Nearly one year ago I proposed a Federalism Amendment in the Wall Street Journal followed four weeks later by a Bill of Federalism containing ten amendments, which appeared on Forbes.com. This has led me to hear from hundreds of citizens, and state legislators from around the country, about the pros and cons of constitutional amendments in general and my proposal in particular.
Given the enactment of the health insurance legislation this week, the time is now ripe for a stripped down amendment proposal that would address the issue of national control of health insurance, as well as the construction of Congressional commerce power by the courts that has greatly exceeded the original meaning of the Constitution. A proposal that is clear enough for concerned citizens, activists, state legislators, and candidates for Congress in 2010 to understand and support with confidence. A proposal that would unite all who believe in the original constitutional scheme of limited and enumerated federal powers, whether their politics are left, right, or libertarian.
To this end, I have drafted a new proposed amendment and am seeking the critical comments of Volokh Conspiracy readers to dissect the proposal to expose any weaknesses, ambiguities, or unintended consequences. (You can also say why you like it, but that is not the point of this post.) Here is the wording of
THE FEDERALISM RESTORATION AMENDMENTThe legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.
To be clear, I am NOT proposing this now. I am sure that there is lots I have not thought of and I cannot make any proposal until I get the sort of feedback I know our readers can provide–including all the reasons why this is a terrible idea.
So Volokh readers, here is your chance to make history–or to stand athwart history and yell “stop”–civilly, of course. If you hate the idea, it is in your interest to sweetly persuade me just how rotten an idea it is. Comments are open.
PS: This proposal would have no affect on the power of Congress under Section 5 of the Fourteenth Amendment.
Tim says:
It looks to me that you have not one amendment, but several amendments there (or at least two). It also appears that given that we are living in the post-1865 United States, that none of them will past. And while that may be a shame, I suspect that it’s also reality.
I’d even go further with the first clause. Why stop at health insurance? Why not prohibit the federal government from mandating that any citizen purchase any good or service?
March 26, 2010, 7:40 amcboldt says:
Rather than list a series of “forbidden” areas for federal power, I would reiterate the scope of the commerce clause.
March 26, 2010, 7:44 amAt bottom, I think the effort is good for inciting dialog, but that’s all it will accomplish. When it comes to action, words don’t mean squat (meaning the intention can be thwarted, regardless of how one states the agreement). The people who have attained the levers of government power have demonstrated considerable skill in sophistry in order to obtain power that was not intended to be granted. This holds true at all levels of government. Terms and precedents can be obfuscated and misconstrued.
Ricardo says:
Does “private health insurance” include employer-sponsored coverage? If so, this amendment would not just invalidate the most recent law that was passed but would also invalidate COBRA, HIPAA, ERISA and other measures that are fairly popular with the public.
Together these laws mean that once you get employer-sponsored coverage, you can’t lose it for arbitrary reasons, can continue the coverage even after termination, and they also severely limit pre-existing exclusion restrictions and prevent group plans from turning anyone away. In other words, they make the status quo system of employer-sponsored health care tolerable for people who already have such health coverage.
March 26, 2010, 7:59 amPersonFromPorlock says:
Too fiddly. How about repealing the federal power to regulate commerce among the states entirely (the states will regulate it among themselves, out of necessity), and specifying that the general welfare clause applies only through the enumerated powers.
March 26, 2010, 8:10 amStephen Lathrop says:
Better as an amendment to the Alabama constitution.
If you want to tinker with the work of the founders, you ought to strive to think generally about the process of government. Forget the current debate per se, and distill your proposal until it addresses the essence of the problem that concerns you.
March 26, 2010, 8:12 amRicardo says:
Does this proposal also ensure that real socialized medicine is also unconstitutional? If not, in line with my previous thought, if you actually worsen the current system by invalidating regulations on employer-sponsored health insurance (e.g. you create a world where you never know if you will still have health insurance three months from now), that would simply increase public pressure for socialized medicine.
Right now, few people support socialized medicine because they think they have a pretty good deal through their employers. Change that reality and I think you make it more likely the U.S. gets an NHS-style system.
March 26, 2010, 8:17 amleo marvin says:
Also, “therefrom” is ambiguous. From inside the state? Outside?
(By the way, I oppose the whole idea, but I doubt you’d find my reasons helpful. Suffice it to say, if it were up to me we’d have single payer.)
March 26, 2010, 8:20 amHanah Volokh says:
What about government employees? You talk about “private health insurance,” but government employees get employer-provided insurance from private companies. Surely the government should be able to “regulate” that.
I also agree with the previous commenter who suggested making the text less specific to health insurance. It would be far better to ban the federal government from mandating individual purchase of any good or service from a private company.
March 26, 2010, 8:23 amB.D. says:
A little too specific, if you ask me. Why not just pass an amendment specifying an originalist meaning for “regulate”? Perhaps it can specifically prohibit Congress from compelling individual participation in commerce.
Limiting it to health insurance does just that . . . it limits it to health insurance. Commerce Power abuse threatens ALL areas of private life.
March 26, 2010, 8:24 amConstitutional Crisis says:
Go for it.
March 26, 2010, 8:25 amConstitutional Crisis says:
Go For It!
March 26, 2010, 8:27 amDaveK says:
It seems as if you are starting with a clean slate with respect to your previous Bill of Federalism. Is that really necessary? With respect to a few of the previous comments, can what you had before be distilled, and presented, in a way that it is more understandable to the general populace (like me)? The BOF is more general, not specific to health care, but it would deal with it.
March 26, 2010, 8:28 amRandy Barnett says:
Drafting suggestions such as those suggested by Leo Marvin are more helpful than statements of general aims. It is hard to draft specific language. BTW, “shall not be construed” was chosen over (“shall make no law”) because the latter might not apply to already enacted legislation. The former was used in the Eleventh Amendment to indicate retroactive effect. Finally, “shall not be construed” is language that does not concede that it is the Constitution that is being changed rather than previous Supreme Court decisions.
March 26, 2010, 8:29 amAnderson says:
I don’t really understand how to talk to people who are unconcerned about a government that tortures prisoners, but who are apoplectic about a government that provides healthcare.
March 26, 2010, 8:30 amJeremiah says:
Federalism is more frequently subverted than overcome by frontal regulatory assault. I don’t think your amendment would exclude federal mandates that are a condition of federal funding. If you want to restore the power of the states, you have to eliminate conditional federal aid to states.
March 26, 2010, 8:31 amChaim Gordon says:
Would congress be allowed to levy an income tax under this proposal if the income was produced in-state?
March 26, 2010, 8:33 amNR says:
Pretty radical proposal, in that it would invalidate many current federal laws. I appreciate the ideological purity with which you are approaching this issue even though I don’t share your views. But as a practical matter, I don’t think you’d have any real chance of passing an amendment that would, among things, prohibit the federal government from criminalizing the intrastate production and sale of methamphetamine and, as previously noted, invalidate COBRA, ERISA, and other popular health care legislation.
Finally, thanks for opening comments. I hope this experiment will show you the value of allowing feedback from your readers and encourage you to do so more often.
March 26, 2010, 8:39 amsashal says:
how about banning anachronism of Federalism and separate states.
Do different ethnicities populate them?
Is it like Yuogoslavia, USSR when distinct ethicities wanted their autonomy and less federal power?
States are regions , shires, oblast’, gubernia
(look it up).
Why Delaware has to have two Senators vs California?
The beauty of history is that it never stands at one place it developes and progresses.
USA is one nation, not the union of several distinct ethnicities.
I love the panic the conservative mild improvements to the way Health Insurance companies operate caused in some.
Communism is coming!
Pathetic.Truely pathetic, God forbid some fellow citizens will be able to get health coverage like us.
It convinces me more and more everyday that MODERN AMERICAN CONSERVATISM/ RESPUBLICANISM does not belong in the American future
March 26, 2010, 8:39 ambob sykes says:
Actually, what you want is the “Articles of Confederation.”
March 26, 2010, 8:41 amMeredith M. says:
I’m glad there are people like Randy Barnett who are crazy enough to think of these things. :)
I agree that it’s too specific about healthcare. That’s just the current battle. Imagine in 100 to 200 years what the battle will be- how will this amendment help those people? For example, when the 14th Amendment was drafted it wasn’t thought to apply beyond black people, but now it encompasses all kinds of minorities, even majorities (like women).
Also, I recommend using the Oxford comma in your lists. It makes things clearer, again for those who would be interpreting this amendment in 100 to 200 years.
March 26, 2010, 8:45 ampublic_defender says:
Naming a specific provision you don’t like is one sign that this is not based on high principle. That’s also just Constitutional Clutter.
Plus, the only other viable solutions to the problem of uninsured people is something far less market-oriented, like a progressive tax to support vouchers or Medicare for all.
Maybe an activist conservatove court could strike this down, but it denies reality to say that the current hath care mess does not substantially affect interstate commerce. Just one example: The way the individual policy markets treat pre-existing conditions is a HUGE barrier to employment and entrepreurial mobility. Adverse selection just increases the price and makes the mobility problem worse.
Finally, on a political level, do you really think you enough people will support a measure that would restore the right of insurance companies to deny coverage to kids with pre-existing conditions? Imagine the hearings.
Pleasea, oh please make this an issue! That would be such a wonderful gift to the Democratic Party.
March 26, 2010, 8:57 amBarry Kirk says:
A couple of weeks ago I proposed a constitutional amendment, allowing citizens the power to create a petition that would repeal any law or treaty. Such a petition if signed by 10% of the population would nullify said law or treaty.
After some thinking, and I know there are several problems with the idea. I came up with a different variant.
And the wording here is very loose, but I’m just trying to get the general idea across.
The new amendment would have the following effects.
1. The power of the House of Representatives would be changed. Instead of writing laws, the house would only have the power to repeal laws and treaties. If 10% of the members of the house vote to repeal a law or treaty. That law or treaty is nullified.
2. If 10% of the members of the house of representatives band together to declare a law or treaty nullified, that law or treaty is nullified, there are no procedures or debates that can prevent them from doing it.
3. The house of representatives is solely responsible for determining the amount of the federal budget. They do not have the power to decide how the money is spent, just how much money is spent. Each member of the house bids an amount for the federal budget. The federal budget is set at the amount where 90% of the members of the house bid that amount or more.
I’ll give an example with 10 members.
Amounts bid are 5, 3, 7, 5, 9, 15, 8, 7, 20, 30…
Well 90% of those numbers are 5 or more so the federal budget would be $5.
The senate would decide how to spend that $5.
4. Their would be strict term limits for members of the house. One 2 year term per lifetime.
5. 10% of the members of the house can decide to eliminate a federal agency or bureau. Any person who works for that agency or bureau, automatically loses their job and pension. Any person who works for the eliminated agency or bureau cannot be hired by the federal government for a period of 5 years after that agency or bureau is dissolved. If a person leaves an agency or bureau before it is dissolved, they start the five year clock at that point. If they run out the clock before the agency or bureau is dissolved, they are not affected by it.
6. The senate would have the sole responsibility of passing bills and all the language of coordinating bills between the two houses would go away. The senate would only have the ability to spend the money budgeted to them by the house of representatives.
7. The senate would go back to being elected by the states.
8. There is a six month waiting period between the passage of any law, or ratification of any treaty before it’s allowed to go into effect. The house of representatives can nullify that law or treaty at any time including during that six month waiting period.
Here are the reasons for the above. The house should be the peoples representatives. They should be there to protect the people from the Federal government, not to enslave it to the Federal government.
These changes would completely change their focus. It would also separate the people who spend the money from the group of people who decide how much money is available to spend. Now the senate would be debating how to divy up a fixed amount of money rather than i’ll spend for you if you spend for me with little consequence for increasing the spending.
The house doesn’t actually get to spend the money, so they have less motivation to endlessly and needlessly increase the federal budget.
The reason for the section on eliminating bureaus is the following. Currently, the bureaucrats working for the government can regulate and abuse the citizens who have little to no recourse to do anything about it. The bureaucrats have nothing to fear from the citizens.
However, if the citizens representatives in the house can eliminate that bureau, those government workers, would actually fear the citizens. They would know that if they run roughshod over too many people, they lose their jobs and pensions.
The five year clock prevents them from just switching to another bureau if the one they were working on gets dissolved out from under them. It means that they have consequences for their actions.
In the earlier proposal with a petition process, there was the legitimate critique that you could probably get 10% of the population to petition to eliminate the laws banning murder… Well maybe not murder, but a lot of necessary laws.
By making it 10% of the members of the house, and those members are elected by democratic means. The belief is that they would be a little more mainstream. Your not going to win an election on the platform that your going to make murder legal.
This idea also would totally change the way members of the house run their campaigns. Their entire focus would be on telling people what laws, treaties, or bureaus they would get rid of and what they would limit the federal budget to. It’s a totally different way of running a campaign.
Currently the system of check and balances was designed to limit the increase in the government. And for 200 years it was somewhat effective. But the current system tends to be a ratchet, once a law is passed, be it good or bad, it’s almost impossible to repeal.
This provides a mechanism to repeal bad laws. Think of it as a Federal garbage collector. It provides a means of getting rid of the trash.
Any case, please let me know what you think.
March 26, 2010, 9:06 amMark C says:
I would insist that the following will fortify any effort in this matter,…
Congress and the POTUS shall pass no law on/to the citizens of the United States that does not equally apply to Congress and the POTUS, and Congress and the POTUS shall pass no law on/to themselves that does not equally apply to the citizens.
March 26, 2010, 9:15 amjperkins says:
Not sure what it would look like, but I think you need to add language that prevents Congress from linking the receipt of federal funds to the State’s adoption of national health insurance regulations, prohibitions, and mandates. I am also not sure if Congress could get around your language by allowing the purchase of insurance across state lines?
