TexasCHLforum.com

I think it's time to assert our authority as citizens and press the states' legislatures to propose a constitutional amendment. I recommend the following as a good place to start by affording the people and the states another form of checks and balance over the federal government.

Federal Legal Article Repeal Amendment:
 
Section 1:  Any federal legal article (law, executive order, regulation, treaty, or any judicial decision which effectively applies to all of the states) may be repealed by national referendum during a biennial election. This may be accomplished by either two-thirds of the overall national popular vote or simple majorities in the votes from three-fourths of the states. To place a federal legal article on the ballot for repeal requires concurrence by a majority of the states' legislatures or sixty percent of the governors. Elected or appointed officials may not create federal legal articles prohibiting or otherwise impeding state officials from proposing or approving items for repeal.
 
Section 2:  Any enforcement of a repealed federal legal article shall be voided immediately and retroactively.
 
Section 3: New or replacement bills containing any aspect of a repealed law require sixty percent passage by both chambers of Congress if proposed within three years of the original law's repeal. New or replacement executive orders containing any aspect of a repealed order may not be put in effect until after the next presidential election.  Repealed regulations may only be reinstated by subsequent legislation requiring sixty percent passage by both chambers of Congress. Repealed treaties may not be reintroduced if the president who originally signed the treaty is still in office.
 
Section 4:  Only entire federal legal articles may be repealed by referendum.  Federal legal articles may not be created or modified via referendum. The legislative or executive shall have no power to enforce, by legislation, executive order, or regulation the provisions of this Amendment and this Amendment can only be redressed by subsequent amendment to this Constitution.  The judiciary may not block or impede any provision of this amendment.

I don't like it, and here's why. It institutes a democratic check on our republican form of government. As much as it is popular to think that the will of the people should reign supreme, the Federalist Papers give ample reason to reject such a system. Minorities should not be subjected to the passions of the majority, and that is precisely what this proposal would do.

The solution to America's problems lies in educating the citizen not in legislating against bad political behavior.

I appreciate your comments. Such feedback affords us preparation to counter future arguments.

Based on your response, it seems you're talking about direct democracy which is what Federalist Nos. 9 and 10 warned against. Given this proposal requires two-phased passage and a much higher threshold than 51%, it could hardly be considered instituting a direct democracy. To quell such claims, I intentionally made repeal via referendum very difficult to accomplish so it would have to be something both the states and the people really want repealed to be able to meet the high threshold.

Your description of a democratic check on our republican form of government and minorities being subjected to the passions of the majority is not only what we accomplish every biennial election, it's exactly what was instituted with the ratification of the Seventeenth Amendment. If anything, that amendment reduced our power under the Tenth Amendment while my proposal would actually recover some of that authority.

Under this amendment, minorities wouldn't be subjected to anything as no one is subjected to a repealed law. That description would be accurate if the intent was to create law via referendum which I am staunchly opposed. But we currently have little recourse when a law is passed that is highly controversial or its unintended consequences become objectionable to a large percentage of both the states and the citizens. Voting in the right mix and numbers of representatives to fix problems works in theory but rarely in practice. This amendment would provide another tool to use if congress fails to address the problems they create. It also might actually motivate congress to pass laws with broad appeal that aren’t likely to be challenged via referendum. If anything, the purpose of this amendment isn't to start repealing laws en mass, it's to hold our representatives more accountable.

And finally, you're comment about the solution to America's problems may certainly be the desired approach, but I prefer multiple options when a given approach does not achieve the desired results.

I think your heart is in the right place but the execution is all wrong. From a simpleton's standpoint ( me being a simpleton) you suggest proposing more legislation to solve the problem of excessive legislation. If you ask me as a society we need to get back to the constitution and stop making laws to the contrary, especially with the 2nd Amendment where it expressly states ... shall not be infringed".

smtimelevi wrote:I think your heart is in the right place but the execution is all wrong. From a simpleton's standpoint ( me being a simpleton) you suggest proposing more legislation to solve the problem of excessive legislation. If you ask me as a society we need to get back to the constitution and stop making laws to the contrary, especially with the 2nd Amendment where it expressly states ... shall not be infringed".

