cynical||

    I don't think conservatives are opposed to amending the constitution; they are often opposed to deeming it amended by torturing logic and language.

  • ||

    Except when that tortured reading fits their goals. Then they're all in favor of it.

  • ||

    Kind of odd that a bunch of "Stone-Tablet reactionaries" support this effort, then, shriek. You might want to check who's supporting the effort, then entirely recalibrate your position, considering how you usually base all your political stances on what you think that so-cons hate.

  • ||

    You're the most well-informed conservative here, Thacker. You really are.

    But its football time for me now (8:50est) good luck.

    I acknowledge your message out of respect.

  • ||

    Dude, respected by Shriek. It's a sad day.

  • shorter shrike||

    JIM CROW!

  • ||

    Amending the Constitution for the purpose of checking federal power sounds pretty much exactly what the Founders envisioned.

  • MNG||

    Er, wasn't the impetus behind the Constitution to make a more powerful federal government than they had?

  • ||

    Yes. The failure of the weak central government established by the Articles of Confederation led the Founders to conclude that the states must be subordinated in a new federal system. Adoption of this amendment would radically alter the original intent of the Constitution.

  • ||

    The original intent of the Constitution also had senators elected by state legislatures.

  • WhereYou'reWrong||

    So then may we assume you have no objection to restoring the original intent of the Founders by repealing the 17th Amendment?

  • cynical||

    So, as long as the feds have more power than under the Articles of Confederation, we're ok, right?

  • Barely Suppressed Rage||

    Ben Wolf, you're only partly correct.

    It is not so simple a matter to say that the Founders felt the states must be "subordinated" to the federal government. In fact, as a general statement, that is patently false.

    Federalism is not simply a matter of the federal government have supremacy over everything the states do. It is a shared sovereignty, in which the federal government has supreme sovereign power over a specific, defined set of issues. The states retained sovereignty over everything else - issues where the federal government simply has no power.

  • ||

    That is exactly what I said although a bit more succinct.

  • Trespassers W||

    This is exactly what you said although a bit more succinct:

    *the sound of flatus*

  • ||

    WTF is your little inane blip for?

    I don't see the Constitution as GAWD's DOCUMENT like the paleo runt-fuck conservatives do (Scalia, Thomas, Beck) but rather a social contract drawn from the Father of Liberalism (John Locke) who meant for it to grow with time as society matures....

    Oh fuck it - you rednecks won't get it anyway....

  • Anonymous Coward||

    ather a social contract drawn from the Father of Liberalism (John Locke)

    I think Thomas Hobbes is more your man than John Locke.

  • Trespassers W||

    Anyone ever try a search and replace of "time cube" with "Christ-fag"? It's illuminating.

  • ||

    I have toned it down quite a lot! Its my kinder gentler side nowadays.

    (Seriously, is "Christ-fag" searchable?)

  • Mr. FIFY||

    "you rednecks"

    More liberal elitism from shrike.

    In other news... rocks are HARD, man.

  • NY, LA, Chicago||

    Thanks but no thanks.

  • Anonymous Coward||

    the right asserted by states to ignore federal laws they found objectionable - and the "states' rights" argument that was used to justify slavery and segregation.

    Like the Fugitive Slave Law?

    As we all know, the federal law does no wrong is only a gentle fount of liberty and justice.

    Excuse me while I go puke.

  • ||

    Any federal law, so unpopular as to pull 2/3rds of our fine state legislators away from their whoring, drinking and stealing from the taxpayers, must be pretty fucking injurious to the country.

    Also, isn't Milbank one of those window lickers who's always saying "Washington is broken, blah, blah"?

  • ||

    Everybody knows the clear intent of the Founders was to establish a permanent, all-powerful political overclass empowered to regulate every aspect of the lives of the citizenry. Duh!

  • ||

    If George Washington were alive he'd be turning over in his grave!

  • T||

    And clawing at the lid of his coffin.

  • wayne||

    +1793

  • Xenocles||

    Glenn got it right along with plenty others here.

    Actually, what's really disrespectful is the process of de facto pseudo-amendment process the feds (specifically the courts) have adopted in its place.

  • wayne||

    How about an amendment that says, "Congress may not regulate commerce conducted solely within any particular state no matter how such intra-state commerce affects commerce as a whole."

  • cynical||

    I like free trade, but I'd rather strike the fucker entirely. History has proved that only strict separation of economy and state is acceptable for freedom.