March 26, 2010, 9:26 amCornellian says:
It’s generally a bad idea to enumerate specific policies in a constitutional amendment, in this case health care. Apart from that, the amendment, however faithful it might be to the Commerce Clause as originally drafted, would get roughly zero support in Congress (i.e. probably no one but Ron Paul).
March 26, 2010, 9:27 amAdam says:
I would definitely second what others have said concerning specificity on the amendment. Either focus on the health insurance aspect of it (I’d rather you not), or take on the argument of the Commerce Clause.
In Restoring the Lost Constitution, you did a wonderful job illustrating that Commerce was synonymous with trade or exchange, and that “to regulate” was the same as “to make regular”. These are the types of things the average citizen does not know.
I would reword it to dealt solely with the Commerce Clause’s relationship to single state economic purposes, being subject solely to the police power of that state. That seems to be the strongest part of the proposal.
March 26, 2010, 9:34 amJRC says:
I think it is completely off topic.
March 26, 2010, 9:40 amRoger the Shrubber says:
Despite the qualifiers, you still might a truck driven through that bolded language, because in many cases it will be a metaphysical question. I can see it overturning Raich and Wickard. Other scenarios, particularly involving transactions with corporations outside the state, or with interstate operations — not so clear.
March 26, 2010, 9:47 amThe Mo Mo says:
Why don’t you just repeal the 17th Amendment? That should restore the political safeguards of federalism more effectively than any federalism amendment would.
March 26, 2010, 9:47 amPatHMV says:
Randy, I would think the lesson of the past 80 years of Constitutional interpretation is that there are ALWAYS ways to interpret around things. Your desire to enact new explicit restrictions on Congressional power is misplaced; if there’s a way to exceed such restrictions, our history has shown that Congress can and will do so, without the Court doing all that much to stop them. This is particularly so now, when a very large population in America doesn’t even accept the basic point of those restrictions, and really does see Congress as the equivalent of a national legislature.
At any rate, it’s not the bill of rights or any of the other explicit restrictions on Congressional power which have kept us from becoming a totalitarian state over the years. In addition to the innate good sense of the American people, it’s the STRUCTURAL limitations on government action which have saved us. Given the changes in the size and scope of government over the past 100 years or so, we should be considering adding some structural protections to our freedoms. For example, add a third legislative chamber, which can only vote yes or no, not amend, any bill which has been passed by the other two chambers, before it is presented to the President. That would be a STRUCTURAL way to guarantee that we all have at least 30 days to read any bill. Or let the 3rd chamber be responsible only for writing the rules of procedure to be followed by the other two chambers.
Neither you, I, nor anybody else on this planet is a skilled enough legislative drafter to craft a Constitutional Amendment which would guarantee that Congress couldn’t stretch the power it’s been given. I don’t know how you can read modern federalism (and a raft of other) cases and not come to that conclusion. Promote structural changes, not merely substantive ones.
March 26, 2010, 9:51 amJohnny Longtorso says:
How about just an amendment specifying term limits and automatic sunset clauses on all legislation unless explicitly reauthorized, and maybe requiring more than a bare majority to pass anything? Wordy things specific to “health insurance” will not only be clutter, but will be easier to get around when needed.
March 26, 2010, 9:52 amAdam says:
Perhaps we should simply take out the word commerce, and in place put “trade or exchange”. The crux of the Commerce Clause is the ambiguity involved with the word commerce.
March 26, 2010, 9:52 amepluribus says:
This proposal, and others described by posters here, demonstrate the incredible dangers that a new constitutional convention would present. If these proposed amendments are ill-conceived, poorly thought through, and bizarrely situational, as they certainly are, you can imagine what horrors a constitutional convention might come up with. I really doubt that the First Amendment or the Fourth Amendment would survive in anything like a recognizable form. The motives behind this kind of constitutional tampering enforce my profound respect and gratitude for the drafters at Philadelphia in 1787. They were reasonable men who understood that a constitution is meant to endure for the ages, and they were not confused by the political hysteria du jour.
March 26, 2010, 9:52 amFloridan says:
Randy Barnett’s proposal: Myopic
Barry Kirk’s proposal: Insane
March 26, 2010, 10:01 amJohnny Longtorso says:
Or remove the Commerce Clause and simply forbid states from discriminating against out of state entities or passing tariffs (i.e. make the original goal of the clause explicit).
Or just remove the Commerce Clause entirely on the grounds that I prefer states being able to pass tariffs to the Federal monstrosities preventing them leads to.
March 26, 2010, 10:03 amJRC says:
I agree that perhaps the better approach is to define commerce for purposes of the Constitution. Something along the lines of “Commerce as described in Article I, Section 8, means that Congress shall have the power to . .. but under no circumstances shall Congress have the power to . . . .”
March 26, 2010, 10:07 ambyomtov says:
nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state,
This seems to invalidate environmental laws and many civil rights laws, among others.
If I may express a civil opinion, the amendment is bat***t crazy.
March 26, 2010, 10:09 amStan says:
They were also a small group of culturally, educationally, and class-wise similar men.
March 26, 2010, 10:12 amcboldt says:
– I really doubt that the First Amendment or the Fourth Amendment would survive in anything like a recognizable form. –
March 26, 2010, 10:13 amThat conversion is long underway, and largely successful. The Fourth is now a sham, and there are serious calls to regulate content on public airways, see, e.g. “fairness doctrine” and McCain-Feingold.
No concern for the treatment given the 2nd amendment?
josh says:
Where is the language about requiring the commander in chief to demonstrate that he is a citizen by providing a copy of his birth certificate before taking the oath of office?!?!
March 26, 2010, 10:13 amBarry Kirk says:
The bottom line is that the government is rapidly losing any ability to control it’s growth and excesses.
The framework put in place by the founding fathers to put limits on the federal government are failing and something needs to bring it back in line.
The question is how to do that. Looks to me like many of the posters here agree on that. Just that everybody has their own take or spin of how to implement that.
March 26, 2010, 10:15 amjperkins says:
I disagree. The problem is the necessary and proper clause. As far as I am aware the Court has never broadened the scope of “commerce.” It has used the necessary and proper clause to reach its results.
March 26, 2010, 10:16 amjosh says:
But seriously, I’m with Anderson. It’s hard to take people seriously who view health care reform as follows: “we, the citizens, will not stand by while our freedoms are trampled.” (R. Barnett, last night’s post). But, then again, every year I do my taxes I feel my rights are being trampled …
March 26, 2010, 10:17 amcboldt says:
– They were reasonable men who understood that a constitution is meant to endure for the ages, and they were not confused by the political hysteria du jour. –
March 26, 2010, 10:18 amThey were radicals, who aimed to MINIMIZE government, by force if necessary. The function of the constitution was to restrain the government, not empower it.
cboldt says:
– The framework put in place by the founding fathers to put limits on the federal government are failing and something needs to bring it back in line.
March 26, 2010, 10:25 amThe question is how to do that. –
Nature will take care of all that.
I don’t see any possible way to reduce the scope of federal intrusion. It’s fun talk around the dinner table, how to rein in the feds (see bills in several western states as to intrastate firearms being outside commerce clause reach), but the pendulum is in motion toward MORE, and MORE CENTRAL government. Directly consequential of that is less individual freedom. It seems to me that (at least a majority of) the people are asking for all that, in return for “security.” In this case, health security. In other cases, financial security. See too, food and shelter security – now perceived as proper functions of the government. Education security, and so on, down the line.
G.R. Mead says:
“1. Congress shall have no power to regulate commerce and Article I, Section 8, Cl. 2 is hereby revoked.
2. All powers to regulate Commerce among the several States and within the territory of the United States not herein granted are hereby resumed by the People.
3. Congress shall have power to define and enforce law conditioning instances of the transport of physical articles of commerce or means of communication among the several States, or with Foreign Nations, but only as to the time, manner and conditions necessary to the immediate public safety of its transport or communication, but in no event to prohibit its substance or contents, nor to tax any item of communication in any way, and all taxes imposed on articles in interstate commerce shall be uniform.
4. The States shall have no power to prohibit the importation or exportation of any article of commerce or communication by the People among the several States, or with Foreign Nations, subject only to the power of the State to define and enforce law giving effect to the commercial relations voluntarily established by the People within its jurisdiction.”
March 26, 2010, 10:26 amRichard Riley says:
The phrase “and subject to the police power thereof” seems surplusage. Doesn’t “any activity that is confined within a single state” get you where you want to be? Are you trying to silently incorporate federal constitutional restrictions (1st Amend etc.) that have been applied to the states and arguably place certain activities beyond state law “police power” control? It seems an odd phrase to have there.
March 26, 2010, 10:37 amRay says:
Perhaps, since in the founders day, commerce meant buying and selling human beings.
March 26, 2010, 10:37 amJD says:
This is great. How can The People redefine the commerce clause?
March 26, 2010, 10:38 amDavid says:
Your draft strikes me as too narrow in scope for a constitutional amendment. A constitution ought to deal much more with fundamentals, leaving the particulars for statutes. In drilling down to the level of private health insurance, your draft reminds me a bit of the Alabama Constitution with its 800 or so amendments.
Amendment 628, for example, stipulates (in part): “The additional fees when collected by the clerks or their collection officers of the courts shall be paid into the General Fund of Bibb County to be used by the Bibb County Commission for the planning, designing, construction, financing, furnishing, equipping, and operation of a new county jail.”
The idea of prohibiting mandatory health insurance is fine. I’m all for that — but not as a specific provision of the Constitution.
March 26, 2010, 10:45 amPatrick1 says:
What does your amendment do that couldn’t already be done if we just enforced the 10th Amendment?
March 26, 2010, 10:46 amjperkins says:
like prohibition?
March 26, 2010, 10:47 amGregg the Obscure says:
1. The power of Congress to regulate commerce shall not include the power to mandate any particular purchase by any person nor to mandate specific aspects of any goods or services provided by private persons, but only disclosure of relevant attributes of said goods or services.
2. States and local governments within states and territories have absolute discretion to enact and enforce criminal and civil laws to the extent such enactments and enforcements do not violate the express language of this Constitution.
3. Each Act of Congress shall expire no more than fifty years after its effective date. Any expired Act of Congress may be re-enacted in the same manner as Congress approves other Acts.
4. No administrative regulation issued by the Executive Branch may be in effect for more than twenty years without express approval of the entire regulation by an Act of Congress.
March 26, 2010, 10:48 amA.W. says:
Randy, you write:
> PS: This proposal would have no affect on the power of Congress under Section 5 of the Fourteenth Amendment.
Now, obviously you can’t write everything into an amendment, or else you end up with a prolix legal code instead of a constitution, as Marshall said way back in McCulloch.
But you might want to clarify that in the text.
But i would go further than that. i would like the same amendment to affirm the proper reading of Sec. 5, and all of the enforcement clauses, which i think is frankly broader than originally contemplated. I believe that a proper originalist reading of the 14th Amendment would uphold the civil rights act of 1964 on its own, as well as the parts of the ADA that apply to the states.
I would add that from a strategic point of view, it might be a poor idea to go after the commerce clause in general. A better attack would be to cut it down to purely the health care stuff. i mean you can picture the ads against it if you leave the commerce clause stuff in: “this would invalidate the civil rights act of 1964, hate crime legislation, a woman’s right to equal education, the americans with disabilities act” and so on. Bluntly, I think you can’t get a coalition to defeat congress’ over reach on commerce generally, but you might be able to get one together to defeat the health bill.
March 26, 2010, 10:49 amepluribus says:
Just the opposite. The function of the Constitution was to replace the Articles of Confederation. A comparison of the Articles with the Constitution reveals a desire to strengthen the federal government, not weaken it.
March 26, 2010, 10:57 amCraig says:
I don’t know why you’d mention health care specifically, since it’s not the only thing they’re likely to try. I rather like the Patriot Post’s declaration, and have signed it myself.
March 26, 2010, 10:59 amJoseph Slater says:
Entirely apart from the merits, this proposal reflects an interesting theory of how political/legal change happens. First, your position loses in the democratic process — and I’m not just talking about health care, I’m talking about a number of New Deal and Great Society programs that would probably be barred by this (see Byomtov’s post), programs that have enjoyed widespread support for generations. That’s a problem, so . . . .
Plan B, maybe we can get the Supreme Court to strike that stuff down as being contrary to what the Constitution really means / how it was originally understood. After all, we have the most conservative court (in many ways) that we’ve had for quite some time. But sadly, the Court for the last several generations just hasn’t understood what the Constitution objectively really requires, and the current conservatives on the court apparently don’t have the guts or will to through out 75+ years of jurisprudence and the many popular statutes enacted in that time pursuant to that jurisprudence. That’s a problem, so. . . .
Plan C, we’ll amend the Constitution. Sure, the framers made it fairly difficult to do that, requiring supermajorities in the political process on various levles. And sure, our proposed amendment would have the effect of striking down laws that have been popular for generations. That’s a problem, so . . . ?
March 26, 2010, 11:03 amTubbyHubby says:
Why not an even simpler amendment:
March 26, 2010, 11:04 amAll judgements rendered by the Supreme Court will based strictly on the text of the Constitution with neither interpolation nor extrapolation of hidden meanings not expressly writ. Any Supreme Court precedent based on such expanding reading of the Constitution is rendered null and void.
epluribus says:
I have found the VC a rewarding web site, particularly because I have learned a lot about law and public policy by visiting here. I have also learned a lot about the truly bizarre ideas embraced by right-wing ideologues. This thread is particularly valuable in the latter respect.