It's not legislation, it's an Amendment that gives us the ability to reduce the amount of legislation. Many would contend the federal government has become too large, too burdensome, too expensive, and has long since exceeded its Constitutional authority. Problem is most of us don't have the time or money to challenge laws that probably wouldn't pass constitutional muster. So, Congress and the bureaucrats can put in place pretty much any law or regulation they want with little chance of it being overturned. So what we're left with are potentially unconstitutional laws that further erode our rights but are both legal and enforceable.

This amendment would give us a more direct, cost-effective and expeditious way to undo laws etc., if an overwhelming majority makes that determination. By having this ability, hopefully Congress would be more inclined to better follow the Constitution. I think we can all agree that fewer federal laws and more authority to the states would probably be a good thing.

raccol wrote:I appreciate your comments. Such feedback affords us preparation to counter future arguments.

Based on your response, it seems you're talking about direct democracy which is what Federalist Nos. 9 and 10 warned against. Given this proposal requires two-phased passage and a much higher threshold than 51%, it could hardly be considered instituting a direct democracy. To quell such claims, I intentionally made repeal via referendum very difficult to accomplish so it would have to be something both the states and the people really want repealed to be able to meet the high threshold.

It institutes repeal by a two thirds popular vote. That's a higher standard than 51%, but it's still democratic rule. The repeal of laws is a serious matter and should not be left to public passion. The popular vote portion should be struck, in my opinion.

raccol wrote:Your description of a democratic check on our republican form of government and minorities being subjected to the passions of the majority is not only what we accomplish every biennial election, it's exactly what was instituted with the ratification of the Seventeenth Amendment. If anything, that amendment reduced our power under the Tenth Amendment while my proposal would actually recover some of that authority.

I have long been a proponent of repealing the 17th Amendment. I think that's an appropriate thing to do, because it places power back in the hands of the states and eliminates Senators serving for 50 years. Senators would be subject to recall by referendum as well as replacement by others when the legislature's balance of power changes. New York, for example, might have a Republican Senator if the 17th Amendment didn't exist.

raccol wrote:Under this amendment, minorities wouldn't be subjected to anything as no one is subjected to a repealed law. That description would be accurate if the intent was to create law via referendum which I am staunchly opposed.

You're mistaken. If a minority is opposed to the repeal of a law, they are certainly affected by its repeal. Repealing a law impacts everyone, including those who might benefit from it's implementation.

raccol wrote:But we currently have little recourse when a law is passed that is highly controversial or its unintended consequences become objectionable to a large percentage of both the states and the citizens. Voting in the right mix and numbers of representatives to fix problems works in theory but rarely in practice. This amendment would provide another tool to use if congress fails to address the problems they create. It also might actually motivate congress to pass laws with broad appeal that aren’t likely to be challenged via referendum. If anything, the purpose of this amendment isn't to start repealing laws en mass, it's to hold our representatives more accountable.

And finally, you're comment about the solution to America's problems may certainly be the desired approach, but I prefer multiple options when a given approach does not achieve the desired results.

You have to be very careful not to create a cure that's worse than the disease. Amending the Constitution is a serious matter and should not be taken lightly.

The that I see with problem with your proposal is that it does make possible the oppression of the minority by the majority. Your answer about not subjecting minorities to anything misses that the law repeal may be a law protecting minority rights.