  • Brett L||

    "No state shall levy a tax, fee, or fine on any product solely because it does not originate in said state. Any dispute between several states over matters of commerce or taxation shall be settled by Federal authority."

  • Almanian||

    "The gummint - local, state, and federales - will STAY the FUCK OUT of everyone's bidness, so that commerce may flourish. Cain't do nothin' that inhibits conducting bidness across state lines or nothin' like that. Any dispute will be settled by playing The Dozens, and we get T Dog on our team. Word."

    Something like that, maybe?

  • luda||

    Stay da fuck up out my business, my biznass!

  • Barely Suppressed Rage||

    How about an amendment that says, "Congress may not regulate commerce conducted solely within any particular state no matter how such intra-state commerce affects commerce as a whole."

    If the government stuck to the plain reading and original understanding of the Constitution, that would be totally unnecessary and in fact redundant.

    Alexander Hamilton argued against the Bill of Rights on the basis that they denied Congress power it didn't have anyway. I.e., there was no need to say Congress could not infringe free speech or take away private arms, because where in the Constitution did it have the power to do those things anyhow? Hamilton was about the most ardent federalist you could find, but even he argued that the federal government's powers were limited and enumerated.

    Of course, he then went on to disingenuously interpret that same Constitution as giving the federal government powers not expressly enumerated, so he was pretty much just another fucking politician.

  • ||

    Allow me to give us a glimpse of a discussion 10 years after this gets approved:

    In the past 10 years, it has only been invoked twice, so why did we bother?

  • ||

    In the past 10 years, it has only been invoked twice, so why did we bother?

    Cuz it eliminated the EPA and the FCC

  • ||

    The Repeal Amendment would help restore the ability of states to protect the powers "reserved to the states" noted in the 10th Amendment.

    It would also potentially interfere with the ability of the federal government to exercise powers delegated to it in the Constitution, as noted by the 10th amendment.

    There really is no substitute for getting rid of the batshit-insane interpretation of the Commerce Clause currently subscribed to by the courts. Other than perhaps passing an amendment consisting of a more explicit version of Article I Section 8 (the section where the powers of the fed govt are enumerated).

    The statists would probably find a way around that too.

  • ||

    I also like the Sunset Amendment idea, where all federal laws automatically become null and void five years after passage or five years after the Amendment is ratified, whichever is later.

  • cynical||

    I like it, but I think they should allow a core legal document of no more than 10000 words to be exempted. This would be the semi-permanent stuff that all Americans ought to know (the stuff where ignorance of the law truly is no excuse). There are a few laws that are actually useful, and it would be a shame for the sort of incompetent buffoons currently running things to accidentally let them expire. Although I guess it's one way to shoot for anarchy.

  • Xenocles||

    I once heard of an adjustment to that idea that required successively larger majorities to re-pass a law at the end of each lifespan (capped at 80% or so).

  • robc||

    Ive suggested that any felony (Im willing to go lower, but lets start there) requires a 95% vote.

    If 95% of the legislature doesnt think you should go to prison for Act XXX, then really, should it be illegal?

    Murder, rape, robbery, etc, etc...no problem getting a 95% vote.

  • Xenocles||

    There would have to be a provision to separate each offense into a different bill. I can easily imagine people grafting the must-pass murder prohibition onto their helmet mandate or something.

  • ||

    Ah, but what if you change one word in the law? Does that remove the increasing majority requirement?

  • Xenocles||

    Another good point. I fear there is no elegant way to prevent that sort of chicanery.

  • ||

    It would also potentially interfere with the ability of the federal government to exercise powers delegated to it in the Constitution, as noted by the 10th amendment.

    Your reference to the 10th confuses me, but plenty of amendments (notably, the BoR) interfere with the ability of the federal government to exercise powers delegated to it in the Constitution. That's kind of the point.

  • ||

    No doubt, but Barnett's presentation of this amendment as somehow fulfilling the purpose of the 10th -- you know, the thing I quoted -- is highly misleading. Delegated federal powers are not restricted in any way by the 10th amendment.

  • IceTrey||

    Every single state has called for an Article 5 convention, some multiple times, yet Congress refuses unconstitutionally to call one.

  • Jason||

    Cite?

  • IceTrey||

    Too lazy to use Google?

  • ||

    Two thirds of the legislatures can call for a convention to make an amendment*, so I don't see how Congress can block this.

    (*Or, throw the whole thing out and enthrone our new arseniphagic overlords. Either way, it's all good.)