March 26, 2010, 11:04 amDjDiverDan says:
I much prefer the alternative offered by Greg the Obscure, with the exception of item 4. In the alternative, to rein in the runaway bureaucracy of the “Administrative Agencies” and to enforce accountability back onto our elected representatives for Agency actions, I would suggest the following:
March 26, 2010, 11:06 amnoahp says:
Just outlaw mandates that individuals engage in particular economic transactions which many of believe is already the case but the weight of learned opinion here at VC seems to be that the SC court either doesn’t believe it or is too cowardly to rule.
March 26, 2010, 11:07 amdsm says:
The issues are certainly broader than healthcare. I agree that the commerce clause needs some clarification, but I’d also like to see a clear statement that Congress may not delegate its authority to administrative bureaucracies.
March 26, 2010, 11:09 amArthur Kirkland says:
If this effort to improve the Constitution of the United States requires funding, the Chinese government would almost certainly grab the platinum sponsorship.
Russia should be good for the gold level. Candidates for silver packages: Iran, North Korea, Saudi Arabia, Monzer al-Kassar, Adnan Khashoggi.
My cut would be a mere 10 percent . . . in euros, thank you.
March 26, 2010, 11:14 amSum Buddy says:
Just takes 2 steps:
1. Repeal the 16th Amendment.
2. Replace the Commerce Clause with what amounts to a free trade amendment among the states.
March 26, 2010, 11:14 amEddie says:
I think a higher priority is to limit the political class. Term limits as follows:
Senate – 2 elected full terms (12 years)
House – 5 elected terms (10 years)
Supreme court – 20 year term – may be reappointed for additional 20 years
For the Congress – if elected or appointed to fill a partial term that does not count toward the term limit.
Thoughts?
March 26, 2010, 11:14 amKevin P. says:
Obviously, we provide them free health care before and after torturing them.
March 26, 2010, 11:15 amKevin says:
Way too wordy and topical.
Closer would be:
“Congress may not compel any state or individual to engage in economic activity, nor may Congress regulate activity that is merely incidental to interstate commerce. No tax may be laid on activity that Congress cannot directly regulate.”
March 26, 2010, 11:16 amcboldt says:
– Just the opposite. The function of the Constitution was to replace the Articles of Confederation. A comparison of the Articles with the Constitution reveals a desire to strengthen the federal government, not weaken it. –
March 26, 2010, 11:16 amI don’t disagree with that, and in retrospect, my comment that the constitution aimed to “restrain, not empower” was at least half wrong, because the constitution expressly empowers.
But I firmly believe that “enumerated powers” and “limited federal government” had radically different meaning at the time they were composed, compared with how those terms are now applied by those in power. Perhaps it’s time for a radical move, in the other direction – express absence of restraint of the federal government. The feds can establish smaller units of government, to be dissolved or rearranged as the feds see fit (much as the circuit court system is now organized); and rendering independent states an artifact of history.
Let’s dissolve the states, and eliminate federalism. There would be significant cost savings in the form of reduced turf wars, duplication of effort, etc.
Not to say that this resolves the issue of how much government regulation is too much – I suppose that as long as the people aren’t hungry or cold, and are sufficiently entertained, that the intrusion of government is potentially unlimited. We can be employees or wards of the state, as the state sees fit to coordinate and direct our individual efforts.
Abel says:
Stephen Lathrop in comment #5 made an excellent point:
“If you want to tinker with the work of the founders, you ought to strive to think generally about the process of government. Forget the current debate per se, and distill your proposal until it addresses *the essence of the problem* that concerns you”.
From that point of view, the general problem that needs solving is the idea that there is no effective check on the expanding power of federal power. The power of the Federal legislature is in practice *positive* – it adds to the laws and extent of federal government, typically without removing the laws and extent of federal government. What is needed is a fundamental “check and balance” on this tendency. What is needed is a purely *negative* power. Something that will be able to remove laws and extent of federal government.
The above is the fundamental problem with the document that the Founders left us. It is great document, but, it is missing that check. The reason why it is missing it is because Founders could not glean the mandates and burdens of the today’s government from the past experience of other societies.
In short, what is needed is a 4th co-equal branch of the government. Something whose power will be limited to saying “no” and setting limits on federal legislative and regulative power. There is actually a support for something like that in the original Founder documents. It is called “Consent of the Governed”. The way the phrase was used, it refered to consent of individuals and consent of the states (both).
Such co-equal 4th branch would be able to say “the federal government lacks consent of the governed for such and such law and regulation”.
The obvious candidate for the 4th co-equal branch would be the Governors of the individual states. In the basic form, the “Council of Governors” would have power to deny the federal government ability to do a thing or to deny ability to do a thing a specific way, by issuing a resolution stating “Denial of the Consent of the Governed States”.
That is enough writing for now. Would love to hear thoughts/opinions of others. :)
Abel
March 26, 2010, 11:17 amnoahp says:
The adoption of an amendment outlawing economic mandates might by say 20 states might goose the SC into growing a pair.
March 26, 2010, 11:17 amMichael Chaney says:
The problem, as others have pointed out, is that naming certain banned activities is a game of whack-a-mole. The solution is to simply force the commerce clause, which is the second part of this. The amendment should say that the commerce clause means exactly what it says and no more, and that merely affecting interstate commerce as a side-effect of any activity does not give the federal government any power over that activity.
This needs to be part of a broader movement to constrain the federal government back to its original purposes as specified in the Constitution. I’m not sure if it’s possible, but we need to try.
March 26, 2010, 11:18 amGuest14 says:
Federalism was abandoned because it didn’t work. I see no reason to try to reimpose it.
March 26, 2010, 11:19 amKevin says:
Oh,
“and copyrights may not extend more than 50 years.”
waste not, want not.
March 26, 2010, 11:19 amA. Robinson says:
Dear Prof. Barnett,
The issue is restoring Congress’s regulatory power under the Commerce Clause to its proper limits, given that it has been unconstitutionally broadened by court precedent. How about something a bit simpler? E.g.,
“Congress shall make no law mandating, regulating, prohibiting or taxing any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.”
March 26, 2010, 11:21 amSteve G says:
“The legislative power of Congress shall not be construed to include . . . taxing the private health insurance of any person”
By its terms, this would seem to not only cover the HCR approach of mandating health care through a tax (or “tax,” if you prefer; for these purposes the “is it really a tax” question doesn’t matter), but also the ordinary income tax where it would otherwise be appropriate (“income” for income tax purposes could never include health insurance, because that would be a tax on health insurance, which is outside of Congress’s power under this language). Health insurance would suddenly be the one item that could never be covered by any federal tax. I don’t think that is the intention, and could produce all sorts of problems and opportunities for tax shenanigans.
March 26, 2010, 11:22 amFoz says:
Just be sure to get in there somewhere that the congress shall make no law that infringes on the people’s right to hold, pursue and enjoy life, liberty and property and that the people shall be irrevocably seized of these rights and forever free from interference by or through the government thereto… and you can’t go far wrong drafting amendments to our constitution.
March 26, 2010, 11:22 amcboldt says:
– In short, what is needed is a 4th co-equal branch of the government. Something whose power will be limited to saying “no” and setting limits on federal legislative and regulative power. –
March 26, 2010, 11:22 amOstensibly, that is “the people.” See, in that vein, jury nullification.
But if the people want to be ruled, they will be ruled.
_Jon says:
My preference for the Commerce Clause adjustment is to simply change:
“Congress … shall have the power to regulate trade amongst the many States …”
to:
“Congress … shall have the power to regulate the manner of trade amongst the many States …”
I am sub-quoting the US Con from memory, but the change is to add “the manner of” to the power. This addition, I think, would be interpreted by the Courts to restrict the FedGov to only its intended role – preventing inter-state trade wars.
In doing so, such a change would automatically encompass health care.
March 26, 2010, 11:24 amAndrew says:
The country has changed a lot since 1787, and one of the biggest changes has been in communication. Now it is possible for the governor and legislature of a state to confer in real time with their counterparts around the country, including those in the nation’s capital. This means that it is no longer impractical to involve state officials in federal decision-making.
This is simple and straightforward. Giving such power to the state legislatures could also grease the skids of ratification. I’m not saying that an amendment like this should be adopted (because I haven’t thought about it enough), but I do think it would be an improvement over the one suggested by Randy. Incidentally, covering the executive branch would make it retroactive.
March 26, 2010, 11:25 amJeff Greason says:
First, I am not a lawyer, so I am not equipped to draft proper language for this suggestion. This is an alternative direction for Constitutional action, not yet a propsed amendment.
But it seems to me the core problem is that the Founder’s intention was to create what we could call today a “free trade zone” among the states — not that the Federal government would usurp the governing responsibility of the states. As in the Euro zone, that power has now crept in to areas previously unimaginable.
Therefore, rather than a narrowly tailored “shall not” approach, I think a “return to original intent” approach is called for.
What does it mean to promote free trade? It means that states cannot pass laws that prevent the importation of goods or services from another state — only Congress can do that.
Congress also has taken that power to mean that interstate transportation (road, rail, waterway, and air) is regulated only by Congress; that is probably appropriate. A nationwide transportation system without common standards would be difficult at best.
Therefore, I suggest something along the following lines:
“The power of Congress to regulate Commerce among the several States, in Article I, section 8, Clause 3, grants Congress only:
March 26, 2010, 11:27 am* The exclusive power to prevent or restrict the export and import of goods and services between States. Such power does not apply to any activity taking place within a State.
* The exclusive power to regulate interstate commercial transportation so as to promote trade and commerce among the States. Such power can not restrict personal travel between States.
Becky says:
So far, I like Mark C’s.
How about mandating that any law Congress passes that involves Commerce be reviewed from time to time for it’s effectiveness in creating the outcomes predicted? As some commenters have noted, the promises of the passage of this law were objective and measurable, in lives and money. If in 10 years, the prediction is not within an agreeable margin of say 5 or 10% then it is to be evaluated for either change or abandonment and re voted on automatically. That would keep them busy for a while. Engineers work with a margin of safety, it seems social engineers should too especially when they themselves set them.
March 26, 2010, 11:27 amnoahp says:
@CBolt When I was a kid in the ’50′s the argument was that since only the government can print money they should pay for everything.
March 26, 2010, 11:29 amDT says:
Congress shall have no power to regulate commerce among the several states except wherein the safety of goods are concerned. All laws and regulations for this purpose shall be subject to annual renewal by congress, and failing renewal shall lapse immediately. No state shall impose any barrier in restraint of trade on any other state. The power of congress to impose a tax shall be limited to the sole purpose of raising funds. The congress shall not have the power to impose mandates on the several states requiring any action or expenditure of funds not specifically enumerated in this constitution.
March 26, 2010, 11:29 amDavid Williams says:
I would like to see an amendment that said something to the effect of “While the Federal Government has the power to regulate intersate commerce it shall not be a participant in interstate commerce”.
March 26, 2010, 11:29 amGainesvilleGuest says:
It should include language to address the Court’s overly broad interpretation of the taxing and spending power. Any Federalism amendment, since ratifying one amendment is hard enough and ratifying another will be all the more difficult, should comprehensively address all aspects of the Court’s distortion of the Constitution’s original meaning. Dealing with the taxing and spending power is a necessary part of that.
March 26, 2010, 11:31 amanon says:
Eliminate the popular vote for senators, effectively giving state legislatures a vote in congress.
Also, replace income tax with apportionment. Apportionment would mean that each state is responsible for a proportional fraction of the federal budget based on population.
This has many advantages, states can collect this money anyway they want: income tax, flat, gasoline, etc. Second it provides an incentive and means for states to pull back power from the feds. Why collect taxes and then send it to DC only to have it dribble back with strings. “You know what DC” they would say, “we can handle our OWN (education, roads, etc) thanks”
Another advantage is that it pits groups of politicians against each other, like it ought to be. Bipartisanship is just word that means “we have agreed to steal from YOU”.
Also, we could then dismantle the IRS.
Finally, it has the advantage that both are/were already in the constitution.
March 26, 2010, 11:31 amDangerMouse says:
While I agree that the problem is structural, and probably requires a broader fix than merely an amendment relating to health care, I’m not sure that a broader structural amendment would have any hope of passing. Certainly, notwithstanding the benefits involved, repealing the 17th amendment would probably be politically impossible.
In order to identify exactly what kind of language you should propose, you need to really get specific about your goals. What, EXACTLY, are you trying to accomplish?
I’m assuming that your goal is to prevent government intrusions on liberty as seen in the massive statist healthcare bill, and to restore the liberty that has been lost over the decades from Congress’ and the Court’s creep into almost every aspect of our lives. However, I have yet to see a historical example of a democratic government significantly and permenantly reducing the size of government (especially in a scenario where big givernment is itself an interest group). The only historical example in recent memory is the fall of the eastern bloc Communist states. As you’re aware, that was not accomplished with a piece of paper.
One strategy you might want to consider is, let the government hang itself. Open the floodgates. Instead of proposing a restriction on federal power, propose an expansion. Turn the USA into Venezuela. By doing that, you probably have a better chance of fighting back the massive bloated statist system than by trying to plug a hole in a cracking dam.
March 26, 2010, 11:32 amOscar says:
What is the use of this?
If neither the Legislative nor the Executive branch deign to follow the current Constitution, what makes you think an amendment to a document they already ignore will make any difference? The Judiciary only rarely interprets cases in ways that maximize individual liberty. More often than not, individual liberty and state prerogatives take a back seat to legitimization of federal action or preservation of SC precedent (text and history of the Constitution be d***ed).
Folks, accept it: ObamaCare is the death-knell for whatever remained of Constitutional legitimacy. The Supreme Court will uphold this bill as a valid exercise of federal power to “regulate interstate commerce”. From that point, no aspect of daily life in America will be beyond the regulatory reach of the federal government.
