The Constitution and the States

There is enthusiasm for a new constitutional amendment that would allow the states to nullify a federal law if two thirds of the states voted in favor of nullification. The reaction of Washington Post columnist, Dana Milbank is typical.

The amendment is an obvious reaction to Obamacare which passed with a small, partisan majority. As the Congressional Budget Office pointed out, Obamacare represents a major expansion of government power. Never before has the government required the purchase of a product as a requirement of citizenship. The fact that such an expansion happened without any Republican votes should be a warning to both sides about partisan overreach.

If Milbank was honest, he would have mentioned Obamacare in his column. He did not. Instead he mentioned racism and slavery. Repeatedly. Milbank presents the amendment as a move by the South to restore slavery.

"This repeal amendment gives states a weapon, a tool, an arrow in their quiver," he told a group of state legislators assembled at the Hyatt in downtown Washington. Of course, states have fired similar arrows before, and it led to a Civil War and Jim Crow - but Bishop wasn't going to get into that.

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Then there's the unfortunate echo of nullification -- the right asserted by states to ignore federal laws they found objectionable - and the "states' rights" argument that was used to justify slavery and segregation.

He is also offended by the idea that just any states should have so much power.

The mechanics of the amendment are also a bit odd. It would allow the repeal of any federal law - from civil rights to health care - if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.

He must be deeply troubled by the US Senate which also allows a majority of the smaller states to overrule the larger ones. This quickly becomes a numbers game. 25% of the population resides in just three states (California, Texas, and New York). Add in Florida and Illinois and you have a third of the population in 1/10th of the states. How much power does Milbank want to give to those three states?

Milbank also sees a paradox in politicians who value original intent but want to amend the Constitution.

Republicans gained control of the House last month on a promise to "restore the Constitution." So it is no small irony that one of their first orders of business is an attempt to rewrite the Constitution.

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Several amendments? Would it be easier if they just got some red pens and walked over to the National Archives to do the job?

Let's be clear about how Conservatives want the Constitution to be treated. It was never intended to the the end world on any subject. That is why in includes the process for amending it (which, by the way, also allows smaller states with a minority of the population to override the larger states). Conservatives feel that the Constitution should be accepted as it is. If it needs updating then go ahead and amend it. That fits right in with the writers' original intent.

Instead, for the last several decades, Liberals have insisted that the Constitution should be treated as a "living document" and constantly re-interpreted for the modern world. The 2nd Amendment debate is an example of this. It is true that the Framers had no concept of automatic weaponry when they said that the right to bare arms shall not be abridged but they wrote what they wrote. If you disagree then get an amendment passed. Liberals prefer to short-circuit this process by finding a sympathetic judge or simply ignoring the Constitution.

Another factor in the debate is the way that the relationship between the federal government and the states has changed. Originally the states were assumed to have authority over most things. Congress's authority in the Constitution is actually pretty limited. After the Civil War, the North decided that the states could not be trusted so the federal government was given power over the states. This led to a huge growth in the size and scope of the federal government, eventually leading to Obamacare.

In its entire history, the US government has never before asserted the authority to compel its citizenry to do something. All previous laws were either prohibitions (you will not do this) or conditional (if you do this then you must do it this way). If this stands then eventually the Conservatives will use it in a way that the Liberals do not approve of. Liberals should remember this and support the amendment.

Also keep in mind that getting 2/3s of the states to agree on anything is tough. Look at how few times the Constitution has been amended. If 2/3s vote a particular way then it means widespread dissatisfaction.