How Strange! A Proposed Amendment to the Constitution

by Derrick G. Jeter

Constitutional stupidity among the supposed educated elites never ceases to amaze. No more so, at least, than the rank hypocrisy of some on the political left who find it convenient to ignore the founders and the Constitution when it’s convenient to do so, but then suddenly become the founders’ and the Constitution’s champions when some on the political right speak of the 10th Amendment or propose an amendment to the Constitution. In these latter cases the sacredness of the document is held sacrosanct by the purveyors, under different circumstances, of Constitutional ignorance.
And so it is with Dana Milbank, in a Washington Post op-ed, who takes to task soon-to-be House majority leader, Rep. Eric Cantor (R–VA) for backing a proposed amendment offered by Rep. Rob Bishop (R–UT)—an amendment, by the way, that attempts to restore some semblance of authority to the 10th Amendment. The amendment, actually written by Randy Barnett, of the Cato Institution, and William Howell, the Virginia House Speaker, 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Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed. [1]
My interest here isn’t with what may be the various strengths or weaknesses of this “Repeal Amendment,” or in Milbank’s criticism of those strengths and weaknesses. [2] Rather, I’m interested in Milbank’s criticism of the idea of amending the Constitution. Milbank asks, “Would it be easier if they [the Republicans] just got some red pens and walked over to the National Archives to do the job [of what he calls “an attempt to rewrite the Constitution”]?” [3] Well . . . yes, I suppose it would. Amending the Constitution is no mean feat, since there have only been twenty-seven amendments to the Constitution since 1791, when the Bill of Rights (the first ten amendments) was first adopted.
Milbank is correct in asserting that Cantor, Bishop, and the supporters of the proposed amendment “believe they are rebalancing the Constitution in a way the Framers would like.” But then he offers this non-sequitur: “It’s strange that the lawmakers would show their reverence for the Founding Fathers by redrafting their work.” Has he not read Article V of the Constitution? “The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States.” For anyone who bothers to actually read the Constitution, and allows the framers to actually say what they’re saying, would have to conclude that the founders assumed the Constitution need “redrafting” from time to time, as the country grew and changed. How is that strange? I can only conclude that Milbank must think it strange that Progressives like Woodrow Wilson and Franklin Roosevelt would have supported the 16th, the 17th, the 20th, and 21st Amendments. And he must think it down right bizarre that the original framers of the Constitution amended the document shortly after it had been written, when they added the Bill of Rights. Where’s the reverence in that? The Constitution is the greatest, and longest enduring, piece of statecraft every devised by the mind of man, but it is in no way perfect. It was written by men for men—sinners all. But, apparently unlike Milbank, our founders had enough wisdom and humility to concede that it might need refining from time-to-time, “in order to form a more perfect Union.”
Of course Milbank couldn’t leave well enough alone with his illogical claim that the Repeal Amendment is a strange attempt at “redrafting” the Constitution. Like a dog returning to his vomit, he must return to another convoluted claim that the “mechanics of the amendment are . . . a bit odd. It would allow the repeal of any federal law—from civil rights to health care—if two-thirds of the states say so. But that could mean that the 33 smallest states, which have 33 percent of the population, have the power to overrule the 17 largest states, which have 67 percent of the population.” But why is this odd? Because 33 states, even if they are small, may vote to repeal a federal law? The traditional of two-thirds votes is a long standing one and constitutionally based, to say nothing of the fact that this amendment calls for a deliberative process while most amendments are absolute. Are we concerned about the Constitution or aren’t we? If we are, why is using constitutional measures and allowing for debate among the states odd? But more to the point, Milbank’s implied claim that the majority of the population (his “17 largest states, which have 67 percent of the population”) has a greater right to determine the law of the land undercuts the Constitution itself. Ours is a federal-republican form of government, not a direct democracy where the simple majority might easily suppress the rights of the minority. And what if the shoe was on the other foot—if the 17 largest states and an equal amount of small states determined to repeal a federal law? Would he still think the mechanics of the amendment odd?
Milbank’s article isn’t a defense for the Constitution as much as it’s a piece damning those he disagrees with politically—the Republicans in general and Eric Cantor in particular. His conclusion is proof enough of that. Quoting Cantor and ending with a snarky comment:
“James Madison is the U.S. Constitution, and he provides such a role model. . . . Many days, probably most, I walk by the portrait of James Madison in the hall just outside the chamber of the U.S. House of Representatives, pinching myself, wondering what I’m doing here.” Now he knows: He wants to be Madison’s editor.
Well, yes he does. And Mr. Madison would approve, since he’s the one who wrote the provision for amendments to begin with. So, I leave where we started: how is a proposed amendment a strange way to honor the founding fathers?
[1] Randy Barnett and William J. Howell, “The Case for a ‘Repeal Amendment,’” (accessed December 3, 2010).
[2] Milbank offers but few claims against the actual “Repeal Amendment,” and those without Constitutional, logical, legal, or historic support. He claims that the amendment would lead to nullification, which, he says, led to the slavery, the Civil War, and the Jim Crow laws of the South. However, a claim made does not an argument make. And that is what is missing in Milbank’s attack on the proposed amendment.
[3] Dana Milbank, “A Strange Way to Honor the Founding Fathers,” The Washington Post, December 1, 2010, (accessed December 3, 2010), and so throughout.