Politics

Would the Repeal Amendment Actually Limit the Size and Scope of Government?

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As I noted yesterday, libertarian legal scholar Randy Barnett's proposed Repeal Amendment to the U.S. Constitution—which would empower the states to overturn federal laws and regulations if the legislatures of two-thirds of the states agree—has been attracting support among Republican lawmakers. Barnett's co-blogger at the Volokh Conspiracy, George Mason law professor Ilya Somin, offers a qualified endorsement:

On balance, I think that the Repeal Amendment would be a small but genuine improvement over the status quo. Given my view that the present size of the federal government is far too large, I welcome efforts to cut it back. A very modest step in the right direction is still worth taking. If the Repeal Amendment could be enacted with little or no effort, I'm all for it. At the same time, I think supporters of limits on federal power should carefully consider whether this Amendment is the best possible investment of our limited political capital. Given the extreme difficulty of enacting any constitutional amendment and the relatively modest payoff to be expected from this one, it's possible that our resources might be better invested elsewhere. I'm not certain that's true. But the relevant opportunity costs need to be carefully weighed in advance.

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  1. When the patient is suffering from a gaping chest wound, a Band-Aid? may help but is possibly not the best use of the EMT’s time.

    1. But the relevant opportunity costs need to be carefully weighed in advance.

      We are headed for gridlock.

      There actually has to be an alternative opportunity for there to be an opportunity cost.

      Somin could argue that state legislators could be doing stuff….but $10 says it Somin as a law professor has done about zero on the state level politicking ever….in fact I doubt this guy has ever done any politicking.

      He wants to tell people what to do with their efforts but doesn’t actually ever do anything himself.

      1. Translation: “Cutting federal power down? Woah, there! Let’s not waste the golden opportunity to once again kick gays and immigrants around for a couple years.”

        Great. Now I’ve got “One In A Million” by Guns ‘n’ Roses stuck in my head…

      2. We are headed for gridlock? You say that like it’s a bad thing.

  2. It doesn’t matter if it would be effective or not because there is no chance in hell of it actually being passed. Even if it was passed, the Supremes would jump through all sorts of logical hoops to neutralize its effects whenever it was invoked. “We find the general welfare clause to supersede the Repeal Amendment in this case” or some such.

    1. Like term limits. They were in full-of-government-power-protecting shit on that day.

    2. “We find the general welfare clause to supersede the Repeal Amendment in this case” or some such.

      Amendments are like rules in the Koran. The most recent supersedes what came before. That’s what makes them amendments.

  3. For work by international Libertarians see http://www.Libertarian-International.org. Probably it should be extended to local jurisdictions as well.

  4. Given the extreme difficulty of enacting any constitutional amendment and the relatively modest payoff to be expected from this one, it’s possible that our resources might be better invested elsewhere.

    Indeed. It would be a better use of time to pass an amendment that said:

    The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

    Or perhaps one that said:

    The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

    Or maybe a simple:

    The Constitution means what it says.

    That last one, however, may suffer G?del incompleteness problems.

    1. In the immortal words of David Byrne – Stop making sense.

      What bother’s me is the pretense that permeates the entire society that the rule of law counts for anything. The rule of law only counts when it does not run counter to the significant interests of those who wield the power in this country. It is stupid and pointless to pretend otherwise. The rule of law, the Constitution, the balance of power and all the rest constitute the great charade we all live under. It amazes me that so many people still buy into the myth that is American – liberty and justice for all and so on. As George Carlin said – you have no rights. There is no right you have – not to property and not to your own life that the government can not and will not take from you if they have a particular interest in doing so.

      1. An enormous portion of the population thinks that morality and legality are one and the same, and a growing number of people would like to add personal taste to that list. (“I don’t like cigarettes/gay people/4Loko therefore it should be banned!”)

        1. Cockfighting, dogfighting, eating dogs, trapping, horse tripping, whaling, Jap dolphin “harvesting”, feral cat control, hunting,testing makeup on rabbits,”crush” porn, catching wild trout on treble hooks with spinning tackle,”catch, fillet, and fry” fishing, bear-baiting, hunting bears over bait…

          1. Man, SIV hates him so animals!

            Did a bear rape you or something at college?

