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Tentherism by new amendment?

An amendment to the U.S. Constitution that would give state governments the collective power to repeal federal laws is being circulated to state legislatures and has at least one legislative supporter in Minnesota. State Rep. Steve Drazkowski, Repub  of Mazeppa,  plans to introduce the amendment in the Minnesota House.

This new idea, known as The Repeal Amendment, would add an amendment to the federal charter stating:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

This idea is another appearance of what I have called Tentherism, which is a reference to the 10th Amendment. The 10th Amendment says that any powers not delegated by the Constitution to the federal government are reserved to the states and the people. Tentherism is shorthand for a larger body of righty beliefs about the predations of federal power since, well, almost forever, but especially in recent years.

Many state legislators, including Tom Emmer in his days as a state representative, have floated proposals that would essentially give states the power to nullify or block within their boundaries the application of federal laws if the state felt the feds had exceeded their enumerated powers. But those ideas appeared to be unconstitutional themselves, because they would conflict with the “supremacy clause” of the U.S. Constitution.

This new idea would solve that problem by amending the U.S. Constitution. In addition, because it would empower a supermajority of states to nullify a law or regulation on behalf of the whole country, it would not raise the prospect of chaos caused by some states embracing federals laws while other states rejected them.

Before taking the idea — or at least the prospect that it could become a constitutional reality — too seriously, here’s what it takes to amend the Constitution. The amendment has to be approved by two-thirds of both houses of Congress and then, usually within a seven-year period, it has to be ratified by three-fourths of the states. State ratification can be accomplished by a vote of both houses of the Legislature or — but this has been successfully done only once — the states can create special conventions to which delegates are elected for the purpose of deciding ratification of a proposed Constitutional amendment. There’s also a method for bypassing the Congress, in which two-thirds of the state legislatures petititon  Congress to call a national convention to propose amendments. (This method has never been used.)

Since support for these tentherist ideas have generally been strong only within the right wing of the Republican Party and Tea Party circles, this proposal would have to gain a lot of support across the middle of the political spectrum to become serious. But, as the New York Times noted when writing about the idea this morning:

“First promoted by Virginia lawmakers and Tea Party groups, it has the support of legislative leaders in 12 states. It also won the backing of the incoming House majority leader, Representative Eric Cantor, when it was introduced this month in Congress.”

Marianne Moran, executive director of the Repeal Amendment, told the Times that she had statements of support from legislative leaders in Minnesota, but the only Minnesota legislator who she knew about was Steve Drazkowski, a junior member who will be vice chair of the Civil Law Committee.

Drazkowski has tweeted that he hopes to sponsor the amendment in Minnesota and has published this statement:

 “The federal government continues to squash the sovereignty rights of the states as guaranteed by the 10th amendment to the U.S. Constitution unrelentingly and at an accelerating pace. From countless unaffordable federal mandates imposed upon Minnesota’s healthcare system, education programs, and even families, the overreach of Congress has gone unchecked. It’s time for the states to restore their Constitutionally-protected autonomy, and that’s why I am going to sponsor the Article V application for the Repeal Amendment.”

Update: Not long after this post went up, I heard back from Rep. Drazkowski. He clarified that he does not plan to wait to see whether Congress will refer a verson of the Repeal Amendment to the states. When he says in the statement quoted just above that he will sponsor an Article V application, he refers to the never-successfully-used provision of the Constitution I mentioned above under which the states can “apply” to Congress for the calling of a constitutional convention to propose amendments. Under that process, two-thirds of states must “apply” for such a convention and whatever amendments are proposed would still have to be ratified by three-fourths of the states in order to take effect.

Drazkowski hasn’t drafted a bill, nor talked much to legislative leaders, but has talked to a few Republican colleagues (no Dems yet, but he says he will) about the idea and they like it.

“You don’t have to look any further than the fact that half of our state health care budget is controlled by strings from federal government and that the Obamacare bill was passed in direct opposition to will of the people” to understand why this idea will be well-received, Dazkowski said.

In case the idea doesn’t catch on with DFLers, Drazkowski’s idea does have one advantage. It takes a simple majority of both houses to make an “application” for such an amendment, and it doesn’t require a gubernatorial signature so, theoretically at least, an application asking for a constitutional conbention to propose an amendment enabling states to collectively repeal federal laws could be passed with just Republican votes, since, as you may have heard, the Repubs will control both houses of the Legislature in 2011-12 for the first time ever.

Comments (13)

  1. Submitted by Craig Westover on 12/20/2010 - 02:19 pm.

    There are some practical application issues with the proposed amendment, but rather than nit-pick the amendment it is significant that the Constitution and recognition of constitutional issues is making a comeback. At the federal level the GOP is considering rules that would require all bills to state their constitutional authority to legislate the issue contained in the bill. As far as the state goes, here’s my proposal for a similar bill that would require state legislators to conform legislation to the Minnesota State Constitution.

