pageok
pageok
pageok
Randy Barnett's "Federalism Amendment":

Co-blogger Randy Barnett has an important Wall Street journal op ed arguing for the enactment of a "federalism amendment" limiting the powers of the federal government. In an interesting parallel with constitutional reformers on the left such as Sanford Levinson, he suggests that the amendment be enacted through a convention of the states, as allowed under Article V of the Constitution. Randy recognizes that a constitutional amendment severely limiting Congress' own powers is highly unlikely to get two-thirds support in the House and Senate:

In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."

While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.

Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds.

Randy urges the states to enact the following amendment:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

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

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

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

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

I generally favor the substantive provisions of Randy's amendment; I too have argued for stronger limitations on federal power than those imposed by today's Supreme Court, which is generally content to let Congress regulate and control virtually any activity, no matter how remote from interstate commerce. However, I would not support Section 4, because on the whole I would rather that the federal government be funded through income taxes than through sales taxes or tariffs. Tariffs damage our economy for well-known Econ 11 reasons, while sales taxes are less transparent than income taxes, and tend to hide the true cost of government from voters. My other reservation is about Section 2, which takes away from Congress the power to "regulate or prohibit any activity that takes place wholly within a single state." The key words here are "wholly within a single state." If interpreted very literally, the scope of Congressional authority might not be diminished at all. Almost any activity involves moving at least one molecule of matter across state lines. Hardly anything is wholly within one state. If, on the other hand, "wholly" is interpreted in a way less favorable to federal power, it might not be possible for Congress to regulate transboundary pollution generated by industrial activity. Presumably, Randy doesn't intend such an outcome, since he himself wrote about the need for congressional intervention in that area in his excellent book Restoring the Lost Constitution. But it is a plausible interpretation of his proposed text.

My biggest disagreement with Randy, however, is that I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that "States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people." In reality, however, many state governments have a great deal to lose because they receive massive amounts of federal money(equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy's proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have "nothing to lose" from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.

As Randy points out, any constitutional amendment adopted by his proposed convention of states would still have to be ratified by three-fourths of state legislatures. Given how much many state governments benefit from feeding at the federal trough, I doubt that such broad support can be obtained.

On the other hand, Randy may be right to suggest that the amendment be taken up by the "Tea Party" activists as a rallying cry. Even if it never comes close to being enacted, it could help with political mobilization. In much the same way, the Equal Rights Amendment movement once helped galvanize feminists and the abortive movement to pass an anti-gay marriage amendment helped mobilize social conservatives.

Fear_Alike:
Still too risky, and complex.

First, it would clearly prevent any national regulation of pollution that crosses state lines.... and while our current pollution debates are now political and clubs against capitalism, reasonable pollution regulation at the national level is not a bad idea.

Instead, I would like to enact an amendment that permits the states to call for a convention to approve an amendment, that *can* be limited to the subject matter or even better, specific text of an amendment, approved by the state legislatures.

Or even better -- if 2/3 of the state legislatures pass a resolution for an amendment, and all those legislatures pass the resolution using the identical amendment language, Congress must send it out to the states for possible ratification by 3/4 of the states.
4.23.2009 3:20pm
Kent Scheidegger (mail) (www):
Section 5 is very strange. The second sentence confirms the original understanding view of constitutional law. The first sentence gives judges a roving commission to strike down any law they disagree with, which was the whole purpose of the "living Constitution" view in the first place. To give federal judges an unlimited veto power over all state legislative is a bizarre thing to find in a "federalism amendment." That is not federalism as I understand the word, but the exact opposite.
4.23.2009 3:28pm
Brett Bellmore:
So, what happens when the required number of states petition Congress for a convention, and Congress ignores them? Is the Supreme court really going to issue a writ of mandimus? Or just cop out, and call it a "political question"?
4.23.2009 3:29pm
Kent Scheidegger (mail) (www):
Should have been "all state legislation".
4.23.2009 3:30pm
Brett A. (mail):
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.


Does that mean that the US Congress could force a quarantine on a state if they decide they don't want to play ball?

This is all very vague.


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.


Interesting. Does this mean that the US Congress couldn't allocate funding to actually enforce any federal laws within the states as long as it didn't constitute "violent insurrection"?

