Super Bowl Update

By: Olympia Meola

Published: December 10, 2010 2:17 PM

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Attorney General Ken Cuccinelli went toe-to-toe with Chris Matthews last night over the repeal amendment, U.S. commerce clause, nullification and the state’s health care lawsuit. 

Cuccinelli disputed Matthews’ theory that a repeal amendment would open the door to the country’s less populated states joining together to overturn federal action, saying it would require bipartisan support. The constitutional amendment would allow two-thirds of the states to collectively repeal a federal law or regulation. 

“What it’s intended to do is bring back a sense of balance,” Cuccinelli said.  

Matthews likened it to a “whiskey rebellion” on paper, “a way to take on the federal government.”  He said the effort was playing to the “nullification crowd,” which Cuccinelli emphatically denied, waving his finger and shaking his head.

“That is not what’s going on here,” Cuccinelli said, “this is being done in the process the constitution provides for.”

Georgetown Law Professor Randy E. Barrett* came up with the idea for such an amendment, and he and Virginia Speaker of the House William J Howell presented it in a September OpEd piece in the Wall Street Journal, in which they argued,

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to "nullify" unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president's veto power.

Mr. Barrett's idea for such an amendment initially stumbled around like the Redskins' offense and then abruptly, according to Slate.com, gained political traction.

Now, just two months after the proposal was a twinkle in a Virginia legislator's eye, the leadership of nine states is showing interest, and the popularity of the amendment's Web site (they have them nowadays) has "mushroomed." And this week, completing the proposal's rapid march from the margins to the mainstream, Rep. Rob Bishop of Utah introduced the amendment in the U.S. House of Representatives, pledging to put "an arrow in the quiver of states." The soon-to-be House Majority Leader, Eric Cantor, said this week that "the Repeal Amendment would provide a check on the ever-expanding federal government, protect against Congressional overreach, and get the government working for the people again, not the other way around." 

There's no question that such an amendment would decentralize the power structure of this country's government,  and so would be a significant re-embracing of Federalism.

Federalism, as organized in the Articles of the Confederation, was this country's initial unionizing principle, but it was ditched back in 1783 because the United States of America was on the brink of dissolution. The United States Constitution was then conceived as a compromise that would strengthen the power of the Federal Government in a way that could still garner approval from states accustomed to acting mostly in their own interests.

So back to that repeal amendment.  Do we want the politicians of our particular state, the Commonwealth of Virginia, to have more power over us and the Federal Government less?

I'd really like to know what you think.

But let's leave the Founding Fathers out of the discussion, okay? Personally, I find it so odd when people presume to speak with authority about how those guys would want this country to work in 2010 based on what worked in 1783. From what I've read about the Founding Fathers, that bunch of politicians completely understood that if a government doesn't adapt to the pressing needs of its day, there will pretty quickly be no country left to govern.

*Mr. Barnett is a professor at the Georgetown University Law Center and author of  Restoring the Lost Constitution: The Presumption of Liberty" (Princeton 2005).