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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.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