This would basically amount to the gutting of the federal government, which is partially why almost no one in even most of the state legislatures would be stupid enough to support this amendment.

For that matter, these idiots really need to get out of the 19th century. The time of predominant state identities is long past, and we live in a national economy that requires national laws and law enforcement.


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.


This is extremely vague, and most likely Congress would do end-runs around it.


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.


It would help if these idiots actually read some economic history. As the OP pointed out, this would most likely result in a massive rise in tariffs and sales tax on the federal level, since that is how governments drew their revenue before the rise of state organizations capable of collecting income tax.


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.


What does this even mean?
4.23.2009 3:30pm
PIzza Snob:
I don't think it'd be fair of me to comment on the substance of this without more time to really ponder the unintended consequences that something so monmumental would surely have.

A more achievable provision might seek to limit federal authority to regulate intra-state contracts (which are decidedly more removed from interstate commerce than the pollution you're concerned about). We could kill the minimum wage and the defense of marriage act in one swoop.
4.23.2009 3:31pm
ChrisIowa (mail):
It's sad that we have to pass a Federalism Amendment to a Constitution that gave the Federal government "a few well defined powers" that were regarded to its authors as too few and well defined to constitute a threat to the people.
4.23.2009 3:31pm
Assistant Village Idiot (mail) (www):
Brett - Let's try it first. Don't borrow trouble.
4.23.2009 3:32pm
PatHMV (mail) (www):
I'm afraid I don't think much of the proposal. First, it's aimed more at promoting libertarianism rather than Federalism (some of the provisions would increase the power of federal courts to overrule state laws. Second, the language is not well-drafted, leaving far too much ambiguity (which liberties are "rightful?"). Third, it stands not a snowball's chance in hell of ever passing, in any form.

Section 3 is particularly not well thought-out. The powers enumerated in the Constitution today INCLUDES the general appropriations power. The provision doesn't at all change the list of enumerated powers, and the courts have upheld vast discretion in Congressional spending as being included in the powers enumerated by the Constitution.

Oh, and I think the second clause of the first provision is dangerous, because its adoption would imply that Congress COULD violate the Bill of Rights through the use of its enumerated powers in the absence of such limiting language.

All in all, a tremendous waste of time, sadly.
4.23.2009 3:35pm
JE:
Yes, it seems that there is a crucial, and unclear to my non-lawyer eyes, distinction between an "activity", which may avoid federal oversight by staying wholly within a state boundary, and the "effects" of the activity, which may cross state boundaries freely without triggering federal oversight.

While certain abstract human activities may naturally lend themselves to this division, others do not, and the natural world is ignorant of them.

So if I move snow from one area to another to improve a ski slope, and that causes a river to dry up several months later, would that give cause for federal regulation?

If I dumped toxic chemicals in a river that flowed across a border? Or in the ocean within my borders? Or allowed year-round hunting on every wild animal that sets foot within my borders?

If I stood on one side of a border and fired a gun across it?

If a state government conducted its business over the Internet, which just so happened to route intrastate traffic across the border?
4.23.2009 3:39pm
Ben S. (mail):
I love the idea in general. If I could change three things about the Constitution, I would (1) narrow the scope of federal power, (2) confine interpretation of the Constitution to its original meaning, and (3) remove the Senate so that the Legislative Branch can truly reflect representation of the people. (The idea that every state, no matter how small, gets two senators has never made sense to me, and is an anti-democratic color to the most democratic branch.)

I am uneasy about modifying the tax system away from income tax. Relying on sales tax would not only obscure the cost of government, it would deter people from spending (and would therefore act as a constant break on our economy), and, finally, would result in a somewhat unpredictable flow of funds into the government. I'd rather see a flat tax that is fixed to a certain percentage, and force the federal government to shrink its budget to meet that amount rather than the other way around.
4.23.2009 3:40pm
CJColucci:
Back when people were arguing that this is what the current Constitution, properly understood, really, truly means, I suggested that the argument was, in practical terms, pointless, because if courts started interpreting the Constitution that way, constitution-sized majorities would rise up and undo their work.
Whatever anyone thought in 1789, almost no one now would support a legal regime in which an Ohio factory could belch posion into the air, wreaking havoc in Kentucky and Indiana, while the federal government could do nothing about it. If that started happening, you would get amendments explicitly empowering the feds to do what we now read the commerce clause as empowering them to do.
Neither this federalism amendment nor anything like it will ever come close to passing. The people do not want it and will not be persuaded to accept it.
4.23.2009 3:41pm
PatHMV (mail) (www):
I agree with other commenters that Section 5, as written, actually codifies the Living Constitution. What's a reasonable exercise of liberty? Since liberty today includes the right to an abortion, the "time of ratification" clause would ensure that no state legislation more restrictive of abortion than currently allowed by the Supreme Court would be viable.

