Repudiation: Defending America's Constitution

As I laid out in a prior post here, America's Constitution is under assault by the very people who have taken oaths to uphold and defend it. It is my belief that while the Constitution does an excellent job of defending our Liberties, it can not defend itself from assault from those within the three branches of government. Consequently, I believe that Americans need to be empowered with the legal means to defend our Constitution from assault by those we elect.

Fortunately, I am not alone in thinking this: John C. Calhoun, America's seventh Vice President, was of similar thought. Calhoun essentially believed that no matter how many enumerations of government powers or provisions to restrict government powers are present, if the people who benefit from those protection are not empowered with "the means of enforcing their observance", those protections will be, in themselves, insufficient to prevent the party in power from throwing off those restraints and disregarding them. (h/t to Thomas J DiLorenzo writing on www.tenthamendmentcenter.com) (Much like the party currently in power has done, and, some would argue, the Republicans did when they were in control of Congress.)

In any case, finger-pointing aside, it's time that Americans, who enjoy the protection of the Constitution, be given the authority and means to protect it. How can we be so empowered? There are probably several ways, but I have one in-mind, and it's an adaptation of a concept that Calhoun advocated: nullification. The concept of nullification is essentially that if any state disagrees with a Federal law, that state can pass a law nullifying the Federal law. I do not believe that nullification is a sufficient means to defend the Constitution, as it could lead to the legal fabric of America looking like a patchwork quilt, where each state has a different set of Federal regulations which are recognized. No, I think we need to go farther: I believe that the States which comprise the United States need to be empowered as the final arbiter of the Constitutionality of Federal laws (with the ability to override even the Supreme Court).

I am proposing a means of repudiation of overreaching Federal laws. Here's how I envision it working:

• Every state will have the right to choose the method of repudiation: either a ballot initiative in a general election, or the state legislature can pass a proclamation of repudiation
• When Congress passes unpopular legislation, states that disapprove can pass a proclamation of repudiation of the specific legislation via one of the above methods.
  
• When either 2/3 or 3/5 (or some other percentage to be agreed upon) of states have passed proclamations of repudiation, the Federal law, in its entirety is rendered void. (Note that a Constitutional amendment requires ratification by 3/4 of states. Thus, I think the appropriate percentage for repudiation should be some percentage less than 3/4, but greater than 1/2.)
• Repudiation can only be used to enforce the tenth amendment. Powers that are specifically enumerated to the Federal government (treaties, declarations of war, etc.) cannot be voided by repudiation.
• Repudiation has a sunset provision: The required number of states must pass the proclamation of repudiation within a specified time frame (like 5 years) of the passage of the offending legislation.
  

I know that this idea requires one thing that will likely make its adoption highly unlikely: This would require a Constitutional amendment. Even if a single law could provide for this framework, it would undoubtedly be challenged in the courts. While this does pose a challenge, it's not insurmountable. It can be done. Especially if Conservatives make an idea like this a central "plank" in a larger Conservative platform based on the idea that we will "Never Again" allow government to run amok trampling our liberties and passing bad bills. But we can only keep such a promise by providing a framework that will allow for the rejection of such bad bills in perpetuity.

I am proposing this as a starting point. I am sure there are ways that this idea can be improved, so let me know what you think, and any specific ideas for improvement. There are a few "requirements" that I had when I came up with the idea:

• It must require action by the individual states (or the citizens thereof), not a "rubber-stamp" item that appears on every ballot that is eventually ignored.
• It should be necessarily difficult. Getting an initiative on a ballot is necessarily difficult, as is getting a state legislature to act.
  
• It should require action by a significant number of the states so as to be necessarily difficult. This also provides a means of demonstrating that laws that are so repudiated are unpopular across a large spectrum of the country.
• The sunset provision makes it more likely that repudiation will be used for legislation that is obviously bad. This should not be used as another way to make controversial issues turn into long and drawn-out fights.
  

I am very interested in any comments you may have. I'd like this to be the beginning of discussing some common-sense ways we can wrest control of our government from those who would use its power to destroy the country I love!