The only answer is peaceful secession. Why continue this way when it is clear as water that the Nation is divided into two irreconcilable camps? If the Czechs and Slovaks could go their separate ways in peace, why can’t the U.S.? We do not have to be chained to the “settlement” reached in a civil war fought long ago –if divorce is in the cards, then let’s get it over with as amicably as possible.
March 26, 2010, 11:34 amKevin P. says:
Randy, here are my suggestions:
1) “Federalism Restoration Amendment”, while accurate is lawyerese that has appeal to only a limited number of people. The title should accurately convey to the average citizen the benefit of this amendment and why they should support it. I would suggest: “Limited and competent government amendment” or “Freedom in Federalism Amendment” or other brief amendment title that people can rally around.
2) Please break it down into multiple sections! I have a Master’s degree in Chemical Engineering and I found it hard to read and comprehend the giant sentence. Again, the average citizen must find this easily understandable. Clear and unadorned language always makes you friends.
3) I agree that the amendment should not be specific to a single subject. However, it is difficult to pass amendments and I don’t see the US Constitution acquiring hundreds of amendments anytime soon.
4a) For those who are concerned about civil rights laws which are (unfortunately) based upon the commerce clause, I would suggest a section that explicitly gives Congress the power to protect the equal treatment of citizens in commercial and public situations even in purely intrastate transactions. If this is not addressed, the left will most certainly use this to attack the Amendment as restoring the days of Jim Crow.
4b) In the same vein, a re-enactment of the 14th Amendment’s Privileges or Immunities clause would also reassure many citizens that they would not be left to the tender mercies of their state and local governments to protect their fundamental rights.
March 26, 2010, 11:35 amCJColucci says:
Is there any reason to think that anyone outside the bubble actually wants this? Let alone the constitution-sized supermajorities you’ll need?
March 26, 2010, 11:36 amnoahp says:
I would also like (while we are wishing) to see free transferrability from one state to another of professional licensure.
March 26, 2010, 11:39 amWm Tanksley says:
I find this discussion very interesting. I don’t think it’ll have any results, but perhaps eventually we’ll see something…
Anyhow.
That’s graciously said, considering how baffling you must find it. I understand your confusion. I think I can help. There are three angles to look at this from.
First, most people didn’t really (deeply) believe that the government tortured; they didn’t see it, and what they did see was that the worst thing the government admitted to doing was the same thing they used to train their own operatives. Now, we both know that the government DID actually torture, and although it took a while even the Republican party was able to find a face-saving way to retract its support for what it had to secretly admit was torture (by nominating McCain, who was certain to disallow all torture, and on VERY personal grounds).
Second, the number of people tortured was, as far as we know, *three*. That’s not enough to give a pool of people with possible horror stories. The number of people who’ve had health care horror stories is huge (on both sides). It’s not surprising that the debate gets hotter.
Third, your story about “a government that provides healthcare” is badly twisted. This bill isn’t about “a government that provides healthcare” in even a faintly similar way to how the previous debate was about “a government that tortures”.
-Wm
March 26, 2010, 11:40 amJust Dropping By says:
Yes, of course, because the language of the Constitution is so crystal clear that its plain meaning can be understood without interpretation by reference to outside sources. Quick, where does the Constituion define what a “felony” is? It’s a trick question: the word is used three separate times in the Constitution, but never defined. In fact, the Constitution omits definitions for almost all of the terms in it, so interpreting it “with neither interpolation nor extrapolation” from outside the plain text is functionally impossible.
March 26, 2010, 11:40 amFloridan says:
Eddie: I think a higher priority is to limit the political class. Term limits . . .
For an example of how well this has worked, one need look no farther than the Florida Legislature. An endless round of musical chairs, politicians jockeying for leadership positions before they are even seated, little institutional memory and an emphasis on short-term gains at the cost of the state’s long-term well being.
Moreover, there is no evidence, whether based on results or intentions, that our current term-limited legislators do a better job of governing the state than did their predecessors who were not term-limited.
March 26, 2010, 11:41 amDanube of Thought says:
This final clause strikes me as surplusage, and I would think it invites mischief:
whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.
March 26, 2010, 11:42 amT says:
I think that this ideas treats the symptom rather than the disease.
I would be in favor of a constitutional ammendment that prohibits congress from exempting itself from any legislation that it passes.
That would go a long way to solving the problems of health care and many other concerns in this country.
March 26, 2010, 11:42 amalkali says:
I would add: “The right to sleep under bridges shall not be denied on account of wealth.”
March 26, 2010, 11:44 ampat says:
I think an amendment that prohibits the federal government from mandating that citizens purchase a good or service might have a chance, with specific reference to state police powers. The never-used state convention method would need to be the vehicle for such an amendment, and a time of public outrage like now may be the environment for such a “grassroots” amendment proposal. It would be a simple amendment, but it would go a long way and prevent the continuing power grab by the federal government.
March 26, 2010, 11:45 amKevin P. says:
The most bizarre idea they have is that the Constitution should actually mean something.
March 26, 2010, 11:45 amM. Report says:
What is the death-cry of tax-and-spend politics ?
March 26, 2010, 11:45 amMoot-moot-moot. The _only_ power the Federal Govt.
has over the states is the redistribution of tax
dollars; Note that the states protesting ObamaCare
all list as one reason that it will bankrupt them.
Kevin P. says:
The states can call a Constitutional Convention and bypass the present makeup of Congress in doing so.
March 26, 2010, 11:46 amChuck says:
A. My suggestion would be to revise the commerce clause such that it authorizes federal legislation only to “remove or reduce barriers to the flow of interstate commerce” [that is, restrict it to the actually intended purpose].
B. Combine that with the earlier suggestion to restrict construction of the general welfare clause to the enforcement of specifically enumerated powers.
C. As to health, a separate amendment would be helpful. “The legislative power of Congress shall not be construed to include mandating, directing, regulating, prohibiting,or taxing, or otherwise legislating on the subjects of health, medicine, food, drugs,or insurance relating to health, medicine, food or drugs, of any person or entity”
March 26, 2010, 11:47 amFederal Dog says:
“It would be far better to ban the federal government from mandating individual purchase of any good or service from a private company.”
Or from the government itself.
March 26, 2010, 11:48 amLummox JR says:
Well, this is certainly a cleaner approach than the kitchen sink amendment that was trying to shoehorn in the so-called “fair tax”. Problem is I don’t think it’s all well written. Why should health insurance specifically be mentioned here? Congress, or any state, should have no power to mandate that an individual buy anything, except when they’re dealing with licensing issues like fishing permits, drivers’ licenses, car inspection and registration, etc.
March 26, 2010, 11:50 amepluribus says:
It already does that.
March 26, 2010, 11:51 amMr. Ballgame says:
Would this also be an opportunity to forbid Congress from the impairment of the obligation of contracts, just States are forbidden in Article I, Section 10? it seems to me many of the problems with insurer coverage or nonrepsonveness are best enforced by by their contracts in the market.
March 26, 2010, 11:51 amnoahp says:
A sizable majority according to numerous polls (I imagine this even more so in the states that were red in ’04) oppose the individual mandate.
March 26, 2010, 11:52 amepluribus says:
The idea that right-wing ideologues are the only ones who believe this is one of their most bizarre ideas.
March 26, 2010, 11:56 amd-berg says:
This amendment is impossible because it requires supermajority of Congress to vote for rescinding its own powers. There may be a stray Congressmen there who may be ideological enough to do this. Or may be two. But not 2/3 of both chambers.
March 26, 2010, 11:57 amJaimeInTexas (Jam) says:
How about this:
Federalism Restoration Amendment:
1) The preamble of this Constitution is only a statement of purpose and grants no authorities to the Federal Government of these united States of America.
2) The words “general Welfare” in Article 1, Section 8, Clause 1 are removed and Article 1, Section 8, Clause 1 shall now state:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and these United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
3) Add the word “expressly” shall be added to Amendment 10 to state that:
The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
4) Amendment 17 is repealed. The several States in Union shall begin the appointment of their Senators immediately, in accordance to their own Laws.
March 26, 2010, 11:57 amChristopher Cooke says:
One big effect of your drafting would be to gut much of the current application of the federal criminal laws. Perhaps that was intended.
For example, under current federal criminal law, if I sell an investment to 30 million people in California, and it is just a ponzi scheme, it is relatively easy for the US Attorney to prove federal jurisdiction and to prosecute –use of the instrumentalities of the mails, telecommunications, stock exchange, take your pick. But, under your amendment, federal law could not reach such conduct if it is an “activity confined within a single state,” regardless of the conduct’s impact on citizens in other states.
I think the problem you create is what does that phrase mean? What if I run a ponzi scheme from my website in California, on a server in California, and raise billions of dollars from people all over the world, who see my website and send me money via PayPal. Could the US Attorney prosecute me? No, probably not.
Now, could or would the local DA adequately investigate and prosecute this? I doubt it. It is not a simple drug bust or violent crime. It would involve reading lots of paper and sorting through bank records, etc., maybe getting cooperation from authorities in other parts of the world. Most of the DA offices I have worked with in the past have very few people who are interested in pursuing such cases or know how to pursue them (there are a few exceptions). They strictly prosecute “blue collar” criminals or very low level “white collar” criminals.
So, one big net effect would be to let many sophisticated white collar criminals go unpunished. Sure, the bank teller who embezzles a few thousand will be punished. But Enron/Ken Lay? I doubt it.
March 26, 2010, 11:57 ama_non says:
Whatever language you settle on, I would ask the following question:
Are the 1964 and 1968 Civil Rights Acts invalidated by this amendment? If they are, is that an acceptable outcome?
I would be interested to hear if Prof. Barnett has considered the effect of his proposed amendments on these statutes.
March 26, 2010, 11:57 amepluribus says:
Then how about an amendment saying that Congress shall not pass any law that is not favored in the Gallup Poll, that it shall pass any law that is favored in the Gallup Poll, that it shall repeal any law that is not favored in the Gallup Poll, and that it shall reenact any law that was repealed because it was not favored in the Gallup Poll last week but is favored this week.
March 26, 2010, 12:00 pmJaimeInTexas (Jam) says:
what happened to editing?
How about this:
Federalism Restoration Amendment:
1) The preamble of this Constitution is only a statement of purpose and grants no authorities to the Federal Government of these united States of America.
2) The words “and general Welfare” in Article 1, Section 8, Clause 1 are removed and Article 1, Section 8, Clause 1 shall now state:
The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States;
3) Add the word “expressly” shall be added to Amendment 10 to state that:
The powers not expressly delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.
4) Amendment 17 is repealed. The several States in Union shall begin the appointment of their Senators immediately, in accordance to their own Laws.
March 26, 2010, 12:01 pmKevin P. says:
I think your interpretation of the Amendment is correct. However, there are plenty of white collar crimes under state criminal law and no shortage of prosecutions. A classic example is the writing of bad checks which is routinely prosecuted by local prosecutors for even minor amounts. I am sure that a fraud committed upon 30 million citizens would have the local DA eager to prosecute, especially with so many affected local constituents. And that is the way it should be.
March 26, 2010, 12:03 pmnoahp says:
More bizarre than embracing ‘reforms’ that accelerate the nation on a suicidal fiscal path that puts the freedom of all to pursue their private dreams of life, liberty, and happiness?
Epluribus and CBolt do not think you will be safe.
March 26, 2010, 12:03 pmKevin P. says:
They probably are since they are based upon the commerce clause (excluding travel across state lines). And in my opinion, this amendment should give Congress the power to enforce the equal treatment of citizens even in purely intrastate commercial transactions.
March 26, 2010, 12:06 pmSteve says:
Part of this should be to strip the taxation authority away from the Federal government as the only viable means to restrict their growth and plunge towards socialism. Social Security was the first of many unconstitutional generational wealth redistribution programs, and should be repealed and replaced with PRIVATE mandated retirement accounts that belong to the individual and their families. Medicare and Medicaid should be handled in a similar fashion with the exception of forcing all insurance carriers to have one and only one risk pool from which they may set their rates and return them to a not for profit policyholder trust model, not a publicly traded stock model. And lastly there shall be no law from which any US Citizen is exempt. This is desperately needed to prevent Congress from establishing themselves as a class apart from the general population.
March 26, 2010, 12:07 pmnoahp says:
@epluribus. My comment was a rejoinder to a comment that there was no support for the ideas being discussed here. Of course I do not favor a government being ruled by Gallup. But you know that. Stop being a pinhead please.
March 26, 2010, 12:12 pmAnthony says:
Well, the health care clause is both a bad idea (far too specific for an amendment) and completely pointless (if you have enough support to get something like this passed by the states, you have enough support to kill it in Congress, which will be faster and easier).
The remainder of the amendment is equally impossible to pass in its current state, since passing an amendment (in a conventional way) requires a 2/3 vote of both houses of Congress, and if there were really a 2/3 vote in Congress for reducing their own power, they’d have done it already. Thus, you’re left with the method of getting 2/3 of the states to call for a constitutional convention, and once you do that, the convention is not limited to any specific subject matter.
March 26, 2010, 12:15 pmKR says:
I realize the tradition is to keep regulation in place long after it’s no longer necessary (3rd Amendment?) but does anyone seriously think that, if the Civil Rights Acts were repealed, that it would change anything as a practical matter? No one is going to suddenly stop hiring black people, or not allow Asians to sit at the lunch counter, or create white-only schools. The culture just isn’t there anymore. The Civil Rights movement worked.
Obviously politics is based on symbolism more than actual effects, so anything that seemed to repeal the Civil Rights Acts would be seized on as a “symbol of oppression” or something, but in reality it would make no difference.