            1. Probably depends. Are you referring to an ursine quadraped, or are you being coy?

              1. [insert STEVE SMITH quote]

      2. This is a primary motivation for me for my individualist anarchist position.

        There is no such thing as rule of law. There is only the time during which those who have enough power decide it is tolerable to follow the “law”, and when it becomes intolerable for them, they change it. It means nothing.

        An oft-stated whine about anarchy is that “warlords will take over”. They already have, morons. But they have the fiction of “law” to hide behind, and you buy it.

        At least in anarchy, there is no pretending that things are all legal and “right”. You know that the thugs in power are thugs, and not somehow legitimate through some fictitious legal process.

        1. As my friend, Bill, says, “If they wouldn’t make so many stupid laws, I wouldn’t break so many stupid laws.

          … Hobbit

          1. … BH

        2. “I never broke a law that I agreed with.”

        3. At least in anarchy, there is no pretending that things are all legal and “right”. You know that the thugs in power are thugs, and not somehow legitimate through some fictitious legal process.

          Case in point…

          In the arduous process of acquiring the land needed to extend Metrorail to Tysons Corner, the Virginia Department of Transportation won a small battle recently with a big foe, real estate magnate and Washington Nationals owner Theodore N. Lerner.

          The state, needing some of Lerner’s land in Tysons to build a Metro station and tracks there, took it by eminent domain and paid the developer about $24 million for the property two years ago. Construction is underway on the new station, slated for the corner of Chain Bridge Road and Tysons Boulevard.

          But that price – set just a few months before real estate values went into a freefall – almost immediately appeared to the cash-strapped state to be too high. The discrepancy led the transportation department and the hard-bargaining developer into a court battle over what the property was worth at the time it was taken, in November 2008.

          Earlier this month, a Fairfax County jury agreed with the state that it had overpaid for the property, saying that one Lerner parcel was worth only $19.3 million, less than the $22.8 million Lerner was originally paid. It ruled that a much smaller parcel was worth just $313,000, not the $1.5 million that was originally paid.

          Fairfax County Circuit Court Judge David S. Schell confirmed the decision Nov. 19, ordering that the Lerners pay the state $5.1 million for the excess and interest.

          1. By the way, you have to love the language used by the always-objective Washington Post

            …the arduous process of acquiring the land…

            …the Virginia Department of Transportation won a small battle recently with a big foe…

            …the cash-strapped state… …the hard-bargaining developer…

            “The public should know that the Department of Transportation is trying to protect their money as best they can…”

            Financially, the ruling is a small setback for the developer… …one of the country’s 400 wealthiest Americans.

            Oh, the poor state. Unable to tax, imprison, and execute people. Unable to take people’s land by force. Alms for the poor state. Alms for the poor state.

            1. Wow. Thanks for that story. I have to read about that.

        4. “You know that the thugs in power are thugs, and not somehow legitimate through some fictitious legal process.”

          You prefer barbarism over civilization because barbarism seems less hypocritical to you, no matter how much worse it is in practice? That is just insane.

          1. You’re saying there’s no barbarism in what we do now? That is just insane.

          2. No. He prefers statelessness over a state because both might at some time require violence to preclude a worse condition, but in the former it is understood to be an exception while in the latter it is the rule.

  5. This is tea-baggery! Only anarchists who want to reinstate Jim Crow would support this! Government can NEVER be smaller than it is right at this minute! Unemployment benefits create jobs!

    Also, racism.

    1. Speaking of such, here’s how Slate headlined their bleatings against this idea:

      Repealing Common Sense

      The conservative mission to destroy the Constitution in order to save it.

      Uh… yeah. Sure. Hey, is that Elvis sitting at the Burger King drive-through?

      1. More moronicity, courtesy of TPM:

        Repeal Amendment

        Cantor Urges ‘Open Mind’ On VA Legislature Plan To Blow Up The Constitution

        The stupid. It burns.

        1. Bonus stupid from the TDC comments:

          rjohnsen [Moderator] 3 days ago

          All of this because there’s a Black man in the White House.

