Posted by Randy Barnett:
The Bill of Federalism:
http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241451864
I received a deluge of feedback on my WSJ column, [1]The Case for a
Federalism Amendment. The overwhelming response was positive--indeed
enthusiastic--but some took issue with aspects of my proposal with
well founded objections. Many also had their own favorite provisions
they wanted to see included. And there were also objections to the
wisdom of the entire project of seeking constitutional changes through
the states.
This feedback caused me to reconsider (a) the substance of some
aspects of my proposal, (b) whether it might not be a better idea to
disaggregate it into constituent parts while (c) adding provisions
favored by others.
The result is a tentative draft of a Bill of Federalism with 10
amendments, along with a Preamble and explanation of each provision. I
discuss the strategy behind this initiative and proposal on PJTV
[2]here. In particular, I address objections to asking states to
petition for a convention to propose constitutional amendments, and
the advantages of a Bill of Federalism over a single amendment with
multiple interrelated parts.
A website has been created to collect comments, some of which are very
useful. I intend to rewrite the proposal soon, and make substantial
revisions to it. If you want to provide your comments, you can do so
[3]here. (Comments are moderated so there will be a delay in their
posting.) I encourage anyone with comments or objections to post them
on [4]FederalismAmendment.com, where others can read them too. What
follows are the first draft of the amendments with my explanations in
hidden text.
Let me stress once again that THIS PROPOSAL WILL CHANGE SUBSTANTIALLY.
Some provisions will be deleted, combined, or altered, and others
added.
Resolution for Congress to Convene a Convention to Propose
Amendments Constituting a Bill of Federalism
Whereas Article I of the Constitution of the United States begins
�All legislative powers herein granted shall be vested in a
Congress of the United States�; and
Whereas the Congress of the United States has exceeded the
legislative powers granted in the Constitution thereby usurping the
powers that are �reserved to the states respectively, or to the
people� as the Tenth Amendment affirms; and
Whereas the Supreme Court of the United States has ignored the
meaning of the Constitution by upholding this usurpation of the
powers of the several states and of the people;
To restore a proper balance between the powers of Congress and
those of the several States, and to prevent the denial or
disparagement of the rights retained by the people to which the
Ninth Amendment refers, the legislature of the State of ________
hereby resolves that:
Congress shall call a convention to propose the following articles
be added as separate amendments to the Constitution of the United
States, each of which shall be valid to all intents and purposes as
part of the Constitution when separately ratified by the
legislatures of three-fourths of the several States:
[The Bill of Federalism]
Article [of Amendment 1] � [Limits of Federal Power]
Congress shall make no law nor delegate any authority, pursuant to
its powers in the eighth section of article I, respecting any
activity confined within a single state, regardless of its effects
outside the state or whether it employs instrumentalities
therefrom; but Congress has power to reasonably regulate pollution
between one state and another, and to define and provide for
punishment of offenses constituting acts of war or violent
insurrection against the United States.
([5]show)
Comment on 1: As Congress has exercised powers beyond those delegated
to it by the Constitution, the powers of states that were reserved by
the enumeration of delegated powers have been usurped. The first
proposed amendment restricts the power of Congress to prohibit or
regulate wholly intrastate activity under the powers enumerated in
Article I, Section 8, thereby leaving wholly intrastate activities to
be prohibited or regulated by the several states, or be left
completely free of any regulations as states may choose. And it
negates two constructions adopted by the Supreme Court to expand the
reach of Congress under the Necessary and Proper Clause�sometimes
called the �Sweeping Clause��of Article I: that Congress has power to
regulate wholly interstate activity that either (a) �affects�
interstate activity or (b) uses instrumentalities obtained from
outside the state. Lest this restriction on federal power create any
doubt, this amendment makes clear that Congress retains the power to
regulate interstate pollution and the power to define and punish acts
of war and insurrection against the United States, for example, the
possession of weapons of mass destruction. This provision leaves
untouched the delegated powers of Congress to regulate wholly
intrastate activities to enforce civil rights as expressly authorized
by, for example, the Thirteenth, Fourteenth, Fifteenth and Nineteenth
Amendments; it only restricts the improper construction of the powers
enumerated in Article I, section 8 to reach wholly intrastate
activity.
([6]hide)
Article [of Amendment 2] � [Unfunded Mandates and Conditions on
Spending]
The legislative power shall not be construed to allow Congress to
impose upon a State, or political subdivision thereof, an
obligation or duty to make expenditures unless such expenditures
shall be fully reimbursed by the United States; nor shall the
legislative power be construed to allow Congress to place any
condition on the expenditure or receipt of appropriated funds
unless the requirement imposed by the condition would be within its
power if enacted as a regulation.
([7]show)
Comment on 2: The second proposed amendment addresses two sources of
persistent federal overreaching. The first is federal laws mandating
state action necessitating the expenditure of state funds without
reimbursing the states for their expenditures. In this manner, the
federal government can take credit for adopting measures without
incurring the political cost of increasing taxes or borrowing. The
second problem addresses is the use of federal spending to accomplish
objects not delegated to the United States. For example, the 55 mph
speed limit was imposed by the states by conditioning the receipt of
federal highway funds upon compliance with this mandate. This
amendment makes this type of condition on funding unconstitutional by
requiring that any condition placed on the receipt of federal money be
within the power of Congress to enact as a standalone regulation, such
as the power of Congress to enforce civil rights that is delegated to
it by Section 5 of the Fourteenth Amendment.