March 26, 2010, 12:16 pmBNO says:
With respect to constitutional amendments, how about a constitutional convention? A proposal: an amendment which gives the states the power to nullify the enforcement (within an objecting state’s juridiction) of any federal law, executive order or federal judicial opinion. This would be a direct challenge to federal power, which would be the objective of the amendment. Federal power is out of control. We need to send a message to Washington.
March 26, 2010, 12:18 pmDuffy Pratt says:
This would effectively wipe out most civil rights legislation.
Congress could get around most of this by tying regulations to the spending power. So to make this effective, you would also have to have another amendment limiting the construction of the spending power.
March 26, 2010, 12:19 pmTom Geer says:
How about the following:
This Constitution must be construed, interpreted and applied in accordance with (1) the plain and ordinary meaning of its terms at the time written, and (2) the original intent of the drafters, specifically taking into account the Federalist Papers. The Federal government may act only in a manner that is clearly necessary to the exercise of an enumerated power, and the general police and welfare powers are limited to the States. No law or part of any law related to taxation may have a primary purpose other than the raising of revenue. No statute may include matters related to more than one specific topic. As to matters not within the enumerated powers, each State retains full sovereignty and plenary authority.
March 26, 2010, 12:19 pmCJColucci says:
CJColucci: Is there any reason to think that anyone outside the bubble actually wants this? Let alone the constitution-sized supermajorities you’ll need?
The states can call a Constitutional Convention and bypass the present makeup of Congress in doing so.
Yeah, I know the process. I knew it when I said what I said. I’ll say it again: hardly anybody wants this. Most people think, wrongly, that the federal government has more powers than it actually has, even under the current understandings, and they want it that way. Even if they sometimes disagree, even vociferously, with some of the products of that power.
March 26, 2010, 12:20 pmmatt d says:
Alternate:
The [interstate commerce power] shall be limited to such laws necessary to maintain free, unrestricted, nondiscriminatory trade between the states.
March 26, 2010, 12:21 pmAlast says:
Consider the calls to prohibit use of “foreign law” by US courts. Sounds nice on the surface, but as several articles here have shown, there are situations such as application of foreign law or marriages, that make clear such an absolute prohibition is unwise.
Similarly, your proposal fails to account for certain instrumentalities of interstate commerce that should be subject to federal oversight. For example, the local incarnations of the interstate telephone system. Local incarnations of the interstate electromagnetic spectrum.
What would be better that the 10 at once, is simple…. an amendment that permits the states, through submission by 2/3 of the states of petitions for identically worded amendments to the Congress, that the amendment is then released to the states for ratification, and that any state has standing with original jurisdiction in SCOTUS to force Congress to count the petitions and act on them.
After that, there is no more “runaway convention” talk…. and states can start taking back the wheel of the bus from the crazy bus driver.
March 26, 2010, 12:23 pmDee G says:
I agree it would be easier incrementally to restore the balance of power by repealing the 16th and 17th amendments.
Personally, I think we should shift the notion that most federal regulation is tolerable via the commerce clause power and instead conceptually frame federal regs as, are they useful to the extent they “fix the Standard of Weights and Measures.” You can fit pretty much all of the fairly useful stuff that the FDA, EPA, OSHA, pension laws, etc. do, while slicing out the bureaucratic idiocy that comes with them. Then, the only law Congress need make is that misrepresenting your good or service to be in compliance with these regs is privately actionable. Congress can then tinker around with penalties, who pays attorney fees, etc. as it sees fit.
On the health care topic, let HHS state, “XYZ is what we believe qualifies as the standards of care for women 40-45 years of age.” If that pronouncement has value, insurance companies will choose to say when marketing their product, “our insurance plan provides/complies with federal standards XYZ for women 40-45 years of age.” That gives an objective standard people can rely on and overcomes some of the informational asymmetry in the market; if the government sets a crappy standard, or an overburdensome and too-expensive standard, then let the market discount the value of the government’s pronouncements accordingly. If the insurance company fails to meet the advertised standard, let the purchaser go to court on a false advertising/breach of contract claim. Ditto for drug products: “this product was made in accordance with USP and FDA good manufacturing practices,” or “this product complies with FDA measures for safety and efficacy,” etc. Manufacturer lies, he’s in court.
Also, rather than a 3rd or 4th legislative body as suggested above, I’d rather see a civil grand jury right for any case seeking injunctive relief and/or a fine over $100 before the feds can initiate any litigation against a citizen, and that the feds have to meet a clear and convincing standard for any case it brings against a US citizen. I’ve seen government civil litigators up close and personal, and the extent to which they can make someone’s life miserable over a trivial case or issue that no private litigant would ever bother with is incredible. That would be another way for the citizen to start to check the enforcement power of the government…
March 26, 2010, 12:24 pmAlast says:
Strict interpretation will fix it….
Section 1. Whenever any provision of this Constitution or any law passed pursuant hereto is subject to more than one reasonable meaning or interpretation, it shall be construed in a way that is most favorable to the protection of individual rights as related to the United States, and most favorable to the protection of the rights of the several states as related to the United States.
March 26, 2010, 12:26 pmSection 2. Section 8 of Article I shall be strictly construed and limited to regulation direct interstate commerce, and the instrumentalities directly appurtenant thereto.
Admiral Tact says:
How about:
The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.
All kidding aside, any “FEDERALISM RESTORATION AMENDMENT” needs to address one thing and one thing only: the constitution means what it says.
There may well need to be a lot of text to remove all of the supposed flexibility and lack of clarity the courts have found, but in the end what is needed is not change, but definition. For example one might have an amendment that reads:
March 26, 2010, 12:27 pmHenceforth, wherever they might appear in this constitution the these terms shall have the following meanings: …
noahp says:
“to pursue their private dreams of life, liberty, and happiness at risk?”
The truly bizarre phenomenon is the “totalitarian temptation”. Sean Penn wants to incarcerate anyone who describes Chavez as a dictator. Cbolt and epluribus have the same sort of bizarreness in my view.
March 26, 2010, 12:30 pmNobody Really says:
I think environmental laws may be at risk by such an amendment (in the Bills of Federalism that was specifically addressed) and should be explicitly allowed here, but civil rights laws do not derive from the Commerce Clause.
I think this is a great idea with about zero chance of passing through Congress.
March 26, 2010, 12:32 pmRyan says:
I like your idea.
I’m working so I don’t have time to read all of this now. However, I was thinking of a good way to reduce the micromanagement of government into our lives with one simple amendment. What I came up with is this:
All laws made by congress shall be applied to all citizens equally.
This simply means that the law can not discriminate against one group of citizens over another. This seems to me very fair but would have fair reaching effects.
- Progressive income taxation would have to become a flat tax
- Congress could no longer have a different retirement account without paying into social security.
- National Legal drinking age would go away.
- In order to keep everyone happy they would have to pass much of the national laws back down to the state because they would have that power to more closely micromanage things. Competition between states would keep that in check.
Can anyone tell me what negative effects this would have?
March 26, 2010, 12:32 pmDonald Kilmer says:
What is wrong with:
Main clause:
Congress shall pass no law abridging economic liberty. All federal laws effecting economic activity shall be subject to strict scrutiny.
Sub paragraphs:
This amendment modifies the commerce clause ratifed in 1789 to mean that Congress may only pass laws that are beneficial to and actually promote a free market in goods and services among and between the states.
This amendment does not modify the power of any court of competent jurisdiction with respect to the law of contract or the common law torts of negligence, nuisance and/or trespass.
March 26, 2010, 12:34 pmStephanie says:
Yeah, don’t just stop at health insurance. Forbid them from mandating the purchase of any good or service. But what I’d really like to see is another pair of amendments: one to prohibit congressional exemption from taxes (they may not hike the rates so high if they can’t get out of paying), and one to prohibit congressional exemption from legislation.
March 26, 2010, 12:34 pmJohn says:
The Republic is %$^&#ed until we repeal the 17th amendment. Senators used to be appointed by governors and could be trusted to protect the states’ rights.
Now that they are popularly elected, they are really nothing more than a Hall of Fame for the House.
You will note that the 17th amendment was passed in 1913, the *same* year the federal government decided it owned everything and could levy taxes at will.
March 26, 2010, 12:34 pmtheBuckWheat says:
I would add that all bills and all amendments must be passed by recorded vote.
March 26, 2010, 12:35 pmJ. Bradley says:
Professor Barnett:
Thank you for the thoughts and request for input.
Alternative proposal:
“The only persons entitled to vote in any election of a representative, senator, or executive of the United States are those that in the two years prior to election were net direct taxpayers to the federal government of the United States. “Net direct taxpayers” means, for any federal tax year, citizens whose personal remittances of taxes to the treasury of the United States are greater than payments received by them directly from the United States or any agency or instrumentality thereof. The determination of any such status shall be made by the chief executives of the several states as to the citizens of their states.”
And: “Congress shall make no law requiring one citizen directly or indirectly to pay for the maintenance or troubles of another. All prior laws doing so are hereby abrogated. This prohibition shall not apply to the several states.”
March 26, 2010, 12:37 pmSteve says:
Let’s socialize all campaign contributions. All candidates for the same office must share equally with all their competitors.
Split the President / VP ticket so that everyone campaigns for president and the winner of the electoral college get the top slot and the runner up gets the VP slot. After all that is “fair”.
March 26, 2010, 12:39 pmSteve says:
All bills must be single issue bills, passed by recorded vote, and Congress may only be in session for 6 months every other year.
March 26, 2010, 12:41 pmBart DePalma says:
Our Constitution is drafted in concise and general propositions, which is a foundation of its longevity. Adding specific policy proposals is contrary to that approach. In any case, this clause is bad policy and would arguably prohibit regulations on fraud for policies sold across state lines in interstate commerce.
With respect, you are not a judge writing an opinion. Let’s keep this simple:
.
Section One returns the CC to the original meaning of commerce with the addition of services and capital to cover more recent trade developments.
Section Two expressly prohibits the regulation of acts and omissions within a state under the CC. The inclusion of omissions will hopefully head off nonsense like the individual mandate.
March 26, 2010, 12:43 pmyankee says:
While I strongly oppose your goals in offering this amendment, I’ll offer my comments anyway.
The biggest loophole in your language is the potential for using the health insurance clause as a means of interpreting the rest of the amendment. The presence of the health insurance clause can be used to suggest that private health insurance is never “confined within a single state and subject to the police power thereof,” thereby inviting a narrow reading of “confined within a single state.”
March 26, 2010, 12:45 pmcboldt says:
– Cbolt and epluribus have the same sort of [incarcerate anyone who describes Chavez as a dictator] bizarreness in my view. –
March 26, 2010, 12:46 pmMy “dissolve the states” proposal is meant to be taken as “A Modest Proposal.”
As for content of speech, I think Political Correctness is a scourge, and I wish somebody would hurry up and assassinate Chavez.
theBuckWheat says:
I think the comments about clarifying the ever-elastic one-size-fits-all Commerce (and Welfare) clause are spot on. We need to allow enumerated powers and rights reserved to the states and people to return from their long exile.
The bigger danger to the Republic lies in the fact that a school child cannot read the plain text of the Constitution and Bill of Rights and know what is legal and what is not. The left loves to use the concept of “nuance” because it gives them the wiggle room to navigate from no to yes no matter what the intervening language of the text prohibits or allows. Unless the Courts are willing to stick with the plain meaning of words, no new words will stop this slow motion train wreck.
March 26, 2010, 12:46 pmSteve says:
Let’s do a really radical move and criminalize the legal profession in it’s entirety.
March 26, 2010, 12:46 pmastonerii says:
Amendment 1:
The states have the right to dismiss supreme court justices on the grounds that they do not uphold the constitution. Worded such that it takes 2/3 of states to agree to dismiss specific judges. (Needed to restore balance between states and federal government, since the 17th Amendment took away the appointment of senators)
Amendment 2:
The federal government spending is limited to not more than 20% (18% in four years) (16% in 8 years) (14% in 12 years) and (12% in 16 years) of gross domestic product.
Amendment 3:
The commerce clause is modified to reflect the following. Congress shall only make laws that facilitate the exchange of goods, services or currency between the states. Congress shall make no laws which infringe upon the free exchange of goods, services or currency between the states.
Amendment 4:
All taxes or fees shall be levied upon the population shall be single rate with no exclusion for any purpose for any entity.
Amendment 5:
The federal government has no authority to make direct payments to any individual or group of individuals for any purpose which is not enumerated in the constitution. (Military, Congress, limited executive branch, Judiciary, ambassadors and embassies and such)
Amendment 6:
Clarifies general welfare is not an enumerated power of the federal government.
Amendment 7:
All rights for which United States Citizens enjoy for which the constitution prohibits the federal government from infringing are also prohibited to the states. (The right to free speech, bear arms, and so forth.)
Amendment 8:
All Illegal, undocumented or otherwise uninvited aliens of the United States Government are afforded no rights, privileges or immunities which have been granted to citizens,legal residents and invited aliens though this constitution.
Amendment 9:
No public employee may be a member of any union. (must be worded so that they cannot join any group which actively petitions the government in any form.)
Amendment 10:
The Rights enumerated and unenumerated in this constitution cannot be used to force any other citizen or entity of the United States of America to provide for the exercise of that right. A right is only a right when it can be exercised absent the coercion of others to facilitate it. (Free speech, but not a free tv show. Right to bear arms, but not be provided arms and ammunition. If abortion can remain a right after all this, no money, nor coercing doctors to perform it.)
Amendment 11:
March 26, 2010, 12:50 pmThe federal government may claim no land nor make regulations upon the use of any land for which it is not explicitly granted the right through an enumeration in the Constitution of the United States of America. (Worded such that the federal government limit on land is Washington DC, Military Bases, Federal Prisons, embassies of the United States of America and those of foreign nations in American Territory.)