I'm exceedingly surprised and disappointed at the abysmal quality of this proposal. I expect far, far better from Barnett.
4.23.2009 3:42pm
JE:
At what point does the "effect" leave the penumbra of the "cause"?
4.23.2009 3:43pm
geokstr (mail):

"The states got some $450 billion in federal funding in 2008..."

Come on, this is not real money.

It's just the federal government's authority either to print money and/or borrow it from future generations that in no way will ever be able to pay it back, that makes these so-called "funds" available for the states to "spend" money that doesn't exist to begin with.

Government has even made income taxes as transparent as they could, via withholding. When I practiced as a CPA 25 years ago, I'd have average taxpayers even back then tell me after I calculated that they would get a big refund - "Isn't the government great to give me all this money back?". And that was when government spending was a small fraction of what it is now. Our schools have made the average citizen so mathematically and economically ignorant that they don't have a clue what government really costs them.

There are so many other taxes buried in so many places now that are hardly even visible. We have state sales taxes already buried into most products, then there is the corporate tax that is actually paid by everyone but corporations, property taxes are buried in the house payment, while renters don't even see property taxes that are part of their rent, gasoline taxes, tobacco taxes, liquor taxes, etc, etc, ad nauseum.

The only way to start a taxpayer revolution is abolish all taxes at all levels, including withholding, add up all government spending, apportion it however you wish to all taxpayers, and send them one annual bill due in 30 days.

But that is as likely to happen as these amemdments.

And a constitutional convention, depending on who has the balance of power when it actually happens, could lead to other types of amendments that a lot of us may not like, like rescinding the second amendment and making our first amendment closer to Canada's idea of free speech, and lot of other unpleasant changes.

The present system or some variation will continue until something so cataclysmic happens that the human race will need to reconsider the entire relationship between the people and the government.
4.23.2009 3:44pm
JRL:
I like this idea, and I am glad to see so much criticism of the specific proposal. While there may be some revisions in order, I think this is a great idea. Even if it won't go anywhere, I hope it starts a big debate about the size and power of our federal government. I am forwarding the article to my friends and family.
4.23.2009 3:50pm
Monty:
I agree with the motivation behind the proposal, and would love to see the constution amended to that effect. Beyond whether the language is well crafted, I have a much deeper concern. Once a constuttional convention is called, with this amendment in mind, what assurance do we have they the convention wont adopt other, les libertarian amendments? Could the delegates ban flag burning and gay mariage while they were at it? or repeal the 2nd amendment? Or widen the authority of states to employ capitol punishment? I realize that anything proposed would require ratification, but the idea still unsettles me...
4.23.2009 3:50pm
Gabriel McCall (mail):
Whatever anyone thought in 1789, almost no one now would support a legal regime in which an Ohio factory could belch posion into the air, wreaking havoc in Kentucky and Indiana, while the federal government could do nothing about it.

Kentucky, or citizens therein, could sue Ohio or the factory for pollution as a common-law trespass, nuisance, or negligence. The case would go to the Supreme Court. You don't need the EPA nor the Commerce Clause for that; it's handled in Article III.
4.23.2009 3:53pm
PatHMV (mail) (www):
Gabriel... so you'd prefer judges to make policy decisions instead of our elected representatives?
4.23.2009 4:01pm
wolfefan (mail):
Not really on topic, but thanks to Ilya for commenting on this proposal and giving us the opportunity to comment upon it as well. I understand why many Conspirators close comments, and many times I think it is no great loss. However, Randy often posts ideas or proposals that would generate a lot of helpful and non-flaming, non-trollery response. When comments are closed on these kinds of posts it diminishes (IMHO) the value of Randy's original post, as there is no opportunity to refine the ideas or clarify them for those of us who operate at a different level of understanding.

