Overdue realignment

This week Rep. Rob Bishop, R-Utah and Sen. Mike Enzi, R-Wyo., introduced a joint congressional resolution to amend the Constitution so that any federal law or regulation could be repealed by two-thirds of the state legislatures. Utah's Sen. Orrin Hatch and Rep. Jason Chaffetz co-sponsored the resolution.

We endorse this overdue structural realignment of state and federal powers.

When promoting ratification of the Constitution, James Madison, argued that Americans would be freer under a federal system of "two distinct governments," because the "rights of the people" would be secured as state and federal governments checked one another (The Federalist, No. 51).

Madison also allayed concerns about federal encroachment on state powers by noting that federal powers are "few and defined," but state powers are "numerous and indefinite" (The Federalist, No. 45).

The balance between state and federal powers captured in the original Constitution and in Madison's defense, however, has changed. Some of those changes, such as the abolition of slavery in the 13th Amendment, the nationalization of civil rights through the 14th Amendment or the expansion of voting rights in the 15th, 19th and 26th Amendments, have benefited individual freedom.

Nonetheless, the massive increase in federal revenues provided by the 16th Amendment (income taxation), the elimination of a direct state check on federal power through the passage of the 17th Amendment (direct election of senators) and the expansive interpretation of the Commerce Clause by the Supreme Court in the 1930s have dramatically strengthened federal power at the expense of state prerogatives.

Many examples could be used to highlight the encroachments on traditional state police powers through Congress's spending power or through the doctrine of preemption. Consider, however, the following: Although the Constitution only names three federal crimes (counterfeiting, piracy and treason), under its power to regulate interstate commerce, Congress has created more than 3000 federal crimes.

Currently the only way for states to challenge a federal law or regulation — short of calling for an unprecedented constitutional convention — is to seek federal judicial review under constitutional standards.

The Repeal Amendment provides a sensible safety valve for inevitable federal-state tensions. It would allow two-thirds of the states to disapprove federal laws or regulations for policy reasons.