fed·er·al·ism (noun)
1.) A system of government in which power is divided between a central authority and constituent political units.
2.) Advocacy of such a system of government.
Thomas P. Rossiter, Signing of the Constitution, ca. 1860-1870. Courtesy Independence National Historical Park
Randy E. Barnett is a constitutional scholar at Georgetown University Law Center and a legal theorist with a strong Libertarian bent. The following blog is based largely on his April 23, 2009 opinion piece in the Wall Street Journal. In the piece, Randy develops a clear, constitutional case for amending the Constitution in such a way as to re-assert the basis of the Federalist system envisioned by the Founders. If you believe (as I do) that the fedgov has gradually but relentlessly overstepped it's actual constitutional authority, you will find solace in Mr. Barnett's proposal!
He notes that Article V of the Constitution 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. However, once convened, such a convention could in fact overturn the entire constitution! Barnett suggests that Congress would likely draft an amendment themselves in the face of this prospect and put it thru the regular amendment ratification process. Why take chances, eh?
So, what text does Dr. Barnett suggest that would restore a healthy balance between federal and state power while protecting the liberties of the people? Here goes:
(Proposed) 28nd Amendment to the Constitution
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.
Barnett writes:
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.
American Hayek salutes Amendment 28.........I can tip my hat to that!
Molly Pitcher - Patriot