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Question by Clay Cooper. Uploaded on December 19, 2012
Do you have any idea at all what that act was, or how it could even conceivably be possible for Congress to pass a law that could not later be repealed?
I am guessing at this, but I suppose that a law restating some provision of the constitution (which would be superfluous), could not be repealed because Congress cannot repeal the constitution.
On the other hand, Congress could repeal it, but the Supreme Court could then declare that the repeal was unconstitutional.
So it's really not accurate to say the law in question cannot be repealed.
Wrong! Constitution can only be changed or repealed by amendment or constitution convention. Congress could draft a proposed amendment to repeal the Constitution but it still have to be passed by the legislatures of 3/5 of the states within a specific time frame. Fat chance of that happening. My memory fails me on how a constitution convention can be called. I do know that there is only once when that was actually a threat. Instead, Congress finally stepped up to the plate and passed a proposed amendment to repeal prohibition which then glided through the state legislatures with lightning speed. A federal constitutional convention could open a real pandora's box and I think everyone acknowledges that. Way too unpredictable. Many of the states, including Montana, went through the constitution convention craze of the 1970s. What a mess! Correction, what an expensive mess. Took forever to get the job done, meanwhile the delegates were on the payroll (working as slowly as possible, of course). And then the finished product was usually so screwed up and unworkable it took many more years to get it straightened out.
I was wrong: 3/4 of the state legislatures must ratify a constitution amendment. The proposed amendment has to pass 2/3 of both House and Senate first. It is proposed as a joint resolution. The President is not part of the process at any level. He/she has no authority to approve or veto a proposed amendment. Except for initiating impeachment, I think this may be the only instance where Congress can actually do something without presidential approval. Declaring war might be another exception. Presidents have always asked Congress to declare war but I'm not sure if Congress can't do that on their own initiative. A constitution convention can be convened if 2/3 of the state legislatures call for one.
The Militia Act of 1903 (a.k.a. D*ck Act) clarified the federal government's supervisory role in maintaining and calling up the National Guard. During the Civil Rights era, for example, several state governors in the south attempted to use National Guard units to block students from attending federally desegregated schools. The President simply used the authority given him under the Militia Act to call up the units and put them under federal control. I fail to see how this act has anything to do with amendments to the federal constitution, including the 2nd Amendment.
I think the focus of this discussion is about whether a LAW can be repealed, not constitutional amendments.
You're right, 99, and there is no way that Congress can pass a law that can't be undone. It's just not possible. In looking around the more unsavory corners of the internet, I have come across a lot more nonsense about the act in question. There is an often quoted write up about it that is just completely wrong, and obviously written by someone who doesn't understand the words he is using. Apparently, that nonsense is what started this topic. It's even worse than the folks who still think Obama isn't a citizen.
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