On Nov. 30, Republican Rep. Bob Bishop of Utah introduced a “Repeal Amendment” in Congress. The amendment is the brainchild of Randy Barnett, a professor at Georgetown University Law Center who specializes in the Ninth and 10th amendments. He and William J. Howell, the speaker of the Virginia House of Delegates, published “The Case for a ‘Repeal Amendment’” in the Sept. 16, 2010, issue (the eve of the anniversary of the signing of the U.S. Constitution) of the Wall Street Journal. The proposed amendment provides that “Any provision of law or regulation of the United States may be repealed by the several states, and such repeal shall be effective when the legislatures of two-thirds of the several states approve resolutions for this purpose that particularly describe the same provision or provisions of law or regulation to be repealed.”

Since the first Congress in 1789, members have introduced more than 11,500 amendments. However, because the framers intended for the Constitution to be fundamental law, the amending provisions in Article V require two-thirds majorities of both houses of Congress (or a convention requested by two-thirds of the states) to propose such amendments and three-fourths of the states to ratify them. To date, Congress has only proposed 33 amendments by the necessary majorities, and states have ratified only 27. The problems and questions surrounding the proposed Repeal Amendment show the virtues of such high obstacles.

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