Repeal Amendment Yes, Con Con No

On November 29, Patrick Tuohey wrote in support of “The Repeal Amendment” in the Missouri Record. http://missourirecord.com/news/index.asp?article=10204. I applaud and support Patrick’s proposal of the repeal amendment. While Patrick distinguishes the repeal amendment from nullification, in actuality, the repeal amendment would explicitly insert the concept of nullification within the very terms of the U.S. Constitution itself. As quoted by Patrick, the repeal amendment would state as follows:

Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.

While I believe the right of nullification inherently resides within the sovereignty of the states, Patrick would make that right explicit within the Constitution. This would significantly clarify the situation.

There is one aspect of Patrick’s proposal that does give me great pause, however. The significant question that remains unanswered is how the amendment should be accomplished. The U.S. Constitution provides for two ways of amending it. As Patrick points out, the states may either ratify an amendment proposed by Congress or call for a constitutional convention. Many in the past have proposed that the states should call a Constitutional Convention (or a “Con Con”). Patrick implicitly supports the effort of calling for a Con Con in that he cites state action in this regard. While there is great potential benefit in adopting the repeal amendment, I believe there is greater potential risk in calling a Con Con.

Let us look at what we have. Patrick rightly points out that our Constitution is a marvelous document. The flaw in our culture today is not in the document itself but in the people who are the caretakers of the powers delegated by the document. The simplest of solutions is to find people who will be faithful to the trust that they have been given.

The real risk of a Con Con is that the Convention would be free to propose amendments to the Constitution. Presumably the Convention could propose as many changes as it wanted to the Constitution, including a complete rewrite of the Constitution itself. After all, such is the origin of our original Constitution, proposed in a convention called to amend the Articles of Confederation.

With this possibility at hand, I am forced to ask the question, would I prefer to live under a document written by the statesmen of the past or the politicians of today. Let us compare the two. Our founders, for the most part were classically trained men who read Cicero, Locke, and Blackstone. According to Patrick Henry, “It cannot be emphasized too strongly or too often that this great nation was founded, not by religionists, but by Christians, not on religions, but on the gospel of Jesus Christ!” This means that they believed in certain absolutes, among these was the certainty of the law. According to Sir William Blackstone, the great legal commentator of the time, “This law of nature, being coeval with mankind and dictated by God himself, is of course superior in obligation to any other-It is binding over all the globe in all countries, and at all times; no human laws are of any validity, if contrary to this: and such of them as are valid derive all their force, and all their authority, mediately or immediately, from this original.” Blackstone went on to recognize the source of all law as the Bible. “This has given manifold occasion for the benign interposition of divine providence; which, in compassion to the frailty, the imperfection, and the blindness of human reason, has been pleased, at sundry times and in diverse manners, to discover and enforce its laws by an immediate and direct revelation. The doctrines thus delivered we call the revealed or divine law, and they are to be found only in the holy scriptures.” What is significant is that our founders understood that what God gives man cannot take away. They were driven by a vision of liberty for all.

Our present generation of politicians does not understand even these most basic of concepts. Consider now that our culture's most recent fad principle is “Hope and Change.” Our leaders for the past two years have been guided by the proposition of spreading the wealth around, i.e. legislated theft. Have our leaders ever read Blackstone? Do they understand the moral underpinnings of liberty as John Adams did, Adams who said, “Our Constitution was made only for a moral and religious people. It is wholly inadequate to the government of any other.” To post modern culture truth is relative. Political correctness is the overriding principle today. I would not chance the rewrite of our great national charter to times such as these.

However, there is a way to achieve the adoption of the repeal amendment with greatly reduced risk to our national charter: have Congress propose it. If as Patrick states, one can hope that it will gain traction with liberals as well as conservatives, it should be proposed in Congress. If Congress proposes the amendment, the states can ratify that one amendment and no others. One might also suggest an ancillary amendment to the constitution and that is to permit the states to propose specific amendments for consideration by the other states and the Congress. Such a dialogue among the states would be healthy.