          Good. Fucking. God.

          1. i agree with the poster. it’s all about Obama being black, just like it is with all you stupid Christ-fag capitalists.

            1. You can do better than that. Or, perhaps you can’t.

              1. You give Shrike WAYYYYY to much credit.

        2. That is exactly what will happen. You Tenth Amendment worshipers are too easily distracted by shiny objects.

  6. Why is everyone so cynical about this? Isn’t it better than nothing?

    1. “Doing nothing is not an option”

    2. I suppose they’re worried about “unintended” consequences.

    3. Politician’s Logic:

      Something must be done.
      This is ‘something.’
      Therefore, it must be done.

      Not all activity is good.

  7. I’d rather they repeal the 17th amendment, just to jab a finger in the eye of modern progs. A 50% repeal rate has to feel like failure.

  8. Does anyone else hate Ilya and Orin?

    “I think supporters of limits on federal power should carefully consider whether this Amendment is the best possible investment of our limited political capital.”

    You think people should think. Well thanks a lot, asshole.

    1. Why? If they can only pass 1 amendment, should this be it? Why not an amendment that strikes the commerce clause and explicitly reinforces the notion of enumerated powers.

      1. Orin and Ilya are always passive aggressive like this. It’s not his argument I have a problem with (I actually agree); it’s that he accuses supporters of not thinking instead of just making his case.

  9. Sunset Amendment would be much better at limiting the size and scope of government, or at the very least, keep the DC Swamp Creatures so busy that they wouldn’t have the time to look for new pies to stick their fingers in.

    All federal laws expire eight years after the date of being signed into law by the President or passed by a 2/3 majority of Congress, unless the law is renewed by a 2/3 majority of Congress.

    1. Eight years?

      I very much like your idea in general. But you give the legislators way too much free time.

      Unless we simultaneously put severe limits on the amount of time the legislature is allowed to meet each year. Which we should undoubtedly do in any case. Perhaps

      “The Legislature shall be permitted to meet for tea once very eight years, and not for a moment more at any other time.”

  10. The sunset amendment is a good start, as is the repeal amendment, but more practically you also have to destroy the ability of government agencies to make statutory decisions that restrict personal and economic liberty as well. I’d say a good start is requiring new standards (such as carbon emissions, etc) to be required to be passed by Congress instead of allowing an agency to determine what the standard will be.

    1. I’d say a good start is requiring new standards (such as carbon emissions, etc) to be required to be passed by Congress instead of allowing an agency to determine what the standard will be.

      Be careful what you wish for.

      1. Yeah, not sure that would work out so well.

  11. It seems stupid to me. You wouldn’t get 2/3 of states to strike down anything with this. What is one law that would actually get repealed in such a manner? HIPPA? Go ahead and dream…

    If we’re going to pass a Constitutional amendment, I can think of a few dozen that would be much more useful (though few or none of them would actually pass with the current or incoming Congress.)

  12. Looks good at first glance, but in practice, I suspect this would be yet another way residents of the scarcely populated rural/red states would be allowed to wield influence far out of proportion to their actual population. (The red/rural states already suck up more in federal taxes than they pay, the electoral system means their individual votes for president carry far more weight than a blue-state dweller’s individual vote, and now this proposal would effectively give the rural minority the ability to overthrow the will of the urban majority.

    1. No train for you!

      Come back…one year!

  13. Given my view that the present size of the federal government is far too large, I welcome efforts to cut it back.

    You believe that. I do to. But now you’re presuming that the states would use the 2/3 vote to veto government expansions. They could just as easily veto government cuts.

  14. The Sunset Amendment will fail. Congress will just pass a continuing resolution to keep all the expiring laws on the books, like they do now to spend money without a budget.

    Now, if you required all expiring laws to be read out loud in the House and the Senate before a vote could be held to keep them, you might have something.

    1. I’d vote for a requirement that all new bills be read out loud before they were passed.

  15. 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 http://www.timelyrenewed.com for more specifics on this proposal.

  16. e efforts to cut it back. A very modest step in the right direction is still worth taking. If t

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