Amendment Fetish: The Repeal Amendment

While proclaiming undying fealty to the Constitution, the Tea Party movement and its allies are touting a hot new amendment to that otherwise perfect document, which goes by the oxymoronic name “the Repeal Amendment.”  This proposed amendment would allow two-thirds of the state legislatures to repeal any law or regulation of the federal government, so long as they “particularly describe the same provision and provisions of law or regulation to be repealed.”


us-constitution-01a.gifThis new constitutional provision, according to its sponsors, will restore the balance between state and federal governments. 

Ironically, the Repeal Amendment is the exact opposite of the constitutional provision that was most dear to James Madison during the Constitutional Convention in 1787.  Madison thought it essential that Congress have the power to veto state laws, because the state legislatures were so irresponsible and unworthy of trust.  He was not able to persuade the other delegates to adopt that congressional veto.  They thought that Congress should attend to the business of the nation and federal government and not spend their time on state law matters.  The same reasoning, and several other objections, demonstrate the folly of the Repeal Amendment.

  • The Repeal Amendment will further freeze a Congress that has an extraordinarily difficult time actually doing anything, what with filibusters, one-senator holds, and widespread fear of offending any voters. 
  • If the public demand for repeal of a federal law is so strong that 33 state legislatures would approve repeal resolutions, it is inconceivable that Congress would not repeal the law on its own.  We’re talking about professional politicians in Congress.  They can read the newspapers and follow the polls. 
  • Without expressing tremendous regard for Congress as an institution (see first paragraph), why would the thousands of members of 50 state legislatures do a better job of evaluating federal legislation on immigration, climate change, or financial industry regulation?    The ordinary state legislator is likely to approach the question of repealing a federal law with all the background that can be provided by a cable news shouting match.  In any event, many state legislatures are thoroughly dominated by a few powerful political leaders.  The Maryland Legislature, in my home state, falls into that category.  The Repeal Amendment would not mark a net gain for democracy.
  • Speaking of democracy, one plain result of the Repeal Amendment would be to further empower small states.  Indeed, federal law could be repealed by 33 state legislatures that do not represent even a majority of the population.  The small states already have exaggerated power in the Senate.  The Repeal Amendment would only reduce the democratic nature of our government.
  • State legislators have a great deal of important work to do.  Asking them to evaluate federal legislation, in addition, will only distract them from the work their constituents need them to perform.  Indeed, proponents of the Repeal Amendment acknowledge that very rarely will two-thirds of the state legislatures agree to repeal a provision of federal law.  Indeed, one proponent insists that Congress could simply re-enact any provision repealed by the states.  So what is the point? 

Beats the hell out of me.


  1. Paul Vamvas on January 18, 2011 at 9:21 pm

    Isn’t this really just nullification by other means and didn’t we already have a big fight about this around 150 years ago?

  2. David O. Stewart on January 19, 2011 at 5:31 am

    Absolutely — the only “new” wrinkle is that the amendment sponsors acknowledge that they have to change the Constitution in order for states to have the power to nullify congressional actions. So the Civil War established that much . . .

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