Posted by Randy Barnett:
Bill of Federalism 2.0:
http://volokh.com/archives/archive_2009_05_17-2009_05_23.shtml#1242915304
After the voluminous response to [1]my Wall Street Journal article
calling for a Federalism Amendment, I began working on a Bill of
Federalism consisting of ten amendments to restore a balance between
state and federal power, as well as important aspects of the original
meaning of the Constitution. I posted the initial draft of these
amendments to elicit comments on [2]FederalismAmendment.com Having
read the hundreds of comments and suggestions, I have now published a
significantly revised version of the Bill of Federalism, along with an
explanation of each provision, on [3]Forbes.com. Here is the
introduction to the proposals:
Lately some state legislatures have been considering so-called
"sovereignty resolutions." Rather than pass strictly symbolic
measures, however, I recommended--in an op-ed last month in The
Wall Street Journal--that state legislatures exercise the power
given them under Article V of the Constitution to petition Congress
to call a convention to propose a "Federalism Amendment."
This idea clearly touched a chord among the public and elicited an
outpouring of comments and suggestions, including here on Forbes.
While many liked my original proposal, others wanted to see added
provisions for balanced budgets, term limits and other constraints
on federal power.
With this feedback in mind, I decided to draft a Bill of Federalism
consisting of 10 amendments devised to restore the balance between
state and federal power as well as the original meaning of the
Constitution. By identifying 10 separate amendments, a coalition
can be formed from people who support different constitutional
reform measures that could not be combined into a single amendment.
At the same time, opposition to any one provision cannot be used to
sink the whole proposal.
The preamble makes explicit why such amendments are sorely needed
and specifies that delegates are to be selected by procedures
chosen by their state legislatures. The proposed amendments that
follow are primarily designed to reverse Supreme Court rulings that
have improperly expanded federal power.
At the same time, the Bill of Federalism was designed to ensure
that current constitutional protections of civil rights would be
preserved and strengthened.
Some fear that any amendments convention might exceed the limited
purpose for which it was called. Under the Constitution, however,
any amendments proposed by a convention would still need to obtain
the approval of three-quarters of all the states.
And historically no convention has ever been convened because
Congress, fearing a convention, itself proposed the particular
amendments requested by the states before two-thirds of states had
applied for a convention.
When the Equal Rights Amendment came close to final approval by the
states, the Supreme Court rendered the ERA unnecessary by modifying
the Court's treatment of sex discrimination. I fully expect that,
should even a handful of states approve this proposal and submit it
to Congress and to other states, it will markedly affect the terms
of political debate.
It will become the rallying cry of Tea Parties and other citizen
groups across the nation and, like the Contract with America, can
provide an organizing document for candidates seeking state and
federal office. Candidates to state legislatures can campaign on
proposing it to Congress, and candidates for Congress can campaign
on proposing it for approval by the states.
And I fully expect that the Supreme Court would try to forestall
its adoption by moving toward the original meaning of the
Constitution, which it is always free to do. After all, even
without a Bill of Federalism, the federalism embodied in the
written Constitution is still the Supreme Law of the Land.
You can read the entire proposal and explanation (as well as post
comments) [4]here.
PS: I was on the Glenn Beck show last night with guest host Andrew
Napolitano discussing the Bill of Federalism and other issues. So far,
I cannot find it on YouTube, but if I do, I will post it here.
References
1.
http://online.wsj.com/article_email/SB124044199838345461-lMyQjAxMDI5NDIwMzQyNDMxWj.html
2. http://www.federalismamendment.com/
3.
http://www.forbes.com/2009/05/20/bill-of-federalism-constitution-states-supreme-court-opinions-contributors-randy-barnett.html
4.
http://www.forbes.com/2009/05/20/bill-of-federalism-constitution-states-supreme-court-opinions-contributors-randy-barnett.html
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