Monday, April 21, 2008

My Suggestion for a Constititutional Amendment

I would suggest, for future Constitutions, or an amendment to our own, that there is provided a method for State Legislatures to repeal laws.  If 3/4 of the States vote against the law, it is repealed.

A lot of people talk about how amazingly smart the American Revolutionaries were when they drafted the Constitution.  We are taught Montesquieu's "separation of powers," with the uniquely American system of "checks and balances" between the three branches of the Federal Government, works to prevent too much power in any one set of hands.

There is one major flaw in this design, which appeared right away, and there is no sensible way to deal with the problem.  From the Kentucky and Viriginia Resolutions, to the Nullification Crisis in South Carolina, to the Civil War itself, States have (naturally) resisted actions of the Federal government.  Although the three branches might be able to check each other, there is no direct way for the States to resist Federal law.  None whatsoever.

The Constitution can be amended, but the process by which the States can do that is intractably flawed and has never been exercised.  If 2/3rds of State Legislatures want a Constitutional Convention, they can convene one and then Amendments could be proposed.  The first problem is that the State passing the resolution for Convention is not deciding what the Convention will be about.  We all know that the Second Constitutional Convention far outstripped its original mandate.  But more importantly, what if they just want one law changed, and not the whole Constitution?  Out of luck, Chuck! 

What the "checks and balances" clearly have not done is prevent the increase in Federal Power at the expense of the States.  That is not to say that Federal Officials, William Rhenquist for example, haven't sought to reduce Federal jurisdiction. 
The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

Look, I know this is, effectively, a State's Rights proposal.  That doesn't actually make me a Republican.  What it shows is that I can see problems (in this case, a very old problem) and present solutions.  So there!

No comments: