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Repeal Amendment restores balance

December 16, 2010
Op-Ed and Speech
By Rep. Rob Bishop
Deseret News

I recently introduced a constitutional amendment that gives two-thirds of the states the power to repeal any federal law or regulation. The amendment reads:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."

The Founders designed a system of government where states would play a vital role in the governance of the American people. They envisioned a system where states had the capacity to restrain federal power. Unfortunately, that balance between national and state power has eroded.

The decline in the political vitality of the states and the consolidation and centralization of governmental power in Washington cannot be chronicled in this brief space. However, it is safe to say that over the past century, especially in the last 50 years, state governments have gradually lost the tools they had to compete in the federal system through a combination of aggressive federal legislation and funding, overreaching court decisions, and constitutional amendments. Today, the national government has become immense in size, reach and expense. It totally dominates our system of government.

The sole purpose of the Repeal Amendment is to return our system of government to something closer to the balance of power provided for in the original Constitution.

Some have misunderstood or misconstrued what this amendment would do.

First, the Repeal Amendment is not, as some have claimed, a "nullification" amendment. Nullification is the long-disputed theory that any single state has the power to ignore within a state's boundary a federal law it deems unconstitutional. The Repeal Amendment is something else. The Repeal Amendment provides a super-majority of the states a tool to reject a federal law or regulation for constitutional or policy reasons. In practice, Congress could re-enact a repealed measure if it feels that two-thirds of state legislatures are out of touch with popular sentiment. And congressional re-enactment would require merely a simple majority. Ultimately, the Repeal Amendment recognizes federal supremacy but at the same time, grants states the power to force Congress to take a second look at a controversial law.

Likewise, this amendment has nothing to do with re-litigating the Civil War or returning to the Articles of Confederation. The Repeal Amendment is not a call to disassemble the government in Washington or live in the past. It is a call for a return to the Framers' vision of a nation of states, a system of government in which the national government exercises sovereign authority in accord with its constitutional limits, and the states exercise sovereign authority in all other areas.

Some critics argue that any constitutional amendment shows insufficient reverence for that original text. Some of the same critics argue that the Constitution is a "living document" that should change with the times to read new powers and interpretations into its text. I disagree. The Repeal Amendment follows a process consistent with the Constitution's original intent.

The Constitution established a national government that performed a limited range of functions and rarely intruded into everyday life. Times have changed. Now is the time to limit encroachment of power by the national government and restore the ability of the states to act on behalf of their citizens. The Repeal Amendment provides a measured and targeted tool for states to reverse particular congressional acts and administrative regulations so long as two-thirds reach a consensus.

While the Repeal Amendment by itself will not immediately turn the tide of a power-hungry, overreaching national government, it is an arrow in the quiver of states to begin restoring the balance of power our Founding Fathers intended when they drafted the Constitution.

The Repeal Amendment will restore the vision of the Founders, not upend it. The Repeal Amendment is not a silver bullet. It, alone, will not restore the balance. But it does represent a step in the right direction. In the coming months I plan to propose additional legislation, which, combined with the Repeal Amendment, will help set us on the path to the Founders' vision of balanced government.