Not a complaint (or a sermon,) just a thought. Thanks again, Ilya.
4.23.2009 4:03pm
Anderson (mail):
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

So this doesn't re-authorize racial segregation, because .... the proposed amendment would create its own article of the Constitution?

I'm unclear on how this works, obviously.
4.23.2009 4:11pm
Brett:
Gabriel... so you'd prefer judges to make policy decisions instead of our elected representatives?


How in God's name do you get that out of what Gabriel just said? How in God's name is the adjudication of a common-law tort claim a "policy decision"?
4.23.2009 4:13pm
Guest14:
There's little reason to believe that the repeal of the 16th Amendment would result in the federal income tax being unconstitutional.
4.23.2009 4:16pm
Thorley Winston (mail) (www):
Besides some of the language issues with how the amendment(s) is/are worded, I think that part of the problem that the author is trying to accomplish multiple things at once: limit Congress' use of the commerce power, limit Congress' use of its spending power (although I don't this amendment actually does it), repeal the income tax, and encourage judges to be more active in striking down laws that infringe on a "rightful exercise of liberty" (whatever that means). There's certainly a constituency for each of these things individually but I'd wager the constituency for all four them is much smaller. For example, a lot of the same people who want to reduce the power of the federal government over States also want to reduce the power of federal courts over States in many areas. Libertarianism after all isn't the same as federalism and sometimes the two may even be at odds.

Also I have to say that I'm not a big fan of relying on constitutional arguments to negate policies I disagree with. At the end of the day, courts are going to give the legislative branch a wide degree of deference in the public policy arena and elected officials are generally going to enact the policies that they either think that the voters want or are best for their constituents. Simply asserting that "the politicians/public doesn't understand the TRUE MEANING of the Constitution" doesn't seem to work very well so long as the public wants what it wants. I don't see any workable way to limit government that doesn't rely on building a constituency for limited government through policies that build a preference for limited government and growing that constituency until it becomes a plurality of voters. That means winning the battle at the ballot box rather than the courts.
4.23.2009 4:21pm
PatHMV (mail) (www):
Brett: What's the liability standard? At what level of particulate count does a contaminant become a tort? Presumably adding 1 part per trillion of, say, sulfuric dioxide to the air of Kentucky would not be a tort, while perhaps adding 1 billion parts per trillion would be. The courts hearing the tort cases would have to determine where exactly the line is. That's a policy call, ultimately, no matter who makes it.

It's not a tort for your neighbor to smoke in his backyard; the amount of smoke is too small to constitute a legal "nuisance" to you and your property. It would likely be a tort for him to burn several large barrels of oil in his backyard, because that would put enough smoke on your property to constitute a legal nuisance. Somewhere between the amount of smoke from one cigarette and the amount of smoke from 10 barrels of oil is the dividing line between tort and non-tort. On day-to-day, normal actions between individuals, it's often ok to let courts make those decisions, without forcing it too far to define the dividing line. But at a larger scale, with major segments of the economy impacted? Then those dividing points become important, major policy decisions.
4.23.2009 4:25pm
Ben P:

Gabriel... so you'd prefer judges to make policy decisions instead of our elected representatives?



How in God's name do you get that out of what Gabriel just said? How in God's name is the adjudication of a common-law tort claim a "policy decision"?



I take it you haven't studied environmental litigation much? Environmental litigation is rife with these sort of cases, it's exactly the reason people started passing statutes to manage this sort of thing.

Let's review how this works.

Factory in Indiana produces noxious gas which blows over into kentucky, killing the livestock and poisoning the land of Farmer A in kentucky.

Farmer A is angry, and wants to file suit. Does he file in Kentucky or Indiana? is there jurisdiction in Indiana? what about substantive law? Are we just going to start making up federal common law for nuisance cases in federal courts? or what about if the damages is below the statutory threshold? Assuming common law nuisance actions this is all up to courts.

Besides that, the real issue is damages.
Does the farmer just get the damages done? IE the factory damages his land, now he gets the difference in value between the lower value land and the higher value land? or does he get something more for the loss of his livliehood?

WHat about the future? Damages only mitigate past harms, they don't mitigate future harms, so what happens if more pollution further reduces the value of the farm next year? Are we going to keep requiring the farmer to file suits ad infinitum? Or is the court going to grant an injunction. Presuming the factory is engaging in economically useful activity, that's a tough policy decision, can we force the factory to shut down completely because of the nuisance it's creating? or is there a way to force them to remedy the nuisance for future operations. These are all very heavy policy questions.


