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In Today's WSJ: The Case for a Federalism Amendment
Last week I was on the Glenn Beck Show urging that state legislatures petition for a convention to amend the Constitution rather than passing purely symbolic "sovereignty amendments." You can watch the 2 minute segment here. Although typically called a "constitutional convention," this term does not appear in Article V, which states "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." I think "amendments convention" is a more accurate term that distinguishes it from "constitutional conventions"--such as are convened in states specifically to rewrite state constitutions in their entirety. Of course, before becoming part of the Constitution, any amendment proposed by an amendments convention would still need to be ratified by three-quarters of the states.

In The Case for a Federalism Amendment, in today's Wall Street Journal, I suggest that that states petition for a convention to propose an amendment repealing the 16th Amendment authorizing an income tax. Such a repeal would result in the Congress imposing a national uniform "excise" or sales tax as authorized by Article I, Sec. 8.

Alternatively, states could include the repeal of the 16th Amendment in a more comprehensive "Federalism Amendment" such as this:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.


Except for its expansion of Congressional power in Section 1, this proposed amendment is entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers and reaffirms the power of courts to police this boundary and protect individual liberty.

Section 1 of the Federalism Amendment expands the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause. Interstate pollution, for example, is not "commerce . . . among the several states," but is exactly the type of interstate problem that the Framers sought to specify in their list of delegated powers. This section also makes explicit that any restriction of an enumerated or unenumerated liberty of the people must be justified.

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment. And a state is free to enter into compacts with other states to coordinate regulation and enforcement, subject to approval by Congress as required by Article I.

Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments. Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.

Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power. This section also requires that the Constitution be interpreted according to its original meaning at the time of its enactment. But by expanding the powers of Congress to include regulating all interstate activity, the Amendment greatly relieves the political pressure on courts to adopt a strained reading of Congress's enumerated powers.
By coincidence (or is it?), in yesterday AEI's journal, The American, there appeared The Coming of the Fourth American Republic by James V. DeLong. In a very lengthy and interesting essay, DeLong identifies what he calls the "Special Interest State" as the Third American Republic. Near the conclusion, he discusses how the Special Interest State might be ended, including the following:
The Constitution has a residue of the original alliance-of-states polity that has never been used. Two-thirds of the state legislatures can force Congress to call a constitutional convention, and the results of that enterprise can then be ratified by three-quarters of the states. So reform efforts could start at the grassroots and coalesce around states until two-thirds of them decide to march on the Capitol. There is already a lively movement along these lines. On the other hand, the states are no paragons, in that the model of the Special Interest State reigns triumphantly there as well, so a few comments about pots and kettles could be made. Realistically, though, organization from the bottom up is a real possibility.
Read the whole thing.