  • IceTrey||

    While the states ask for the convention it has called by the Congress. In other words Congress has to vote for it.

  • In Time Of War||

    I'm thrilled to see someone suggesting we amend the Constitution, rather than just waving the magical "regulation" wand.
    I mean, if the FDA can ban Four Loko, why can't they just ban alcohol completely? Don't need no steenkin' amendment for that...

  • Almanian||

    FDA: "It didn't work when we prohibited alcohol through the amendment process...BUT I BET REGULATION WOULD WORK! THAT'S DIFFERENT! LET'S TRY IT!"

    I think our the U.S.government really is that stupid...

  • Bill C||

    Typical. The left-wing sets up a straw man and pummels it: "My goodness, using the CONSTITUTIONAL amendment process provided in the CONSTITUTION is...not respecting the CONSTITUTION! What hypocrites!". Add this to other gems like "Since conservatives/small government types don't believe in big government why don't they avoid calling the police when they get robbed etc."

    As much as I hate Fox News sometimes I'm really glad they give the Left and their mouthpieces like Milbank a taste of their own medicine. In a less politicized world Milbank's "talents" would command the standing and salary befitting a lying teen gossip.

  • Almanian||

    Shorter Liberal Argument:

    LIBERTARIAN -----> SOMALIA!!!!!!11!

  • Almanian||

    MINARCHIST-----> SOMALIA!!!!!11!

  • Almanian||

    LESS GOVERNMENT -----> SOMALIA!!!!!11!

    etc.etc.etc...

  • ||

    I, for one, embrace our Somali overloards.

  • MJ||

    Liberal arguments against proposals they do not like are entirely utilitarian. They do not have to be logically consistant or even make much sense taken alone. They just have to have adequate emotional appeal.

  • Liberty||

    I believe one of our Founding Fathers mentioned that we can just as long as we have the "spirit" of liberty in mind.

  • RyanXXX||

    Eh, I'm sticking by old-fashioned nullification as the best answer to federal encroachment. I don't think a law that two-thirds of the state governments disapproved of would ever get passed anyway.

  • West Texas||

    In theory, I love the "Repeal the 17th!" argument that it would restore power to the states.

    But in reality, most states would just have direct elections, anyway, because most Americans have been brainwashed into thinking MOAR DUREHCT DEMOACRACY 4-EVER!!!!! And any politician who supported taking direct elections away from the people would be attacked mercilessly as being anti-suffrage.

    Something like this 2/3 amendment - in addition to repealing the 17th - makes sense in light of that.

  • JB||

    Dana Milbank is a retard.

    I'd bet he has never read the entire Constitution.

  • Prescient Ben Franklin||

    "A republic, madam - if you can keep it!"

  • Gilbert Martin||

    "So in response he claims that amending the Constitution is a “strange” way to show “reverence for the Founding Fathers,”

    I'd say Millbank is quite a few days late and quite a few dollars short on latching on to things that failed to show reverence for the Founding Fathers.

    Like all the absurd, expanionist interpretations of the interstate commmerce clause.

    And the entire New Deal, LBJ's Great Society, federal gun control laws, laws interering with freedom of speech, freedom of contract, freedom of association, private property rights, etc. etc. ect.

  • Timely Renewed||

    The problem with the amendment to allow two-thirds of the States to rescind a specific federal law or regulation is that it is retail when the problem is wholesale. We need to redress the underlying distortions of the Constitution which have allowed the federal government to usurp the States' original constitutional powers, not nitpick at separate individual usurpations.

    What we really need is the ability to amend the Constitution to restore the original constitutional structure which limited the federal government. However, this is difficult to achieve when Congress holds a monopoly on initiating constitutional amendments.

    A better solution than the proposed "repeal amendment" is an "amendment amendment" which gives the States the ability to initiate constitutional amendments without the cumbersome convention presently required by Article V. This will allow grassroots constitutionalists to effectively devote their resources to initiating amendments carefully drafted to achieve the restoration of the original constitutional structure, instead of expending effort on particular laws or regulations.

    See www.timelyrenewed.com for more specifics on this proposal.

GET REASON MAGAZINE

Get Reason's print or digital edition before it’s posted online

  • Progressive Puritans: From e-cigs to sex classifieds, the once transgressive left wants to criminalize fun.
  • Port Authoritarians: Chris Christie’s Bridgegate scandal
  • The Menace of Secret Government: Obama’s proposed intelligence reforms don’t safeguard civil liberties

SUBSCRIBE

advertisement