"This is a guy who was teaching law. Good God."
Is it time to amend the US Constitution -or even call a constitutional convention- to restore the balance in federal-state relations? Many on the Right and in the Center (and even some on the Center-Left), are growing concerned that the Federal government has grown too big, that its reach has grown too far as it seeks control not only over large swathes of the economy, but even over a private citizen’s medical choices. Some states have begun pushing back with sovereignty resolutions, while a grassroots tea party movement has sprung up to protest federal borrowing, spending, and taxing that seems far beyond government’s rightful needs.
Professor Randy Barnett of Georgetown published an article in the online Wall St. Journal today arguing the case for an amendment to clarify the boundaries between federal and state power. He points out that, under the Constitution, this can be done in one of two ways: Congress can craft an amendment that is then sent to the states for approval, or two-thirds of the states can petition Congress for a convention to propose amendments, a call Congress could not refuse. Barnett points out that the threat of a convention was instrumental in persuading Congress to pass the 17th amendment, so there is precedent for the states breaking out the "big stick."
These are the relevant clauses of Dr. Barnett’s proposal:
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.
I admit I find this idea fascinating, even elegant. The core of the argument today is over the role of the federal government: a small, limited government of enumerated powers, or a large central authority which takes on new responsibilities as it sees fit and plays an active role in directing our lives? This proposed amendment seems to clarify this, even going so far as to eliminate the income tax to reduce Washington’s power by limiting the money that flows to it.
I have questions about the text, however, and I’d be curious to know readers’ opinions: a friend on Twitter argued that section two seems limited to only the Commerce Clause, which Congress has used for decades to justify expanding federal power. I wonder though if, by the law of unintended consequences if nothing else, this couldn’t be interpreted to block the Supreme Court from incorporating the Bill of Rights to state law, which was the vehicle used to break the Jim Crow regime, for example. Could this amendment prevent the federal government from intervening if, in a hypothetical case, California passed a law saying Scientologists could not serve as teachers in state-funded schools?
I don’t know. I’m no constitutional scholar and I’m not sure that’s even a valid hypothetical. My correspondent on Twitter thinks section five may prevent that problem. What do you think?
Regardless, the groundswell that’s grown up around tea parties, sovereignty amendments, and now this proposal tells me that what Jonah Goldberg has called our nation’s libertarian antibodies are kicking into high gear, and I wouldn’t be surprised to see calls for a convention begin to appear in state legislatures. This allergic reaction will likely grow, not fade, and the coming months and years promise to be consequential ones, indeed.
(hat tip: that WSJ widget-thingy on the left.)