Monday, November 29, 2010

States Rights and the Constitution in Virginia

Virginia House Speaker Bill Howell (R-Fredericksburg) has announced that the Virginia legislature will consider an amendment to the Constitution that will allow two-thirds of the state legislatures to repeal federal legislation. Right now, I have no idea how plausible this is - I am skeptical about how far it would get, but it's fascinating for at least two reasons.

Reason 1: It's a pretty decent reform that is not what Tom Woods has been proposing
First, like the repeal of the seventeenth amendment, I think this is actually an excellent Constitutional reform. The arc of Constitutional reform for most of the 19th and 20th centuries was in the right direction: expansion of democracy, incorporation of the states into Constitutional defenses of liberty, and the solidification of the federal government as a functional institution of governance. But what we've found is that while democracy and equality have benefited from the amendments we've passed, federalism has atrophied as a meaningful pillar of American society. The question is, how do we give greater primacy to federalism? For a while we tried to do it legislatively with various devolution measures, and these provided a mixed record of success. In the end, my assessment is that these devolution measures ended up giving the states more freedom of action, but essentially putting them on a federal allowance. Repealing the seventeenth amendment, which provided for the direct election of Senators, would elevate the role of the states in a meaningful way, and make the federal government accountable to the states. This amendment that will be considered by the Virginia legislature would appear to do the same. Winning two-thirds of the state legislatures for repeal is quite a hurdle, after all. It's a relatively conservative measure, in that sense.

Of course for my libertarian readers, I'm sure this brings Tom Woods' recent push for nullification to mind. Nullification is a tough subject, and I think this is especially true for thoughtful Southerners. On the one hand, if a law is blatantly unconstitutional, I don't think anyone would really balk at local officials who stand up against it. Lots of states have marijuana laws, and have moved against the Patriot Act, etc. I would argue that when nullification is used against truly heinous federal laws as Jefferson and Madison originally intended it to be used against the Alien and Sedition Acts, you don't have a groundswell of opposition to it. We have an inherent sense of what is appropriate without assuming a right of the states to opt-out of the decisions of the Union. Woods doesn't have to make his case on these counts - he'd be preaching to the choir. What bothers me about Woods is that he's trying to push an opt-out understanding of the Constitution that allows any state to appeal to even the most defunct and demolished understandings of what is "unconstitutional" to chart its own course. This is not federalism - this is a repudiation of our constitutional republic. Moreover, this is not what Howell is proposing at all.

I'm sure Tom Woods will embrace Howell's proposal in the Virginia legislature (and I'm sure that lots of normally objective liberals are going to howl against it make vague references to the Confederacy), but it's simply not the same as Woods' nullification. This is not an opt-out for states. This is a reform of the way federal legislation is passed that does provide a greater role for the states, but still relies on very broad consensus for action. Two-thirds of the states deciding they don't like one egregious piece of legislation is very different from South Carolina deciding it doesn't want to be bound by two-thirds of federal legislation because some crack-pot Constitutional "scholar" supplied them with a handful of bad arguments telling them they don't have to. This isn't the Tom Woods nullification plan - this is the anti-Woods states rights plan.

Reason 2: It opens Pandora's Box on the Constitution
Jefferson has remarked that the tree of liberty must now and then be fertilized with the blood of patriots and tyrants, and that constitutions should be scrapped and rewritten on a regular basis. I'll humbly disagree with Jefferson on this point, and submit that he probably would have come around to the modern view himself. Jefferson's primary concern was that he didn't want previous generations binding future generations to their understanding of government. In other words, Jefferson was a progressive and a democrat that wanted flexibility in government. What I think we've learned is that (1.) war is an awful and scarring way to keep government flexible, and (2.) the Constitution was constructed with deliberately flexible language for precisely the reasons that Jefferson was concerned about: the founders wanted to leave a wide open field for their descendants to chart their own destiny, within a structure that they carefully set to balance liberty, equality, and self-governance.

What does this have to do with Howell's proposal in the Virginia legislature? Howell is proposing to pass this amendment with a constitutional convention. Two-thirds of the state legislatures would have to call for a convention, at which three fourths of the states would have to ratify the amendment. No constitutional amendment has ever been passed in this way - all have originated in Congress. One of the concerns is that if a convention is called, the whole Constitution could be scrapped or modified. This is essentially what happened with the first Constitutional Convention, after all. Needless to say, I think this probably wouldn't be an ideal move. Our Constitution is working well, but I don't hold the document sacred. I'm more concerned that I don't think anyone today could write one that would improve it, and I'm especially concerned about the hostilities and passions it could raise. Of course, if a convention were called without incident or radical change, that could be a great step forward.