If you are seriously arguing that placing environmental litigation in the courts as common law actions doesn't place very serious policy questions solely in the hands of judges, you just haven't thought about it much.
4.23.2009 4:26pm
MarkField (mail):
I find it peculiar that Prof. Barnett would devote so much energy to revisions which would restore the "lost world" of 1790, instead of trying to evaluate what revisions would best suit the values and interests of those of us alive today.
4.23.2009 4:28pm
DennisN (mail):
@Monty:


Or widen the authority of states to employ capitol punishment?


I think the states should have unlimited power to enact Capitol punishment.

Sorry, couldn't resist.
4.23.2009 4:28pm
DangerMouse:
I'm exceedingly surprised and disappointed at the abysmal quality of this proposal. I expect far, far better from Barnett.

Agreed. This amendment is terrible, particularly because it isn't clear what exactly it means. It is a gift to judges who want to go ballistic in interpreting around it. Practically speaking, I don't think it would have any effect at all, because the language is so open-ended.

If the problem is that Congress over-regulates on the basis of the commerce clause, and that Judges are too deferential to that regulation, then the solution is to attack the Judges and Congress. Limiting their power by repealing the Commerce Clause and the Necessary and Proper Clause would help. Attacking the Judges through various means (term limits, increased impeachment, etc.) would help also.

What to replace the Commerce Clause with is trickier, since any broad language would eventually be used to over-regulate again.
4.23.2009 4:37pm
Brett Bellmore:
The amendment fails to address what is perhaps THE critical failure point of the Constitution: The judges who decide the constitutionality of federal acts are chosen at the federal level. "No man should be the judge of his own case.", but getting to nominate and confirm the judge of your own case doesn't work out much better.

The Constitution already limits federal power quite severely, but it is being interpreted by judges chosen on the basis of their willingness to read it as allowing much that it prohibits.

The real solution is to select federal judges at the state level, so that they no longer have a systematic incentive to make rulings favorable to the federal government.

That, and Congress needs to be cut out of the amendment process entirely, amend Article V so that any amendment ratified by the required number of states with identical language becomes part of the Constitution, regardless of how it originated, and without any federal action required.
4.23.2009 4:44pm
Dan28 (mail):
Good to see that somebody here at Volokh Conspiracy has some sense, if not about the wisdom of trying to govern the 21st century United States with a 18th century understanding of our Constitution, than at least in the practical likelihood of it. I found Barnett's argument to be laughable. If you want to stop Obama's expansion of federal government power, you could have done that simply by beating him at the polls. If I recall, the prospect of a major expansion of government power was a major theme of Obama's opponent. Obama won. Trying to get an extraordinary supermajority together to amend the Constitution, a supermajority that would require two-thirds vote in at least a dozen states that voted for Obama, when Obama's popularity is still in the 60s, is absurd. It's like asking your friend to borrow a dollar, and when he refuses, asking him for five. Or, perhaps more to the point, it reminds me of SDS diehards in the 1980s, planning out every last detail of the socialist/feminist/pacifist revolution that was surely to come, indifferent to the inconvenient fact that almost nobody else in the country agreed with them.

The problem with you and Randy's views of the economy and the Constitution is that they are currently tremendously unpopular, despite the loud minority of people showing up for the tea party protests last week. Until that changes, proposing different legislative strategies, especially super-aggressive strategies that require massive popular support, is just the pie in the sky dreaming of the true ideological diehards.
4.23.2009 4:44pm
PatHMV (mail) (www):
The more I read it, the more horrifyingly dangerous Section 5 sounds. Seriously, how can a thinker of Barnett's general quality not immediately recognize the dangers inherent in using such a vague phrase as "rightful exercise of liberty?" If I didn't know better, I would have assumed that the qualifier "rightful" was inserted by a Eurocrat, or maybe a member of a Canadian Human Rights Council.