Subotai Bahadur says:
As was noted by others, tying it too closely to just health insurance may be too specific given the nature of the regime we are dealing with. A limitation on the interstate commerce and “General Welfare” powers would be more on point. Then there is the matter of what to do about the next round of attacks on Liberty [and they WILL come].
While I do have some draft language for them, they are far too long to put here; but I favor Federal Rights of Recall and Initiative, with high signature requirements. Say if you get 20% of the number of people voting in a Congressional or Senate election willing to sign a recall petition, there will be a recall election in their state or district and the the seat will be vacated if they lose and they will be replaced in a special election within 90 days. If you can get 25% of the voting electorate in the last general election to sign petitions for a specific, identical Federal statute, in 25% of the states; the statute will be placed on the ballot nationwide at the next general election, and becomes law if passed. Similarly, if you can get 33% of the voting electorate to sign petitions for a specific Constitutional Amendment in 33% of the states, it goes on the ballot at the next general election, and becomes a Constitutional amendment if passed by a 2/3 vote in 2/3 of the states. We need a safety valve moving power away from the political class in DC, while still avoiding mob rule. It also would shift political emphasis away from the large, collectivist, Democrat-owned coastal states and more toward the flyover states that are now ignored.
March 26, 2010, 12:50 pmElliot says:
Is Obama torturing prisoners? When? Where?
March 26, 2010, 12:50 pmScott says:
Too narrow. Give the states the power to veto federal legislation. If 3/5 of the state legislatures veto a measure it is dead. The states used to have some power over Congress when they appointed senators. They lost this when the 17th amendment called for direct election of senators. A state based veto would allow the states to curb all kinds of federal shenanigans.
March 26, 2010, 12:51 pmScott says:
How about a constitutional amendment that says any state has the right to declare a federal law null and void. Essentially, give teeth to the 10th amendment.
Revise, article I section 8 to say the powers expressly granted as enumerated powers; and the tax and spend and general welfare clauses are not powers granted to the federal government.
March 26, 2010, 12:56 pmRestorationist says:
I have no particular critiques of this language, but I think, as some other comments have pointed out, the language may be too specific and focused too much on the current crisis.
I would think it better to address the problem from a systemic standpoint. It’s unlikely that federal power would be so broad today were it not for the Seventeeth Amendment, but repeal of that amendment is a non-viable option from a political standpoint.
Instead, I would suggest an amendment that gives a specified number of the states (perhaps 60%) the power to repeal federal legislation and regulations. Whereas a repeal of the Seventeenth Amendment would be framed by opponents as stripping the people of power, framing this proposal in such a way would prove much more difficult. Proponents could successfully push this as putting more power in the people’s hands at the expense of Washington.
March 26, 2010, 12:59 pmMichael says:
Dear Prof. Barnett. It’s a good start. How about an additional section, such as:
“All laws of the United States, with the exception of those expressly stated in this Constitution, shall apply to every member of Congress, of the Executive Branch, of the Judicial Branch, to their staffs, and to their family members.”
March 26, 2010, 1:00 pmMichael Brock says:
Didn’t read the entire thread, but…
Why write an amendment repealing a specific law, when you could just write an amendment that setup an easy way for states to repeal numerous federal laws.
I think this would be much easier to sell to the more liberal states. California might not want to repeal Obamacare, but they might be willing to repeal marijuana laws, or some other laws they disagree with. States could then get together and make agreements on which federal laws to repeal. California might be willing to repeal Obamacare, if another more conservative state was willing to repeal marijuana prohibition in return.
March 26, 2010, 1:00 pmAbel says:
Scott, Your suggestion in comment 149 is very similar to what I mentioned in proposal 69. However, if You use state legislatures for that purpose, then it is too cumbersome. What is needed is a smaller group of people, who are able to veto not just legislature, but, specific parts of legislature and other federal regulations (whatever stuff agencies write up). Hence, it would be better if the Governors of the state had such power.
March 26, 2010, 1:00 pmJeff says:
A couple of things here:
First, term limits are limits on the people to choose who they wish to represent them. Limits restrict the freedom of people to choose who they want to represent them. While I’m frustrated sometimes by the advantages of incumbency, the people elect who they want. Which brings up…
Secondly, people blame politicians for a lot of things, but those same people elected them and claim its not their fault. This country is not getting what it deserves, its getting what it created.
Third, from an old, old song from 1970 with the phrase “Freedom’s just another word for nothing left to lose”, we have the issue that people have already enslaved themselves to social security, medicare and other programs antithetical to personal responsibility. People will oppose freeing themselves because they’ve gotten habituated to government largess and nanny statism and are unwilling to lose what they’ve got.
What needs to happen, to get our freedoms back, is to have an amendment that defines a principle (not a specific program) that says the federal government must stay out of state and citizen affairs except for those things that require national security and the other enumerated powers the constitution provides for. Education, retirement, medical care and associated medications should be handled by local entities for education and the citizens themselves for things they want to have. This can be encapsulated with this idea “If a person or state aren’t willing to pay for a service, there is no reason anyone else should, especially the federal government. If local people don’t think a project is worth buying themselves ie earmarks, there is no reason the rest of us should pay for something the recipients and beneficiaries are unwilling to pay for.”
And just in case someone brings up the issue of the poor and people unable to provide for themselves, then ask why the federal government doesn’t take all our money and spend it on the poor of the world? The poor of America are way better off than most of the poor in the rest of the world. Its hypocritical to say we need to take care of the poor and then ignore the real poor of the world. The federal government should let people choose their own path and get out of the way.
So generalizing an amendment should not be specific to health care, but rather to limiting the government’s ability to intervene in personal or regional affairs.
March 26, 2010, 1:01 pmAnti Federal Interventionist says:
…..this amendment would not just invalidate the most recent law that was passed but would also invalidate COBRA, HIPAA, ERISA and other measures ….
and
…..This seems to invalidate environmental laws and many civil rights laws, among others….
and
…. I’m talking about a number of New Deal and Great Society programs that would probably be barred by this…
You all say this like it’s a bad thing …..
March 26, 2010, 1:02 pmSpitzer says:
2 simple amendments:
Amendment 29: Authority of Federal Government
o Article I, Section 8, clauses 1 and 3 is hereby repealed.
o The Congress shall have the Power to Lay and collect Taxes, Duties, Imposts, and Excises, to pay the Debts and provide for the common Defense of the United States, but all Duties, Imposts and Excises shall be uniform throughout the United States.
o The Congress shall have the Power to regulate Commerce with foreign Nations, and with the Indian tribes. No preference shall be given by any Regulation of Commerce or Revenue to one State over another; nor shall Commerce or Transportation bound to, or from, one State, be obliged to enter, clear, or pay Duties in another.
o The Congress shall not enact laws or regulations of any kind, or levy taxes, or spend money, with regard to any subject or matter not specifically authorized by this Constitution.
Amendment 30 (reall just a completion of the original first amendment to the Bill of Rights, which already has 12 votes): Electoral Districts
March 26, 2010, 1:02 pmo Article the first… After the first enumeration required by the first article of the Constitution, there shall be one Representative for every thirty thousand, until the number shall amount to one hundred, after which the proportion shall be so regulated by Congress, that there shall be not less than one hundred Representatives, nor less than one Representative for every forty thousand persons, until the number of Representatives shall amount to two hundred; after which the proportion shall be so regulated by Congress, that there shall not be less than two hundred Representatives, nor more than one Representative for every fifty thousand persons.
first history says:
Constitutional fantasy camp is now in session …..
March 26, 2010, 1:02 pmepluribus says:
I apologize. I just thought since so many others here were being pinheads I would try it too. I realize now that only right-wing pinheads are acceptable. As I said earlier, I learn a lot on VC.
March 26, 2010, 1:04 pmepluribus says:
You forgot about their dogs.
March 26, 2010, 1:06 pmfirst history says:
John sez:
The Republic is %$^&#ed until we repeal the 17th amendment. Senators used to be appointed by governors and could be trusted to protect the states’ rights.
Senators were appointed by a state’s legislature prior to the 17th Amendment.
March 26, 2010, 1:07 pmKevin P. says:
If he’s torturing prisoners, he hasn’t been unmasked by the New York Times yet.
However, he has promised to give Khalid Sheik Mohammed a show trial before conviction.
March 26, 2010, 1:10 pmepluribus says:
If you remember your history, back in the 1830s South Carolina proposed to do just that, and Andrew Jackson said if they tried it he would string them up by the highest tree. I mention that only because so many here seem to want to get back to the way things were in the old days.
March 26, 2010, 1:10 pmGregg the Obscure says:
I’d love to see more than one right-wing comment here to validate your use of the plural. This is mostly pretty damn leftwing.
March 26, 2010, 1:13 pmJeff says:
What about reversing the Supremacy clause, making state laws take precedence over federal law.
Then let the feds regulate anything they like, the states could override where they saw fit. If a situation suggested a general law, then the states could simply not legislate in that area and the federal law would take precedence.
March 26, 2010, 1:15 pmRedman says:
Give it up. I’m still looking for the section of the Constitution that allows discrimination based on skin color.
March 26, 2010, 1:16 pmDangerMouse says:
There are too many libs who are really totalitarians. That’s why I think that an outright effort to limit federal power again with yet ANOTHER amendment, is doomed to failure.
I like reading the proposals in these comments, and I think there’s a lot of merit to them. However, this is an exercise in catharsis instead of anything serious. If you want to truly limit federal power, it’s unlikely that it will occur because of this exercise. Congress won’t pass the amendment. The states, if they try to hold a convention, will be faced with a potential problem of the convention getting out of hand. It just won’t happen.
If you really think that the government requires a slap-down, don’t be deluded into thinking that it’ll happen because of words on paper. It won’t. Libs have long passed the line where mere words would limit them, otherwise we wouldn’t be in this situation. Either you give them the explicit power they need to make slaves of us all, in order to inspire a revolution that may or may not succeed. Or, you learn to live like a frog in slowly boiling water.
I have yet to be convinced that words on paper will limit the statists. It NEVER has stopped them.
March 26, 2010, 1:16 pmPIzza Snob says:
It seems to me that a “stream of commerce” justification for federal regulation could still take refuge in the “activity that is confined within a single state” language. At what point does an activity become a distinct unit? Consider the steps in getting a piece of fruit to market: the purchase of seeds, their planting, their cultivation and harvest, the sale to a wholesaler, the delivery to market and the ultimate purchase by a consumer. Your amendment does not provide clear guidance as to whether that ought to be considered seven activities or just one.
Rather than imposing a “single state” test to commercial activities, would it not be safer to carve out specific exclusions?
March 26, 2010, 1:18 pmohwilleke says:
Dead on arrival.
This would render unconstitutional such a large swath of the federal government that there is no way that it would secure the necessary majorities to be proposed in Congress (two-thirds in each house) or the necessary support in three-quarters of the states. The vision of the scope of the federal government articulated is not widely held outside the South, where the sting of civil rights movement defeats is still felt.
There are not 38 states in the United States where the process value of having economic policy made at the state rather than the federal level is widely shared. Lay people are barely aware that the state government exists and are far more intensely aware of the benefits they receive from federal government programs that contravene this proposed amendment. State legislators (who would be involved in ratifying the amendment) care more about policy than process (resulting in a DOA verdict in states with a house controlled by Democrats) and know how reliant they are upon the federal government for assitance in areas barred by this law.
The phrasing is also deceptive and confusing, but it fails to make clear that the first clause (relating to private health insurance) is unrelated to the remainder (barring the use of the interstate commerce or other powers to regulate intrastate commerce).
March 26, 2010, 1:18 pmJeff says:
I would like to see the following addressed, but I’m not sure of the language.
Repeal the 17th Amendment
Add an amendment to require the gold standard.
Add an amendment to further define the Interstate Commerce Clause, and more specifically define the word “regulate.”
Add an amendment to further define the General Welfare Clause.
Add an amendment to further define the 10th Amendment so that it is clear that the enumerated powers are for the Federal Government and that ALL else is for the People (State / Local). This amendment could also clearly define the limitation of the Necessary and Proper Clause.
Strike the following from the 2nd Amendment: “A well regulated Militia, being necessary to the security of a free State,”
March 26, 2010, 1:18 pmDanube of Thought says:
I’m still looking for the section of the Constitution that allows discrimination based on skin color.
Eh? Are we to understand the constitution as a document that “allows” things? Is that which is not allowed forbidden?
I’m looking for the part that allows me to wear huaraches.
March 26, 2010, 1:20 pmfwb says:
Ignorance is bliss.
We ddo not need anything like this. We need to throw the bums out and I mean the judges who violate their oath regularly by interpreting the Constitution.
The issue is one of stupidity and ignorance of our system of government and the absolute fact that judges are NOT empowered to interpret, that the Constitution itself proves there are NO IMPLIED POWERS, and that the vast majority of those who think they are educated concerning the Constitution are not educated at all but have been brainwashed through a system controlled by an agenda.
The claim of authority to interpret is the greatest lie and has caused the greatest travesties upon the people.
Education as to the actual explicit limits on the federal government must be accomplished. Adherence to the Constitution by honest and honorable persons must occur. People of integrity must come forth and serve.
But then this is all contrary to human nature. 99.99% of all humans do what is best for themselves at the expense of all others. 99.99% of all humans cannot get out of their box. Years ago I wrote a scientific paper entitled “Let the Data Lead Thee!” because people’s mispreconception usually take them down the wrong path of understanding.
I see many comments in this thread that stand as testaments to the lack of knowledge about the real Constitution.
Our day will come. Tiocfaidh ar la!
March 26, 2010, 1:20 pmScott says:
agree with anti-federalist interventionist. And Abel, the mechanics of it is one thing… just getting states the power to declare a law null and void would be a huge step. At least put some teeth behind the 10th.