Federalism is weak in this country. The Constitution has served us well, but people don't place a lot of value on it and the ones that loudly proclaim the value they place on it often distort it to fit their own ideology. This Howell amendment probably won't pass, but at its heart it offers a very good proposal and raises some interesting issues.


  1. On Reason #1: You write "Winning two-thirds of the state legislatures for repeal is quite a hurdle, after all." I agree that it's a hurdle, but certainly not an insurmountable one. With over 20 states instantly challenging health care reform in court, I don't think it's out of the realm of possibility to say that actual repeals of legislation by a 2/3 vote of the states is quite possible, even likely, depending on the circumstances. That said, I agree that it would still take quite a bit of momentum for this to happen.

    A concern I would have would be over the potential influence of state governments, via such a veto provision, over areas that are, constitutionally and historically, exclusively domains of the federal government (like foreign affairs). Again, a 2/3 vote is a high hurdle, but not inconceivable -- and even if such a vote failed to reach 2/3, its mere existence could be quite harmful to the appearance of the United States speaking with one voice in international relations. Granted, you could make the same argument with Congressional involvement in foreign affairs as well, but the sheer additional numbers of people with an inkling of power in the process (state legislators from Mass., Miss., Iowa, Vt., etc. etc. get to have a formal, potentially binding say on how we conduct foreign affairs) could have a negative effect on the process.

    Thinking out loud some more: It would also seem to raise some vexatious issues of democratic accounatability in a situation like this: John Doe, a Md. resident, has a congresswoman and a senator who both vote for Bill X. Bill X passes both Houses of Congress and is signed by the president and becomes law. However, a 2/3 vote of state assemblies veto Bill X (and say Md's state legislature votes against repeal), causing its repeal. How is John Doe to hold any of his representatives accountable, when members of other state assemblies have seemingly thwarted the will of Congress and the President? -- This seems different than when Doe supports his representatives in Congress who vote one way even though Congress votes the other; there it is easier to argue that Doe must simply live with the results because everyone had a chance to select the Congress that decided the issue, whereas Doe has no control over the makeup of other states' legislatures.

    Your Reason #2 arguments are quite persuasive, and I agree that the specific method of calling a constitutional convention could be quite divisive and unpredictable.

    Anyway, fascinating and thought-provoking stuff. I'm open to responses and criticisms!

  2. Very interesting thoughts, Scott.

    On your first paragraph, certainly it wouldn't be insurmountable but that would be the point wouldn't it? If it was insurmountable there would be no reason to talk about it! My concern is whether it would be like old conceptions of nullification - an opt-out of constitutional government, which is no constitutional government at all. I do not think it would be such an opt-out, but I should hope it could actually be useful as well.

    You raise the issue of health reform - what of it? If 34 state legislatures object to health reform doesn't this say something about the law itself? In this particular case you and I may not like what such a repeal would accomplish (although I could stand for doing away with a few components of health reform), but this probably isn't the best way to look at the issue. The point, I think, is that health reform itself might have looked different if the Congress knew it faced the potential for state legislature repeal. I imagine it would be easy to grand-father in past legislation and only have the amendment apply to future legislation, and this might be wise.

    Similarly, I think the very good points you raise about foreign policy could easily be fixed. For example, don't allow state-initiated repeal of (1.) treaty ratification votes, or (2.) advise and consent votes. That should protect you from most abuses on the "proper sphere of the federal government" front.

  3. Your thoughts on democratic accountability are very interesting, and I'm not exactly sure what I think yet. An initial response would simply be that "yes, this would downplay democratic accountability but then so does equal state representation in the Senate or appointments for life to the Supreme Court". It might temper democratic principles, but that's not necessarily a deal-breaker.

    On the other hand, it also means that the people elect hundreds more representatives that impact federal legislation than they did previously. Thought of this way, there is more democratic accountability.

    I'm struggling, though, to understand exactly what the problem is. If your senator votes your way but the measure loses, we don't consider it a loss of democratic accountability. If your legislature votes your way but the repeal measure loses (or wins), what is different exactly? Is the concern that it overrides Congress's vote?

