Federalism rekindled? Va. and the curious case of a ‘repeal amendment’

While the heavy lifting in this Wall Street Journal op-ed was done by law Prof. Randy Barnett, it's the co-author, Va. House Speaker Bill Howell, whose position on a “repeal amendment” to the Constitution that's quite interesting. What's the proposal? It goes like this:

In its next session beginning in January, the legislature of Virginia will consider proposing a constitutional “Repeal Amendment.” The Repeal Amendment would give two-thirds of the states the power to repeal any federal law or regulation. Its text is simple:

“Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

It's certainly an interesting proposition that deserves more discussion — though the idea that the Democratic-controlled Senate will approve such a measure is hard to imagine (unless this November's electoral wave scares the bejeebers out of some of the rural members of the Democratic caucus).

But what does it say of Howell that he would endorse such a measure? He's hardly known as a radical, or for that matter, as one who has spent much time discussing or debating constitutional matters. It could be a simple move to keep the grassroots engaged and enraged at DC Democrats — at least through the legislative elections in 2011, when some of that anger might manifest itself at the polls.

Howell also can hardly avoid noticing that AG Ken Cuccinelli has earned oceans of press ink, and loads of Fox News airtime, expounding his anti-federal overreach agenda. Ken's becoming a national figure, overshadowing Bob McDonnell, Bill Bolling and Bill Howell, too. Embracing a bit of that agenda and specifically pushing an amendment that takes the means of fighting the feds out of the courts (Cuccinelli's bailiwick) and placing it in the hands of legislators might give Howell the chance to claim a tad more of the spotlight.

There's also a Bob Marshall angle here…could the Speaker be seeking to claim a bit of Bob's mojo in the run-up to the 2012 GOP senatorial contest?  Possibly. Marshall has grassroots bona fides when it comes to fighting the feds and few others in the state’s political class – outside of Cuccinelli – can claim the same. Bundling this energy into one neat package with his name on it might help Howell build similar credibility…and create a fracture within this bloc. Somewhere, George Allen may be smiling.

It could all be genuine, too. If it is, then welcome aboard, Mr. Speaker. No matter what your motives, this is a debate worth having. And kudos to Prof. Barnett, too, for helping set you on the right path.

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