Friday, December 10, 2010

Jack Conway Gets Mail

Virginia Attorney General Kenneth Cuccinelli has written to the Attorneys General of the other states, requesting their help on the "Repeal Amendment."

The Repeal Amendment would amend the U.S. Constitution. It is an attempt by self-described modern-day Federalists to restored limited government.

According to Cuccinelli's letter, the text of the amendment provides:

"Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulations to be repealed."\

Cuccinelli says that he has ten of the 38 states needed to amend the U.S. Constitution. He asks state Attorneys General who will sign on to the plan to join him in a press conference December 15.

Randy Barnett explains how the amendment would work:

At present, the only way for states to contest a federal law or regulation is to bring a constitutional challenge in federal court or seek an amendment to the Constitution. A state repeal power provides a targeted way to reverse particular congressional acts and administrative regulations without relying on federal judges or permanently amending the text of the Constitution to correct a specific abuse.

The Repeal Amendment should not be confused with the power to "nullify" unconstitutional laws possessed by federal courts. Unlike nullification, a repeal power allows two-thirds of the states to reject a federal law for policy reasons that are irrelevant to constitutional concerns. In this sense, a state repeal power is more like the president's veto power.

This amendment reflects confidence in the collective wisdom of the men and women from diverse backgrounds, and elected by diverse constituencies, who comprise the modern legislatures of two-thirds of the states. Put another way, it allows thousands of democratically elected representatives outside the Beltway to check the will of 535 elected representatives in Washington, D.C.

Congress could re-enact a repealed measure if it really feels that two-thirds of state legislatures are out of touch with popular entiment. And congressional re-enactment would require merely a simple majority. In effect, with repeal power the states could force Congress to take a second look at a controversial law.

Cuccinelli is the same Attorney General who brought the suit challenging the constitutionality of Obamacare -- which Jack Conway refused to join.

I'm betting Jack won't sign on to Cuccinelli's Repeal Amendment, either. No one has ever accused Jack Conway of being a Modern Federalist.

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