The Revolution this time: The 28th Amendment

By Bernie Quigley

For The Hill on 12/17/10

As Linda Greenhouse reports today in the NYTs, it has been 15 years since the Rehnquist court began applying the constitutional brakes to assertions of federal power that had seemed unassailable since the New Deal, clarifying “the distinction between what is truly national and what is truly local.”

Greenhouse’s essay is appropriately titled The Revolution Next Time, but it might have been called The Revolution this time, as yesterday, a resolution (H.J. 542) calling for a 28th amendment to the U.S. Constitution, permitting states to repeal federal laws and regulations, was introduced in the Virginia House of Delegates by Delegate James LeMunyon . If ratified as part of the U.S. Constitution, the amendment would permit two-thirds of the states, when acting in unison, to repeal specific federal laws and regulations.

Federal mandates imposed on programs such as transportation, education, and social services are frequently implemented at the state and local level, says LeMunyon. These programs have expanded beyond the capacity of Congress to oversee them. Federal laws and regulations have become so intertwined with state laws that it is difficult for states to apply cost-saving reforms and policy innovations when necessary.

“The Repeal Amendment aims to re-balance the relationship between the federal and state governments as our Nation’s Founder’s intended,”says LeMunyon. “By providing states recourse to counter federal overreach and policy micromanagement, the amendment would also have the practical effect of creating a better partnership between states and the federal government to ensure that programs meet the needs of citizens, do not waste tax dollars, and when necessary, are fixed or eliminated.”

In order for the amendment to be adopted as part of the U.S. Constitution, 34 states are required to call a convention to consider the amendment, and if approved, it must be ratified by 38 states. Congress may also approve the amendment by a two-thirds vote in each House followed by ratification by 38 states.

Ever since the Rehnquist court it has been quite easy to get a good debate going, among people who spend time thinking about such matters, about whether the federalism revolution really had amounted to much beyond the symbolic, Greenhouse writes.

As Zhou Enlai said about the French Revolution 200 year later, it is yet “too early to tell.”