March 26, 2010, 1:20 pmJohn Stephens says:
STRIKE THE ROOT!
“Article 1: Neither Congress nor any agency created or funded by Congress shall have any authority over or responsibility for the Health, Education or Welfare of the People of the United States, that authority and responsibility being reserved to the several States, and to the People themselves.
Article 2: Congress shall have authority and responsibility to provide for persons engaged in the service of the United States outside their territorial limits, and for all persons residing in areas under exclusive Federal control.
Article 3: After the conclusion of the Legislative session following the ratification of this amendment, Congress shall have no authority to allocate funds to any agency or person engaged in activities prohibited by Article 1.”
March 26, 2010, 1:22 pmJeff says:
Actually, I believe the method of selection was left to the state. Some of the states actually chose elections.
March 26, 2010, 1:22 pmstolicki says:
A federalism amendment drafted in general terms, like the one proposed in the WSJ article, is very unlikely to pass in forseeable future. But an amendment drafted like the one here (appearing to primarily address the health care issue, but actually invalidating scores of federal laws) can tap into the public anger against ObamaCare.
If the Medicare cuts are not postponed and the people really feel them by the November election, and if the candidates in State elections run on the issue of repealing healthcare by constitutional amendment, an amendment like this one would stand a substantial chance (not in Congress, but if the convention procedure is employed, Congress can’t do anything about that without openly violating Article V – they “shall call a convention,” not “may call a convention”).
By the way, I agree with Richard Riley that “and subject to the police power thereof” is a surplusage, and such surplusage may actually turn out to be quite dangerous. Suppose a state constitution declares that such and such economic activity cannot be regulated by state legislation. In that case, the activity ceases to be “subject to the police power” of the state, and the Congress may then claim that it’s exempted from the prohibition of this amendment. Such claim would of course be unreasonable given the purpose of this amendment, but is a claim that growing wheat on one’s one field for one’s own consumption is subject to regulation as interstate commerce reasonable?
Also, it would be useful to add two additional restrictions on the commerce power which are now disregarded, and without which other restrictions can be easily circumvented:
First. That Congress shall not have power to exclude from interstate transportation, communications, and commerce any articles, unless their transportation shall be attended with danger of injury to interstate transportation, communications, or commerce; or to prescribe conditions under which persons and corporations may engage in interstate transportation, communications, or commerce, unless such conditions are strictly and directly related to protection of such transportation, communications, or commerce; but this section shall not apply to commerce with foreign nations.
Second. That Congress cannot regulate internal affairs of individuals and corporations engaged in interstate commerce or activities of such individuals and corporations other than those directly connected with interstate commerce.
In this way, we would avoid laws like most of the New Deal legislation, which regulate matters that are not related to interstate commerce (i.e. public utility holding companies) and then declare that whoever doesn’t abide by these regulations cannot use mails or any instrumentalities of interstate commerce to pursue his business.
March 26, 2010, 1:22 pmF. Sumter says:
I am not a lawyer, but my reading of the Constitution indicates that 2/3s of the states possess the authority to propose amendments or to call for a constitutional convention. When the requisite number of states issue the call for a convention, then Congress “shall” call such a meeting. If 3/4s of the states ratify the amendment/amendments they become part of the Constitution. Congress is granted the authority to stipulate the mode of state ratification — that is by legislative vote or by a state ratification convention. At no point during this approach is a 2/3s vote by Congress required.
I have always believed a constitutional convention both dangerous and unnecessary, agreeing with Jefferson’s declaration that “mankind are more disposed to suffer, while evils are sufferable than to right themselves by abolishing the forms to which they are accustomed.” While I still recognize the potential dangers of a constitutional convention, I am no longer convinced that such a remedy remains unnecessary.
March 26, 2010, 1:24 pmAllan Walstad says:
I tend to agree with the many commenters who doubt the efficacy of specific additional stipulations on what the feds can or can’t do. Too fiddly, too likely to be run around, and in some cases possibly too restrictive in ways that might not be foreseen.
I’d focus on structural ways to limit federal action, as a few others have mentioned. Direct popular election of senators weakened the system of checks and balances, whereby state legislatures could protect their own powers against federal intrusion through their control over the Senate. Among the crucial areas affected were the ratification of treaties and the confirmation of Supreme Court justices.
I suggest the Senate should be made even more clearly an instrument of the state legislatures (than it was originally) by simply stipulating that two senators are selected by each state legislature. The legislature should be able to change senators as they see fit. Each state should pay its own senators and determine the salary of the office.
Oh–and the federal income tax has to go.
Sorry this is not entirely on-thread as specific criticisms of Prof. Barnett’s proposal, but it does serve as a general criticism coupled with an alternative approach.
March 26, 2010, 1:25 pmyankee says:
The stuff the commenters want makes Randy’s proposal look like an exemplar of moderation and restraint. Strip government employees of their First Amendment rights, disenfranchise the poor and middle class, strip the people of their right to decide who represents them in the Senate, allow the states to veto federal legislation, impose the gold standard …
March 26, 2010, 1:25 pmBilly Brown says:
I agree with a PatHMV that what we really need is a structural change that acts to systematically pare back the power of the federal government, rather than yet another paper barrier that the supreme court will simply interpret out of existence. If the plan is to convince the states to propose an amendment that would pare back the growth of federal power, the best way to get them on board is with something like this:
In order to check the boundless growth of Legislative and Executive power, the Council of States is hereby created. The Council of States shall be composed of one Councilor from each State, chosen by the Legislature thereof, for two years, and each Councilor shall have one vote. No person who has served as a Senator or Representative of the Congress shall be eligible to serve as a Councilor, nor shall any person who has served as Councilor be eligible for the office of Senator or Representative.
Articles 4, 5 and 6 of the Federal Constitution shall govern the operation of the Council in the same manner as the Congress, save that Councilors shall receive Compensation from the States they represent rather than the Federal government.
The Council of States shall have the power to repeal any act of Congress by a simple majority vote. The Council shall likewise have the power to repeal any rule or administrative law created by any Federal agency, and any order of the Executive directed at citizens who are not serving members of the armed forces.
That’s it. This would give the states a powerful tool for resisting federal encroachment, and the fact that the only thing the council can do is repeal laws will naturally lead it to do a lot of repealing to justify its own existence. At the same time it’s still a democratic process, so it’s a lot harder for opponents to argue that it would automatically gut some popular program the way they can with attempts to properly enforce the Bill of Rights.
March 26, 2010, 1:26 pmtroll_dc2 says:
Abel, your proposal seems to propose a variation on the Council of Experts that Iran uses to control the political process.
The biggest problem with the idea of mandating federalism through a constitutional amendment is that it does not account for the reason why things have become what they are, which is that the economy has evolved far beyond what anyone could have imagined when the Constitution was adopted.
For example, there were no railroads in 1789. Moreover, if what I have read is correct, a number of Southern states before the Civil War forbade their railroads to cross state lines, which caused problems for the Confederacy once the war began. Even the Supreme Court (in 1914!) understood that the rates set by a railroad in one state could have an effect on rates elsewhere. See the Shreveport Rate case. Yet the proposed amendment would provide “nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.”
This is just a single example of a larger issue. For instance, what would be the effect of the amendment on the ability to regulate Internet-based transactions?
March 26, 2010, 1:28 pmStoneHead says:
Well, Mr. Barnett’s proposal is certainly interesting. What about this?
1. The Commerce Clause shall be interpreted as follows: Congress may not regulate any commercial activities confined solely within the borders of a State.
2. Congress may not nationalize or have any ownership interest in any business, industry or other commercial endeavor.
3. Congress may not pass unfunded mandates.
4. Congress may not link funding to any specific actions on the part of the States or the People.
5. Neither Congress nor any State may mandate the individual purchase of any goods or services.
6. States may not tax businesses not physically located within the boundaries of that State.
7. No executive order may remain in effect for more than 365 days without Congressional review and approval.
8. No Act of Congress may remain in effect for more than five years without Congressional review and approval.
9. Any Act passed by Congress will apply to all elected, appointed and career members of the executive, legislative and judicial branches.
10. Any Act passed by Congress must be on a pay as you go basis.
11. No regulatory agency has authority to alter or amend its scope or requirements without said regulation being reviewed and approved by Congress.
12. Prisoners of War and non-legitimate combatants are not entitled to any access in any US court.
13. The Second Amendment shall be read as written. The right of individuals to keep and bear arms shall not be infringed.
14. The rights and privileges enumerated in this Constitution are restricted to US citizens and legal residents only.
Thoughts?
March 26, 2010, 1:28 pmJeff says:
There are two methods to amend the constitution. “The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.”
March 26, 2010, 1:31 pmhttp://www.usconstitution.net/constam.html
Jeff says:
There are two methods to amend the constitution. “The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.”
March 26, 2010, 1:33 pmhttp://www.usconstitution.net/constam.html
Greg C says:
To further empower the 10th amendment, I’d make it 1/2 of state legislative bodies to veto any particular specific federal use of power internal to the borders of the United States, and 2/3 to permanently enjoin the federal government from a more general category of use of power. The several states would need to pass identically worded resolutions, and 2/3 of the states could later rescind their prohibition.
Furthermore, upon a signed petition by 1% of eligible voters, the people of the several states can vote by 2/3 to reserve any particular use of government power to themselves, forbidding it to the states or the federal government, and may rescind their prohibition also by a later vote of 2/3.
Neither form of measure may be used to compel the use of government power for any purpose, but may only be used to forbid the use of government power.
The phrasing needs some work, but basicly, I want the the determination of what rights and powers are reserved to the states or the people to be determined by the states or the people, not by the body that has a vested interest in maximizing the scope of their own powers.
March 26, 2010, 1:33 pmpacksaddle pilgrim says:
I ran your earlier language by an acquaintance who was among our state’s tea party organizers a year or so ago, and she in turn ran it by her group. The overwhelming response was…”It’s too complicated for anyone to understand.”
As a result of which, I came up with the following:
“Taxes levied and collected on income, in whatever form and from whatever source, shall not, in the aggregate, exceed ten per cent of the amount of such income.”
I call this the “Ten Percent Solution,” and believe it to be superior to any attempt at specific constraints on the Federal government generally or the Congress in particular. It’s the easiest to understand, and, therefore, the easiest to focus on and the easiest to sell…just as “Kill the Bill” or “Kill the Deal,” is a whole lot better than this, “repeal, reform, replace” stuff.
I envision supportive bumper stickers reading “10%: It’s good enough for God,” and the like (I’m also fond of
“Starve the Beast”
and
“Why does the government need
more money than God?”)
In case you’re wondering, I don’t consider myself religious and haven’t attended church regularly for many years. But if we’re serious about taking the country back, it’s going to require a religious type of fervor and staying power.
March 26, 2010, 1:34 pmJeffrey Simno says:
Might I suggest the proposed Federalist Restoration Amendment be thrown out entirely and instead be replaced by a proposed
FREEDOM OF LIFE AMENDMENT
Congress shall make no law mandating, regulating, or prohibiting the right of the people willfully to engage or willfully to refrain from the engagement in activities that do not directly cause harm.
Seems a lot simpler, more endurable, and reflects the individual rights the Founders wanted to protect. In this way the Commerce Clause of the Constitution would be allowed to keep the teeth of its original intent without allowing the Federal government to expand its reach beyond the scope of that original intent.
I’d love constructive feedback on my proposed Amendment to the Constitution. Thanks!
March 26, 2010, 1:34 pmmyth buster says:
I like the idea of minority repeal powers, but 10% is too small. It’s too easy for subversives to hijack 10% of the Congress. Now, 1/3 is much more reasonable.
March 26, 2010, 1:34 pmJeff says:
There are two methods to amend the constitution. “The second method prescribed is for a Constitutional Convention to be called by two-thirds of the legislatures of the States, and for that Convention to propose one or more amendments. These amendments are then sent to the states to be approved by three-fourths of the legislatures or conventions. This route has never been taken, and there is discussion in political science circles about just how such a convention would be convened, and what kind of changes it would bring about.”
March 26, 2010, 1:35 pmhttp://www.usconstitution.net/constam.html
DangerMouse says:
You guys don’t understand the mentality of libs. No matter how you define “commerce,” a Supreme Court full of libs will let them do anything. No matter how limited their power is to tax, a Supreme Court full of libs will let them tax in any manner they choose – including requiring an individual mandate to buy goods or services.
It’s not about definitions, because if it is, you’re just playing by their rules. It has to be a structural change that they can’t screw around with, to take it outside of the Courts. If it goes before a Court, you’ve already lost.
I’d be interested in reading proposals for serious structural change that has the effect of limiting the power of government. If its as easy as repealing the 16th and 17th amendments, then get serious about that. But don’t delude yourself that playing word games with libs on the Supreme Court will get you anywhere. It won’t. They’re Humpty Dumpty – words can mean ANYTHING to them.
March 26, 2010, 1:36 pmAbel says:
I really like Billy Brown’s idea (180). My only fear is that with this approach too many things will be repealed, if that is even possible. :)
Replace the “Councilor” with “Governor of the State” and You have someone who should be much more pragmatic than the “Councilor”. The Governor has to run the state. He/She will be concerned not with repealing the laws (thus justifying his/her existence), but, with removing personal headaches that prevent running of the state.
I would argue that the lack of “executives” is one of the fundamental problems with Congress. None of them actually have to live with the consequeces of their laws. Governor has to live with the consequences of *every* federal law that ever passed and affects the running of the state. Hence, it is the executive officer that needs the power to repeal the federal law and regulations.
More precisely, the governor needs line item veto power. It is a more precise way to deal with problems and not a sledgehammer.