([8]hide)
Article [of Amendment 3] � [Reserved Powers of States]
Subject to the requirements of Article VI, every state has the
power to regulate or prohibit any activity that takes place within
its borders, provided that no state regulation or prohibition shall
infringe any enumerated or unenumerated right, liberty, privilege
or immunity recognized by this Constitution.
([9]show)
Comment on 3: Since the Founding, states have been thought to have
what is called a �police power,� but this power is not expressly
enumerated in the text of the Constitution. The third proposed
amendment explicitly recognizes the power of state government to
regulate and prohibit activities within their borders. As specified in
the Supremacy Clause of Article VI, no exercise of state power may
conflict with any law enacted by Congress pursuant to its delegated
powers or with any enumerated or unenumerated right guaranteed by the
Constitution. At the same time it expressly protects the powers of
states, it also recognizes the limitations imposed by the Constitution
on those powers.
([10]hide)
Article [of Amendment 4] � [Recision Power of States]
Upon application of the legislatures of two thirds of the states,
any law, regulation or order of the United States shall be
rescinded.
([11]show)
Comment on 4: At present, the only way for states to contest a federal
law, regulation or order is to seek an amendment of the Constitution
by applying for a constitutional convention to propose amendments that
would must then be ratified by three-quarters of the states. This
proposed amendment provides an additional check on federal power by
empowering the states to rescind any law, regulation or order when two
thirds of state legislatures concur this is necessary. Such a power
provides a targeted method to reverse particular Congressional acts,
administrative regulations, and executive and judicial orders without
permanently amending the text of the Constitution.
([12]hide)
Article [of Amendment 5] � [No Federal Death Tax]
Congress shall have no power to lay and collect taxes upon personal
gifts or estates.
([13]show)
Comment on 5: The fifth proposed amendment forbids Congress from
maintaining a tax on estates, sometimes referred to as the �death
tax,� or on gifts made during one�s lifetime. Among the many benefits
of this provision is to allow businesses and farms to continue to
remain in a family by avoiding the need to liquidate the business to
raise funds to pay the estate tax.
([14]hide)
Article [of Amendment 6] � [No Federal Income Tax]
The sixteenth article of amendment to the Constitution of the
United States is hereby repealed, and Congress shall have no power
to lay and collect taxes upon personal incomes, consumption or
expenditures, but nothing in the Constitution shall be construed to
deny Congress the power to lay and collect an excise or sales tax
that is uniform throughout the United States. This article shall be
effective five years from the date of its ratification.
([15]show)
Comment on 6: The sixth proposed amendment ends the power of Congress
to enact a personal income tax, or to allow circumvention of this
restriction by means of a consumption or expenditure tax. Lest the
prohibition on a consumption tax raises any doubt, the provision makes
clear that Congress retains the power to impose an �excise� or sales
tax that is �uniform� throughout the United States. Sometimes called a
�fair tax,� a national sales tax would be paid by all persons residing
in the United States, whether legally or illegally, without the need
for intrusive reporting of their activities. As people buy and consume
more, they would pay more taxes, but all their savings and investments
would appreciate free of tax. To give Congress ample time to fashion
an alternative revenue system, the implementation of this amendment is
delayed for five years. Of course, Congress may end the income tax
sooner if it so chooses.
([16]hide)
Article [of Amendment 7] � [Term Limits for U.S. Senators and
Representatives]
Section 1. No person who has been elected or served for a full term
to the Senate two times shall be eligible for election or
appointment to the Senate. No person who has been elected for a
full term to the House of Representatives six times shall be
eligible for election to the House of Representatives.
Section 2. No person who has served as a Senator for more than
three years of a term to which some other person was elected or
appointed shall subsequently be eligible for election to the Senate
more than once. No person who has served as a Representative for
more than one year shall subsequently be eligible for election to
the House of Representatives more than five times.
Section 3. No election or service occurring before this article
becomes operative shall be taken into account when determining
eligibility for election under this article.
([17]show)
Comment on 7: The seventh proposed amendment establishes twelve year
term limits for Senators and Representatives. In 1995, this proposal
was introduced in Congress and was approved by the House by a vote of
227-204, short of the two-thirds necessary to propose such an
amendment to the states. It phases in these limits by exempting the
time already served by incumbent Senators and Representatives to be
included in the calculation of the limits on their terms.
([18]hide)
Article [of Amendment 8] � [Balanced Budget Veto]
Section 1. For purposes of this article, the budget of the United
States for any given fiscal year shall be deemed unbalanced
whenever the total amount of the debt of the United States held by
the public at the close of such fiscal year is greater than the
total amount of the debt of the United States held by the public at
the close of the preceding fiscal year.