    How is this any different from your representative voting your way (in favor, let's say), your senator voting your way (in favor again), but a bill winning in the house yet losing in the senate. How is this different from the introduction of state legislatures as a de facto third house of Congress? How is the role that state legislatures play any different than the role that the president plays? The president is essentially tasked with vetoing or not vetoing, which is essentially the role that would be carved out for state legislatures?

    If we don't have a problem with a bicameral legislature, what is the concern with a de facto tricameral legislature? If we don't have a problem with a president tasked with a "repeal or sign" mandate, what is the concern with a supermajority of legislatures tasked with a "repeal or sign" mandate?

    It does add more constitutional, republican, federalist wrinkles to the pure, clean fabric of a popular democracy. But surely it doesn't add any wrinkles that we haven't seen before, does it?

  4. On health care reform - This is exactly why we should have the repeal amendment. The federal government continually reaches into areas that it should not be in (thinking primarily of education). Often these laws take the form of unfunded mandates, essentially taking power away from the states but forcing them to fund something they did not decide on.

    On the foreign affairs - yes it would probably be good to have some sort of exemption from repeal as Daniel mentions in his comment. Of course on the flip side if 2/3 of the states are against a course of action on foreign affairs perhaps the federal government didn't make a good decision in the first place.

    On the democratic accountability - Just as Doe does not have a say in other state legislatures he doesn't have a say in representatives to Congress from other states, so it's rather all the same. And if the law if repealed by the states and Congress really wants it they can re-propose it and pass it again, perhaps in a form more acceptable to the states.

    On the Constitutional Convention - It would be rather interesting if the convention decided to completley re-write the constitution! I kind of doubt it would happen, the factors that caused that to happen at the first one aren't really present today. I would be most afraid that the highly vocal small groups of extremists we see dominating national politics today (on both sides) would hijack the process.

  5. To my rough-edged commenters: Kendra is my sister and I'm defensive, so play nice. She also showed me this article - I should have done a hat-tip.

    To Kendra: I think it's important to keep in mind that neither our representatives in state capitols, nor our representatives in Washington, nor we ourselves have any inherent advantages in divining what is a properly "federal" role and what isn't. What we do have, though, is competing incentives as institutions of government. We have checks and balances to ensure that our ability to govern our own lives is protected against the federal government. Over the course of our history, we have increased the defenses we have as individuals against encroachment by state governments (through incorporation and the Reconstruction amendments). I think this is good. However, the defenses that the states have against the federal government have deteriorated, primarily through the application of the fourteenth amendment in certain circumstances and the 17th amendment. So for me the question of what is properly "federal" is a very open one that people have legitimate disagreements over. I think there is a constitutionally viable federal role in both health care and education. The point of this sort of reform, for me is not so much that it would smite an over-reaching federal government, so much as that it would rebalanced various interests that have been imbalanced (and detrimentally so) for quite a while now. It comes out close to your point, but I think I view it from a slightly different angle.

    As for the convention itself - the truth is we have no idea what would happen. I see no Washingtons, Madisons, Hamiltons, Jeffersons, or Franklins. I don't see a single person that would come close, in fact. And I see a lot of people with violent and revolutionary delusions out there that are only being held back by the sheer momentum of history that chastizes open revolutionary violence. A Constitutional Convention would represent a bracing halt to that historical momentum, and I'd be afraid we would be torn apart by the whip-lash in a world where foreign powers would be far more interested in displacing us than they were in 1787, and in a world where we don't have leadership that we had in 1787.

  6. Aww, you don't need to be protective.

    I think your point about the states and their lack of protection against the federal government was more of what I was getting at than "smiting" and overreaching fed government. Basically the states really can't fight back against the federal gov (not sure if that's the best phrasing), except through the courts as we are seeing with the Health Care stuff. My biggest issue is the unfunded stuff which then usually get passed on to the localities. So basically we have really gotten away from federalism.

    I don't think this will really go anywhere, and if it does there will be a whole lot of controversy and debate (as there should be with any amendment to the constitution). Sadly, I think the majority of Americans don't really know the foundations and workings of our system. So I don't think this will get a lot of popular support.

    With the lack of strong leadership and the presence of heated reactionaries I'm not sure this is the best time for a constitutional convention. Ideally, I would hope that those who support sanity and moderation would come out and lead. Long story short, I'm rather undecided.

    I have State and Local Gov class tomorrow and will probably mention this. Should be interesting to see what other students say.

  7. Aww, you don't need to be protective.

    I don't know... do you read what gets said on here sometimes?

