In their recent Slate article entitled “Repealing Common Sense: Destroying the Constitution in Order to Save It,” Dahlia Lithwick and Jeff Shesol argue that Randy Barnett’s proposed “Repeal Amendment” that would allow two-thirds of the states to vote to overturn any piece of federal legislation would not only damage the constitution, but would also be contrary to the conservative tradition of not altering it. The authors find it hard to explain, “from a historical perspective” why conservatives are attacking the division of power between the states and the federal government, which is a cornerstone of the Constitution. Their difficulty with understanding how history led to this point in conservative politics may come from (1) failing defining conservative in some manner that allows for a consistent understanding of who meets the criteria and (2) looking at how the balance of power between states and the federal government has changed over time.
The argument that conservatives are hypocritical for wanting to amend the Constitution seems to only work if you define conservatives as “people who are against amending the constitution.” For an example of such a conservative, the authors look to William Howard Taft. This move might strike some history buffs as odd, as Taft’s policies (which included strengthening agencies’ ability to regulate interstate commerce, taxing corporations, and using economic tools in foreign policy to avoid military engagement) would look right at home on a modern-day Democratic Party pamphlet. A lay person, reading Lithwick’s argument that Taft = typical conservative = allergic to constitutional “tinkering” might be surprised to learn that he spearheaded the passage of the 16th Amendment. The authors also point to the Reconstruction Amendments as examples of constitutional changes hated by conservatives, even though they were passed by Republicans. This is not to say that “Republican” is synonymous with “conservative,” but I would say that the relationship between conservative politics and amending the Constitution is more complicated than the authors make it out to be.
So the idea the authors present of conservatism is a little muddled, but what of their claim that the amendment would alter the historically tried and true division of power between states and the federal government? The division of power between states and the federal government has not been static from the founding. The Civil War and Reconstruction Amendments, the Seventeenth Amendment and the New Deal all radically increasing federal power over state power. An amendment that would increase the power of state governments relative to the federal government would not be changing the balance of power put in place at the founding, it would be shifting us closer to that original model.
Contributed by Molly Wallace '10.