Section 2. If the budget of the United States is unbalanced for any
given fiscal year, the President may separately approve, reduce or
disapprove any monetary amounts in any legislation that
appropriates or authorizes the appropriation of any money drawn
from the Treasury, other than money for the operation of the
Congress and judiciary of the United States, and which is presented
to the President during the next annual session of Congress.
Section 3. Any legislation that the President approves with changes
pursuant to section 2 of this article shall become law as modified.
The President shall return with objections those portions of the
legislation containing reduced or disapproved monetary amounts to
the House where such legislation originated, which may then, in the
manner prescribed under section 7 of Article I for bills
disapproved by the President, separately reconsider those reduced
or disapproved monetary amounts.
Section 4. The Congress shall have the power to implement this
article by appropriate legislation.
Section 5. This article shall take effect on the first day of the
next annual session of Congress following its ratification.
([19]show)
Comment on 8: Many Americans have long desired both a balance budget
amendment and a presidential line item veto. The Problems With
Balanced Budget Amendments: Balance budget mechanisms that have been
devised to date present three serious problems: They are highly
complex, they typically contain numerous exceptions and loop-holes,
and they lack effective means of enforcement. The Need for a Line Item
Veto: The practice by Congress of aggregating thousands of lines of
expenditures into �omnibus� appropriation bills has greatly diminished
the veto power that the Constitution reposes in the President. Because
of their reluctance to threaten a government shut down, Presidents are
loath to veto such bills. Knowing this, Senators and Representatives
can load spending bills with pork, knowing that Congress will never
have to give an up or down floor vote to a particular line item and
that the threat of a presidential veto is empty. By linking the goal
of a balanced budget with a temporary presidential line-item veto, the
eighth proposed amendment provides a real incentive for Congress to
devise a balance budget; if Congress fails to do so, the President
would then have a temporary line item veto power over any
appropriation in the budget. For example, should Congress enact a
budget with a deficit, the President could veto Congressional earmarks
and be held accountable for failing to do so. The amendment also
ensures that Congress will retain the same power to override any
presidential line item veto as it currently has for a traditional
veto. The operation and advantages of this measure over other balance
budget amendments is explained in detail [20]here.
([21]hide)
Article [of Amendment 9] � [Protecting the Rights Retained by the
People]
The rights of citizens of the United States include all the
enumerated and unenumerated liberties, and privileges recognized by
this Constitution. Nothing in this constitution shall be construed
to create any conclusive or irrebuttable presumption that a law,
regulation, or order of the United States or of a State does not
infringe such rights. In any case or controversy in which an
abridgment of such rights is alleged, no party shall be denied the
opportunity to introduce evidence or otherwise show that a law,
regulation or order is an unreasonable restriction on such rights
and therefore is unconstitutional.
([22]show)
Comment on 9: The existing Ninth Amendment says that �The enumeration
in the Constitution of certain rights shall not be construed to deny
or disparage others retained by the people.� Since the 1950s, however,
the Supreme Court has adopted a construction by which any restriction
of what it calls the �liberty interests� of the people is upheld as
constitutional unless the Court deems a particular liberty interest to
be a �fundamental right.� In this way, it has foreclosed any citizen
from presenting proof that a restriction on a liberty not deemed to be
fundamental is unreasonable. Because enumerated rights such as the
freedom of speech are typically considered fundamental and protected,
while the unenumerated rights to which the Ninth Amendment refers are
deemed unprotected �liberty interests,� the practical result of this
is the denial and disparagement of the rights retained by the People
in violation of the rule of construction provided by the Ninth
Amendment. The ninth proposed amendment provides for the equal
protection of all the liberties of the people, whether enumerated or
unenumerated, without empowering judges to define unenumerated rights.
Instead, whenever a person�s liberty is restricted, that person is
allowed to present proof that the restriction is unreasonable and
therefore unconstitutional. This amendment will focus on the
reasonableness of the government�s justification for restricting
liberty rather than on the precise definition of a particular
unenumerated right.
([23]hide)
Article [of Amendment 10] � [No Judicial Alterations of the
Constitution]
The words and phrases of this Constitution shall be interpreted
according to their meaning at the time of their enactment, which
meaning shall remain the same until changed pursuant to Article V.
([24]show)
Comment on 10: The tenth proposed amendment ensures that the text of
the Constitution remains the supreme law of the land by preventing
judges from ignoring or changing the linguistic meaning of the text of
the Constitution by �interpretation.� It requires that judges obey the
text of the Constitution until it is properly changed by a
constitutional amendment. A constitution that is ignored or
systematically misinterpreted is a dead constitution. Only if the
Constitution is actually followed can it accurately be considered as a
�living constitution.�
([25]hide)
References
1.
http://online.wsj.com/article/SB124044199838345461.html#mod=rss_opinion_main
2.
http://www.pjtv.com/video/Tea_Party_Coalition_Show/Nationwide_Tea_Party_Coalition/1785/;jsessionid=abcaGwalsCIK_hKIuPSds
3. http://www.federalismamendment.com/
4. http://www.federalismamendment.com/
5. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
6. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
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19. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
20. http://www.cato.org/pubs/pas/pa-487es.html
21. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
22. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
23. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
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25. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
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