Abel.
March 26, 2010, 1:39 pmBrian John Murphy says:
Let’s fix as much as we can. If this is too much to swallow in one Amendment, let’s pass a package of 10, as we did with the Bill of Rights:
1. The legislative power of Congress shall not be construed or interpreted to include the mandating, regulation, prohibition or taxation, in any form, of the private health insurance of any person. The legislative power of Congress shall not be construed or interpreted to require the purchase of any service or product by any Person. The Legislative power of Congress shall not be construed or interpreted to regulate commercial transaction confined within one of the several states, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities, services or physical materials from outside that state before the commercial transaction is made, or whether its regulation or prohibition is part of a comprehensive federal regulatory plan.
March 26, 2010, 1:40 pm2. All Persons have the right to ownership of real property except in cases of eminent domain or due process of law in adjudicating a felony or a suit in the civil courts. Eminent domain is applicable only in cases where the public shall have use of the property taken, and when the taking of such property is by the government. Eminent domain shall not apply if the condemned property is to be conveyed to a private Person, Persons, or commercial or non-profit companies or combinations of any kind in which the Government of the United States, the individual state, county, municipality or borough has less than 65 percent equity, either individually or collectively, nor shall it apply if the property is to be used for the private benefit of any company, combination of Persons, or commercial ventures of any kind. Persons improperly deprived of property under eminent domain may sue the condemning government and recapture no more than three hundred percent in damages.
3. Eminent domain shall be construed as applicable if property is taken for the construction of public housing. The use of private contractors to develop property taken in eminent domain shall not be construed or interpreted as a commercial venture or other prohibited taking, if the final disposition of the property is for the direct use of the People. Contractors or other entities hired to improve taken properties may not have a commercial interest in said properties after the conclusion of the improvement. Companies may not be paid by the deeding or transfer, in any form whatsoever, of equity in the taken property.
4. All increases in the pay of Congressmen and Senators shall apply no sooner than on the tenth anniversary of the enactment thereof by Congress.
5. Members of Congress and the Senate shall pay the full contribution towards Social Security, said contribution to be calculated on all pay, public or private, received by said member and as according to law for all other persons with regard to retirement accounts.
6. Pensions for a member of the House of Representatives or of the Senate shall not exceed fifty-five percent of the highest amount paid in one calendar year to said Member or Senator, not including allowances paid for the ordinary or extraordinary expenses of the Member or Senator. A Member or Senator shall be vested in pension rights on the sixteenth anniversary of that Member or Representative’s first day of service. Allowances paid to Members of the House or Senators shall not exceed fifty percent of said member or senator’s salary.
7. Persons impeached and convicted by the Senate of The United States of America, or convicted of Treason in the Federal Courts, are forbidden election or appointment to any position of trust or responsibility in any branch, department or agency of the United States Government and are forbidden any pay or allowances from the same, excepting Social Security, medical benefits, and other payments and allowances offered to any other Person not serving in the government.
8. All laws enacted by Congress shall apply to all Persons with equal force.
9. Article One of this Constitution is to be construed and interpreted to mean that no bill may be deemed enacted by either house of Congress unless the vote is made in public, that the bill receives fifty-one percent or more of the votes cast, and the record of the votes cast is recorded in the public Journal of that house. The section shall not be construed or interpreted to mean a repeal of the rules of each house regarding debate, voice votes, votes by consent or voting procedures or instrumentalities.
10. States ratifying or having ratified the Constitution of the United States retain all the rights of sovereignty as enumerated in this Constitution. No State, having at any time since the ratification of the Constitution by a majority of the thirteen original United States, and having received payments of any kind, services, including defense, or improvements paid for by the Treasury of the United States at any point in time, past, present or future; may leave the Union of the several States.
JRC says:
How about:
The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states shall not include the power to (1) mandate the purchase or use of any good or service or (2) mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power of that state, regardless of the activity’s economic effects outside that state, whether the activity employs instrumentalities from outside that state, or whether the activity’s regulation or prohibition is part of a comprehensive federal regulatory scheme.
March 26, 2010, 1:48 pmDod says:
I hate to say it but I think the use of the word “insurance” is problematic. It seems like it leaves the door open for Clintonian word games (“It’s not insurance. It’s coverage.” Or “It’s bulk purchasing.”). I think something less clearly tied to a product category would be more durable. I’m at a loss for better phrasing though.
March 26, 2010, 1:48 pmThales says:
“The legislative powers of Congress herein granted shall not be construed to include mandating, regulating, prohibiting or taxing health care services; nor shall the legislative powers of Congress herein granted extend to the imposition of a tax, whether on income or otherwise, on any person as a penalty for the failure to purchase a health insurance policy; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.”
A few suggested edits are above–I’m not sophisticated enough to show them in redlined form. To be clear, while I have some strong sympathies with libertarianism and a free market as a strong default position (and I enjoy your books and other work), I do not support your goal, I do not think your amendment will or should pass, and I agree with Jack Balkin’s view that the present health care reform legislation does not present significant constitutional problems. As an academic matter, however, for the sake of making it clearer and more bulletproof, I think you want to address the commerce clause issues and the taxation issues in separate clauses.
March 26, 2010, 1:50 pmcubanbob says:
A great base from which to start with. I would add the following (in no particular order of importance)
1-incorporate the constitution in all of its parts to the states.
2-eliminate the practice of gerrymandering and replace it with representation of defined legal entities such as towns, cities and counties.
3-that no governmental entity can exclude itself from laws, ordinances and regulations and that it passes and that they are subject to the fines, penalties and punishments that these laws, ordinances and regulations and those officials who violate them personally or instruct the the entity to violate or ignore them be themselves subject to the penalties.
4-define the powers of the federal, state and local governments and by extension everything else is the innate right of the people.
5-clarify the takings clause to specifically define the right to take only for what is specifically permitted use by government as per point #4
6-define a US citizen to be a person who has at least one parent who is a US citizen or a parent who was qualified to apply for US citizenship at the time of birth.
7-( a tricky one to be sure) to state that the United States is a capitalist nation, that government has no authority to redistribute income as social policy but only to the extent necessary to conform to point #4
8- limit the vote to US citizens in full possession of their civil rights, who are not wards of the state, delinquent in their tax obligations and in the case of state citizens those who are not net taxpayers. And has been stated by others, eliminate the 17th amendment.
9-other than convicted criminals (those who are not possessing full civil rights), those who have been properly found to be insane, mentally incompetent or drug addicted to have the innate right to self defense.
10-that no governmental entity or entity partially funded by government may restrict, prohibit or sanction free speech.
11-notwithstanding that the United States is a customs and a currency union as well as a free trade zone all individuals are innately permitted to posses, own, or purchase any currency or specie they desire and be able to contract in or pay debts with those said currencies or specie if the contracting parties are agreeable. That no government can void a contract that was legally enforceable at the time of its execution.
12-that no government can tax wealth and can only tax revenues that have not previously taxed, that inheritances cannot be taxed simply because they are an inheritance but only to the extent the inherited wealth is deemed taxable for taxes unpaid at the time of its accumulation.
13- That the United States and the States and their sub-divisions cannot tax revenues that are not derived entirely from within their respective borders.
14-That no State or the United States prohibit an individual from purchasing, possessing, selling or otherwise enjoying a good or service that is legally permitted in any State of the United States (amplifying point #12)
15- not withstanding the above quoted point, states cannot withhold from the federal government their apportioned taxes to the federal government for its defined core responsibilities and for its outstanding debts.
16-that the constitution applies equally to all who reside in the United States(no less than full equality under the law except for those who have been found to have restrictions on their civil rights for reasons other than their mere existence) and that it does not apply to pirates, enemy combatants (other than rights granted by treaty) or anyone one not a United States citizen outside the boundaries of the United States and that the United States or the various States cannot cede their expressly delegated powers and authorities not withstanding any treaty nor those rights inherit to the people.
17-clarifying that freedom of religion is just that and that also means that no state religion shall be created, established or otherwise imposed and that term includes any secular version of a religion defined as an ideology (other than point #7), belief system or its equivalent and that any government in the US may if the people in their majority through their representatives permit religious expressions provided they do not endorse or otherwise promote a specific religion.
I am not a lawyer, don’t claim to play one on TV and have no special knowledge or expertise but simply offer the above as a point of discussion.
March 26, 2010, 1:50 pmMike McDougal says:
Real men always use the Oxford comma.
March 26, 2010, 1:52 pmJames Strickler says:
Randy, thanks for making this effort. While I can quibble about some of the exact language you use, I think the greater problem is that this amendment leaves too many other avenues for the expansion of federal power still open. Rather than listing them, I will deal them below with an alternative amendment. For some, the length of my effort will demonstrate the futility of this project. I prefer to view it as a first very rough draft for a solution that simply must be much more comprehensive than what you have proposed:
THE FEDERALISM RESTORATION AMENDMENT
March 26, 2010, 1:54 pmThe federal government of the United States of America is a government of limited, enumerated, delegated powers, meaning that it does not possess, nor can it exercise, any powers that have not been plainly assigned to it by the people of the United States, either in the first formation of this Constitution or through subsequent amendment; the assumption of any greater powers is an unconstitutional act. The powers of the federal judiciary shall be limited to judging whether or not the requirements of the United States Constitution and all treaties and laws legitimately made pursuant to it have been complied with; and such judgments shall be based on a plain reading of these texts, without giving any consideration to social needs or consequences. Any past actions taken by the federal judiciary in violation of this amendment are hereby void. The powers of the federal executive shall be limited to those specifically enumerated in Article II of this Constitution and to the execution of laws enacted by Congress in compliance with this Constitution, including all limitations within this amendment. Any past actions taken by the federal executive in violation of this amendment are hereby void. The powers of Congress shall be limited to those enumerated in this Constitution and to other actions which are not merely useful, helpful, or convenient for carrying out those enumerated powers, but which are so essential, necessary, and proper that the enumerated powers could not be exercised without them. No treaty shall be valid which extends the powers of Congress beyond those powers enumerated in this Constitution. Any past actions taken by Congress in violation of this amendment are hereby void. All other legislative powers are retained by the individual states as limited by the people of those states individually; these state police powers include the regulating of the health, safety, welfare, and morals of all persons within the state. The legal acts of no state shall be construed as binding upon another state, except when mandated by Congress in the legitimate exercise of its enumerated powers. The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the purchase of any product or service by any person (except when placing tariffs on goods entering the country); such mandates, regulations, prohibitions, and taxes are among the powers retained by the states. Nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s direct or indirect economic effects outside the state taken individually or in aggregate, whether it employs instrumentalities created in whole or in part in another state, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.
TalkingHead says:
Randy:
I agree with those posting comments that suggest the repeal of the 17th Amendment. Your proposed amendment requires judicial policing of federalism and I just don’t think Article III judges are equal to the task. You know that better than anyone having litigated Raich. It gets down to the sociology of the judiciary and the lawyering profession. Most lawyers — the group judges are drawn from — are statists, whether on the left or on the right. They’ll gut your amendment just like Darby gutted the 10th Amendment and reduced it to nothing more than a tautology (granted it might have been a tautology if original meaning of the powers of Congress governed, but certainly not after the New Deal court destroyed American federalism).
So how to get around the fact that the 17th Amendment would be hard to repeal?
First, you can “buy out” the existing senators in the same way that the 22nd Amendment bought out Democrats who did not want Truman being term limited — set the effective date for some (somewhat) distant point in the future. The futurity will tend to create uncertainty about political stakes and may allow us to get back on track.
Second, it’s going to be no harder to repeal the 17th Amendment than it would be to add your proposed draft language.
Repealing the 17th Amendment alone, however, won’t be enough. There were some (arguably) legitimate gripes about state legislative election of U.S. Senators, e.g. the Constitution itself did not provide a means of breaking deadlocks in state legislatures — that mechanism had to be provided by congressional statute. You could build that tie-breaking measure into the amendment. Also, the 17th Amendment did not prohibit the Oregon system of using straw polls. These would need to be prevented.
Federalism will fare better when (effectively) policed by a national legislative process that includes a real say for the states-as-states. Judicial enforcement of federalism appropriately plays a role, but it’s only going to be as an emergency brake.
March 26, 2010, 1:55 pmDean says:
May I suggest replacing “…the private health insurance of any person”, with “…any lawfull contractual obligations between persons, nor shall any persons be required to enter into any contractual obligation except by mutual consent of the parties envolved or in fullfillment of other obligations, freely undertaken”. My intention is to re-enforce all “lawfull” contracts; ones not undertaken by force or fraud and not containing provesions prohibeted by the interests of the states in supporting public morals or order. What interest those may be is left to the political prosses of the several states or to that of the United States. We also need to prohibit any mandated contracts by either the United States or the several states, except as may be usefull for lawfull regulation of actions which no person is obliged to undertake.
March 26, 2010, 1:57 pmThales says:
Note that if Dean’s and others’ suggestions are adopted, the federal bankruptcy code would need to be repealed; would we reintroduce debtor’s prisons?
March 26, 2010, 2:01 pmAllan Walstad says:
Sunsetting all laws and requiring supermajorities to pass new legislation (particularly taxes and spending) would be another structural damper on federal hyperkineticism without the disadvantages of specific Dos and Don’ts. It would make political buy-offs more difficult if you’re trying to get that 261st or 290th vote in the House, rather than just the 218th.
March 26, 2010, 2:03 pmThales says:
Cubanbob would enact Mr. Herbert Spencer’s Social Statics.
March 26, 2010, 2:04 pmRandy Barnett says:
I am closing comments on this proposal and opening comments on a revised and quite different proposal here.
March 26, 2010, 2:05 pmRandom Nuclear Strikes » RNS Quote of the Day, 03/26/10 says:
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