Eric Cantor by Public Domain / Wikimedia Commons
Incoming House Majority Leader, Eric Cantor, wants the "Patient Protection and Affordable Care Act" (H.R. 3590) repealed. It will not be easy. In fact, it will be almost impossible using conventional means. So, what is Mr. Cantor planning to do to get around that little "almost impossible" problem? He, and his fellow Republicans, plan to amend the Constitution.
Here's the current wording of the proposed 28th Amendment to the Constitution:
The Repeal Amendment:
Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed."
Notice that there is no differentiation between "statutory" and "case" law. Notice that there is no exclusion of case law. Notice the broad, non-specificity of the "any provision of law or regulation" terminology. Notice the broad non-specificity of the "particularly describe the same provision or provisions of law or regulation" terminology.
Wow, the title that they gave it, doesn't seem to match those words. The title makes it sound like it's an amendment that would allow the States to repeal an existing Amendment. But, the words of the Amendment makes it sound like "two-thirds of the several states" can pretty much repeal anything in existing Federal Law, both statutory, and case.
Roe v Wade is established case law. Does that not qualify as a "provision of law"? I see nothing in that language that would prohibit "two-thirds of the several states" from getting together and deciding to repeal Roe v Wade. That is an incredibly immense "power" that Mr. Cantor wants to hand to the States. It is also, in my humble opinion, unconstitutional.
Before I explain why, here's what Mr. Cantor and his fellow Republicans, are so frustrated about. They are "Tenthers."
The 10th Amendment:
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
Why are Tenthers so frustrated? Over the years, the 10th Amendment has proven itself to be the joke that it was. Madison, under pressure, conceded to the States' demand for the 10th Amendment. Why did he, and the other Founders, allow for that concession? They believed, mistakenly, that the Constitution's "purpose" would trump the "several states" attempt to "rule" their individual kingdoms.
It was a terrible miscalculation. Hundreds of thousands of black humans suffered the indignities of slavery for 89 years. More than six hundred thousand Americans died, at the hands of their fellow citizens, when the Union split in half and battled over that mistake.
But we're stuck with it (the Tenth Amendment). It's a Catch-22. It would take the States, to take power away from the States. Pull the other leg. It was the worst mistake in Americas "founding" history. Period.
Further frustrating Mr. Cantor, and the Republicans, is Article 1. Section 8. They absolutely hate that Madison put the General Welfare clause in the Constitution.
Article 1. Section 8.