    Actually, you would probably do fine... you might need to defend my fraternal honor, though. Just make sure you don't say anything harsh about a priorism.

  8. Health care might have been too current an example -- I was only using it as an example of states acting together in opposition to a congressional action. I agree that it's certainly not perfect, and that existing legislation should be grandfathered in and protected from any state-based veto. As for what 34 state legislatures disapproving of health care or some other federal initiative tells us, the implication is self-evident that the law is flawed in some way!

    I think some of my unease comes from the possibility that states would have a veto over Congress' function to prescribe national solutions (for better or worse) for national problems, a function that state legislatures don't need to be concerned with. State legislatures' interests (only looking out for a specific state's population) are inherently different than that of Congress -- which ostensibly seeks to work for the best interest of all Americans.

    I think that on the surface it looks like the states would just be a third chamber of Congress, but to me there is a critical difference that goes to my concerns about democratic accountability: the state legislatures would not take part in a massive third house of Congress where they can interact and participate in the same debates, as senators and House members must do. As a PA voter, even though I do not get to vote on NJ, MD, or VA representatives to Congress, at least I am voting for someone who will participate in the same bodies as those other senators/representatives from other states. In contrast, as a PA voter, I am not voting for anyone that will ever participate, in an official capacity, in the debates in state legislatures outside of PA that have power over whether a Congressional act will survive.

    For my congressional representatives, if I'm annoyed about an outcome and "our" side lost, at least I can complain to him/her and say "well next time can't you work on your colleagues to persuade them to our point of view? Or use better procedural tactics? Etc." And if they don't, then it's my choice to work to vote my representative out of office. With the 2/3 state legislature veto in place, and the same facts (assuming my senators/congresspeople/president are all on "my" side) and something gets vetoed by 2/3 of state legislatures (but not including my state legislature as part of the 2/3), who am I to complain to? Who am I supposed to vote against at the ballot box that will participate, in an official capacity, in the same bodies that the state legislators in other states do?

    I acknowledge that with the advent of the internet, cable news, etc. there is some ability to persuade officeholders not in your geographic area in an unofficial way, but that seems a poor substitute for direct accountability at the ballot box.

    That aside, I agree that exempting treaty ratification votes and executive nominations from such a state legislature veto would be wise -- hadn't even though of exceptions when I typed my first comments.

    I similarly cannot see anyone in American life that would have the stature and long-term vision of a Jefferson or a Hamilton to participate or guide a new constitutional convention. Maybe Richard Lugar of Indiana? I might also float the name of former Justice Stevens or Justice Breyer for such a task, based on their appreciation of the roles of different branches of government (Stevens' defense of necessary checks and balances in various Gitmo decisions, Breyer's emphasis on what he calls "active liberty).

  9. Scott, I guess I mainly have to disagree with the fact that states are only supposed to look out for their specific population. States don't act in a vacuum and increasingly influence other states, the national agenda, and global issues. And states already do work with each other on many issues (huge example is transportation issues). You may not realize it but you are probably affected by more governments you don't vote on than you think, just for a local example I am on campus in Fairfax and subject to a county government that I had no vote in for the majority of the year and every time I go to CVS I am under the Fairfax City government. By the way you are also not voting on the federal judiciary which has ability to veto national policies.

    Overall, I really doubt it would become a third house of Congress. Getting 2/3 of the states to agree would probably not be impossible, but would probably be rather difficult.

    (And daniel usually I only read your blog when the topic catches my attention. Too much school work otherwise.)

  10. Kendra - as a side note you could probably get voting rights in Fairfax if you wanted... there was an issue wtih this in Williamsburg several years back while Scott and I were there and I believe (correct me if I'm wrong Scott) they eventually let students register to vote because they spent the majority of their time in residence there.

    I'm not so sure I agree with you, Kendra, about states looking out for those outside their borders. Yes, they do cooperate with other states on certain things but largely because it's in their own interest. If they had their interests and the interests of their neighbors at heart we would presumably have more interstate cooperation than we do (and the cooperation we do have... like Washington Metro... would run more smoothly than it does). It's a classic externality problem, and I don't think there's any reason to expect state governments to look out for other states because the fact is they aren't incentivized to look out for other states except insofar as it serves their own interests. That's fine - I don't expect Richmond to look out for Maryland. That's not their job and that's not what I pay taxes for. I do want broader cooperation, but that's why I'm a Union-man on one level and a globalist on another. But I don't have expectations of Richmond for that.


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