  2. Submitted by Paul Brandon on 12/20/2010 - 02:28 pm.

    Back to the Articles of Confederation.
    Something about repeating the mistakes of the past?

  3. Submitted by Brian Simon on 12/20/2010 - 02:53 pm.

    The amendment is an interesting idea, and worthy of debate. In the short term, I don’t see an easy path to ratification, starting with getting a vote in the Senate.

  4. Submitted by Paul Brandon on 12/20/2010 - 02:53 pm.

    The Constitution is a short document.
    Limiting legislation to actions specifically authorized by the Constitution would eliminate the Federal government as we know it (yes, I know that some consider that to be a good thing).
    But it’s been tried — the Articles of Confederation. It didn’t work even in simpler times.
    And of course, the Constitution is open ended:
    “To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.”

  5. Submitted by Steve Sundberg on 12/20/2010 - 04:47 pm.

    I’m amused that some of the most vocal “Constitutionalists” are also the same people seeking to change the Constitution — if not the 10th Amendment, then the 4th or the 14th or even the 1st — to support their narrow world view.

  6. Submitted by Craig Westover on 12/20/2010 - 06:11 pm.

    Paul —

    The problem with the Articles of Confederation is that the document did not give the federal government authority to enforce those functions that a central government is chartered to do.

    The US constitution created a strong federal government with limited scope. The operative word is scope. The federal gov’t, per you quote, has the authority to tax and spend to carry out those functions specifically assigned to it. Congress has the authority to pass laws (it does not have the authority to delegate that power to the executive branch to make regulations)in support of its chartered responsibilities. The gov’t does not have authority to exceed its chartered authority to achieve some determined desirable end.

    It is the illegitimately expanded scope of government that liberty-loving people object to, not the national government per se.

  7. Submitted by Ray Schoch on 12/20/2010 - 06:28 pm.

    I’m with #5, though less amused. Beware the sanctimony of people in high places. As Paul has stated, we tried this concept early on in the nation’s history, and it didn’t work. That’s why we adopted the Constitution in the first place – as a replacement for the failed Aricles of Confederation.

    This is one more in an increasingly lengthy series of actions aimed at allowing the minority to subvert majority rule. Since they can’t persuade the general public honestly, the right wing will use subterfuge and deceit. It might even work. The same people who think Sarah Palin is qualified for some sort of national office despite all the evidence to the contrary will think this is a fine idea.

  8. Submitted by Peder DeFor on 12/21/2010 - 08:47 am.

    #5, Steve Sundberg, I hear comments like yours here and there and for the life of me I don’t understand the confusion. The Constitution can clearly be amended through a highly technical process and Constitutionalists seek to make changes only through that process. Maybe it would be better if they used the ‘sympathetic judge’ route but that isn’t obvious to me. To suggest that Constitutionalists should revere the document so much that they should never offer an amendment is sophistry at best.
    #7 Ray Schoch, can you explain how an amendment that requires two thirds of state legislatures can possibly be described as thwarting majority desires? And given that this would have to be done through an enormously public campaign how can it possibly be described as subterfuge?

  9. Submitted by Tim Walker on 12/21/2010 - 11:23 am.

    Eric wrote: “Tentherism is shorthand for a larger body of righty beliefs about the predations of federal power since, well, almost forever, but especially in recent years.”

    But there seems to be some words missing at the end of that sentence, which I’ve filled in here: “… but especially in recent years, when a black man moved into the White House.”

  10. Submitted by Eric Ferguson on 12/21/2010 - 02:04 pm.

    @Craig “It is the illegitimately expanded scope of government that liberty-loving people object to, not the national government per se.”

    Whereas anyone who disagrees with libertarians hates liberty. This is why most people don’t take libertarianism seriously, and they’re right not to.

  11. Submitted by Peder DeFor on 12/21/2010 - 03:25 pm.

    David, you may be right and I have the same issue with the amendment. But…what about the unfunded mandates that are out there? Virtually everyone agrees that an unfunded mandate is a bad thing yet there seems to be no mechanism to actually fix the durn things. Do state legislatures have different priorities than the Federal one? My guess is yes but I’m not sure of it.
    #9 Tim, Federalism and the balance of power with the states has been a subject of conversation on the Right (certainly the libertarian Right) for at least the last two decades.

  12. Submitted by Michael Zalar on 12/26/2010 - 03:54 am.

    Um, this all seems a really wierd and complicated means to repeal a law. If it’s really the will of the people to change something on the national level, won’t they just “vote the bums out”?
    Seems to be a lot easier, a lot cheaper, and a lot more reflective of what people want on a national level.

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