The Case for a Federalism Amendment

[Hazcat]

How the Tea Partiers can make Washington pay attention.

By RANDY E. BARNETT
In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

 
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?

One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax. There is precedent for repealing an amendment. In 1933, the 21st Amendment repealed the 18th Amendment that had empowered Congress to prohibit the sale of alcohol.

Alternatively, to restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment" like this:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.

Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.

Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.

Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.

Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.

Could such a Federalism Amendment actually be adopted? Stranger things have happened -- including the adoption of each of the existing amendments. States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people. And this Federalism Amendment would provide tea-party enthusiasts and other concerned Americans with a concrete and practical proposal by which we can restore our lost Constitution.

Mr. Barnett is a professor of constitutional law at Georgetown University and the author of "Restoring the Lost Constitution: The Presumption of Liberty" (Princeton, 2005).

http://online.wsj.com/article/SB124044199838345461.html

[PegLeg45]

Interesting angle....kind of like holding a gun on someone while they have a noose in their hands.

Basically telling DC "You do it or we'll do it for you....and if you wait 'til we do it, you won't like it very much".

[twyacht]

quote from article,...

But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.


Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

Instead of some sort of 2nd Civil War between the states, lets have a States Revolution against the Federal Gov't.

Shake them up from the states. Remind the Feds, we are United States, not BHO's country, apologizing, and shaking hands with Hugo Chavez...

We have to make exceptions for Kalifornia, Mass, New York, New Jersey, and others, but a 2/3 is possible.....

Plus, I love this quote:
"If someone is so fearful that, that they're going to start using their weapons to protect their rights, it makes me very nervous that these people have these weapons at all."
Rep. Henry Waxman (D-CA)

Let Waxman get some Depends Undergarments.....

[Pathfinder]

The pendulum can swing both ways, we could end up with a lot of crackpot amendments too - legalizing abortion as a Constitutional right, gay marriages, and the like. One would hope they would never garner the 3/4 votes, but these days, who knows?

Beware what you wish for . . .

[tt11758]

The pendulum can swing both ways, we could end up with a lot of crackpot amendments too - legalizing abortion as a Constitutional right, gay marriages, and the like. One would hope they would never garner the 3/4 votes, but these days, who knows?

Beware what you wish for . . .

I agree with what you're saying, but your examples have already come to pass.  Legalized abortion is already a Constitutional right, as the Constitution was interpreted by the SCOTUS.  In my state and a couple of others, the state Supreme Court has ruled that gay marriage is a Constitutional right.  My greatest fear is that the masses of sheeple might get an AWB pushed through as a Constitutional ammendment.  (For the children, of course) 

[Sponsor]

[Timothy]

I agree with what you're saying, but your examples have already come to pass.  Legalized abortion is already a Constitutional right, as the Constitution was interpreted by the SCOTUS.  In my state and a couple of others, the state Supreme Court has ruled that gay marriage is a Constitutional right.  My greatest fear is that the masses of sheeple might get an AWB pushed through as a Constitutional ammendment.  (For the children, of course) 

That's why the Founding Fathers made it difficult to ammend....


The United States
Article Five of the United States Constitution describes the process whereby the Constitution may be altered. Such amendments may be proposed by the United States Congress or by a national convention assembled at the request of the legislatures of at least two-thirds of the states. The method of proposal by national convention has been attempted twice, but never succeeded. The method of proposal by Congress requires a supermajority of two-thirds of both houses; this means two-thirds of those members voting in each house—assuming that a quorum exists when the vote is cast—and not necessarily two-thirds of the entire membership. Amendment proposals generally contain a deadline before which the ratification by states must be completed, but the legal status of such a deadline remains unsettled. To become valid, an amendment must then be ratified by three-fourths of the states, that is, by 38 states, either by their legislatures or by ratifying conventions. States choosing the convention method usually hold elections specifically for the purpose of choosing delegates to the convention. Once certified by the Archivist of the United States, the amendment takes effect according to its provisions and the other rules of the constitution.

[garand4life]

The pendulum can swing both ways, we could end up with a lot of crackpot amendments too - legalizing abortion as a Constitutional right, gay marriages, and the like. One would hope they would never garner the 3/4 votes, but these days, who knows?

Beware what you wish for . . .

In nearly every state including California the people have spoken that they don't want gay marriage in their state, only the cook leftist marxist wannabe fascists keep saying its the will of the people. I think the ballot box not the cooks media is a better gauge for America's pulse.