For example, suppose the first law put on a ballot under your proposal is the Civil rights Act of 1964. Now suppose that the repeal effort wins. By not allowing the enforcement of laws against prejudice, we then allow minorities to be subjected to oppression again. Consider the interesting court case now progressing in California. The citizens passed a constitutional amendment removing a constitutional right for gay marriage recognized by the courts and legislature. A lawsuit against the amendment was filed arguing that you cannot remove a right previously recognized by changing the Constitution to deny it. Courts ruled that it was against the federal constitution. SCOTUS is expected to rule on it in June. Your proposal might work along these lines.

I like the concept of states negating federal laws, at least up to a point, but I am concerned if this is really needed or not. I am also somewhat concerned with the implementation. I am not convinced yet that this is a solvable problem at all.

It appears the part about repeals having to get through the states first was missed. I realize the sentiments of the people can swing drastically and quickly, but that would be tempered by having to get through the states first. The framers realized this too that's why the House represents the people, but the Senate is supposed to represent the states to temper those changing sentiments. This proposal follows a similar principle.

I don't see laws like the voting rights act stirring emotions like some others and repeal of such laws would probably never make it through the states. Even if it did, Congress still has a remedy after a repeal. Hopefully they'd be smart enough to exclude the portions that prompted the repeal in the first place. Maybe I'm not seeing it, but I believe very few laws would ever be repealed. Getting through the states alone is a daunting enough challenge.

Those in the minority who didn't vote for Obama are still subjected to his misguided whims. The same argument applies even more so to the minority opposing passage of law. These laws affect everybody, including those who might be adversely affected by their implementation. Even when the majority opposes a law, they're often ignored and the politicians pass it anyway. Obamacare was opposed by 60-70% of the citizens but they were ignored because out elitist political class know better than any of us. Repeal of laws would often have a neutral affect, but bad law always has an adverse affect. Even worse, implementing laws that are unconstitutional affects everyone adversely, even those who are too naive to realize it.

I, just as much as anyone on this board, am well aware of the seriousness of amending the constitution. Thankfully the framers intentionally make it a difficult process. But I'm just as aware that we a quickly approaching a post-constituional country if we can't reign in a federal gov't that continually ignores its constitutional limitations. I guess some a either too indifferent or complacent about the federal gov't running roughshod over the Constitution.

This proposal may not be the best solution but I've yet to see anything proposed that comes any closer to addressing these issues. If some are so quick to say what won't work, they must have an idea of what will. If so, let's hear it.

raccol wrote:It appears the part about repeals having to get through the states first was missed. I realize the sentiments of the people can swing drastically and quickly, but that would be tempered by having to get through the states first. The framers realized this too that's why the House represents the people, but the Senate is supposed to represent the states to temper those changing sentiments. This proposal follows a similar principle.

I don't think so.

Section 1: Any federal legal article (law, executive order, regulation, treaty, or any judicial decision which effectively applies to all of the states) may be repealed by national referendum during a biennial election. This may be accomplished by either two-thirds of the overall national popular vote or simple majorities in the votes from three-fourths of the states.

That does not go through the states.

Seriously? Did you read the entire post or just get hung up on the part you didn't like?

To place a federal legal article on the ballot for repeal requires concurrence by a majority of the states' legislatures or sixty percent of the governors.

It has to get through the states first. Clearly stated in section one. I wrote it, I know what it says. Whether or not it's stated clearly enough is another issue.

I think it would help if the wording was rearranged like this:

Section 1: Any federal legal article may be placed on the ballot for repeal if it receives concurrence by a majority of the states' legislatures or sixty percent of the governors. Any federal legal article (law, executive order, regulation, treaty, or any judicial decision which effectively applies to all of the states) may be repealed by national referendum during a biennial election. This may be accomplished by either two-thirds of the overall national popular vote or simple majorities in the votes from three-fourths of the states. Elected or appointed officials may not create federal legal articles prohibiting or otherwise impeding state officials from proposing or approving items for repeal.

For articles to be voted on, they must first be placed on the ballot. Rearranging the wording like this places the sequence of events that must occur in their proper order and ensures that the reader isn't forced to mentally rearrange them to understand its intent.