On a deeper level, the attempt to enshrine originalism (and I am a devotee of the Scalia/Thomas approach to Constitutional interpretation) is rife with difficulties. This language would have us define "rightful exercise of liberty" as it is generally understood today, while interpreting the Constitutional provisions which specifically protect certain rights of liberty in accordance with the meaning of the language of such provisions back when they were ratified. Thus, assuming arguendo that this language actually mandates an originalist interpretation of, say, the 8th Amendment, the Court would have to apply the original meaning of the 8th Amendment in 8th Amendment cases, but would then apply contemporary mores in applying the broader protection of rights protected by this Section 5.

The Court might say: "We hold that under the original meaning of the 8th Amendment, it is permissible for the state to execute a child-rapist. However, we must now review what the phrase "rightful exercise of liberty" was generally understood to mean at the beginning of the 21st century. Reviewing the court cases and public debates of the time, we see that the right not to be executed for the rape of a child was a firmly established liberty by 2010 when the amendment was ratified. Thus, while the 8th Amendment would allow such an execution, Section 5 prohibits it."

Really, really, REALLY bad.
4.23.2009 4:45pm
Han Solo:


Did you know that 39 states have ALREADY REQUESTED a constitutional convention to repeal the 16th amendment which is ONE MORE than the required 2/3rds, and CONGRESS IS IGNORING THEM and doing so unconstitutionally.

The republic is pretty much dead at this point since the federal government thinks there are no limits at all on its powers.



/I see that someone else knows this as well from comments on WSJ




The author fails to note that all 50 states have submitted over 750 applications to Congress for an Article V Convention. The Constitution requires that Congress call a convention when two-thirds of the state apply for one with no other terms or conditions. This means therefore the call is based on a simple numeric count of applying states.

The language of Article V is clear: the application is for a convention call ("on the application of...[Congress} shall call..." and therefore constitutionally the proposed issue of an application has no bearing on the matter of whether or not Congress must call; all that matters is how many states have submitted applications.

The applications can be read at www.foavc.org and are available no where else on the Internet and are photocopies of the actual pages of the Congressional Record. Under the terms of Article V therefore if 34 states submit 34 applications, Congress must call.



The author is totally incorrect in his assumption that Congress can "head off" a convention by the states proposing a specific amendment then proposing this amendment itself. As has been admitted by the attorney of record for Congress in a federal lawsuit before the Supreme Court of the United States, there are no terms or conditions for Article V other than the applications. Further it was admitted the convention call is "peremptory" a legal term meaning that Congress (or the states) have no option once the two-thirds mark is reached.


The text of the applications show that 39 states have already asked for repeal of the 16th Amendment, one more state than is necessary for ratification of the proposed amendment but again it must be emphasized as admitted by the government, it is not the amendment issue but the number of applying states that matters.

4.23.2009 4:48pm
Dan28 (mail):

On a deeper level, the attempt to enshrine originalism (and I am a devotee of the Scalia/Thomas approach to Constitutional interpretation) is rife with difficulties

What I approve of is Barnett's tacit admission of the obvious fact that neither originalism, nor any other theory of interpretation, is actually enshrined in the Constitution, which is why such an amendment would be necessary.
4.23.2009 4:51pm
john w. (mail):
It seems to me that most of the previous commenters have gotten all bogged down in the details of Prof. Barnett's proposed amendments -- and I tend to agree that some of them seem to be poorly thought out.

But isn't the key item here the concept of using the "constitutional convention " concept as a way to get around Congress and force Congress to reduce it's power -- something that it will never do voluntarily!

One thing that I didn't notice any comments on is the fact that 3/4 of the least populous states with (I assume) much less than 1/2 of the total national population could presumably force an amendment down the throats of the more populous states. Personally I don't have a problem with that, but it seems rather in opposition to the cherished "one man, one vote" concept that we have all been brainwashed into accepting as Gospel for the past 50 years.
4.23.2009 4:53pm
Christopher Cooke (mail):
I happen to think that the Civil Rights Act of 1964 was a good development. This proposed amendment, by eliminating Congress' Commerce Clause power, and replacing it with a watered-down version, may repeal that statute and I for one do not support that result.

Also, what would Section 2 do to the 13th, 14th and 15th Amendments, and Congress' power to enforce racial equality within a state? Not clear to me.

Finally, and perhaps not appropo to Professor Barnett, these "original meaning" folks tend to forget about the Civil war amendments and the significant impact they had on the powers of the states vis-a-vis the federal government. I don't think the USA was a better place when a black person was defined as 3/5ths of a human being in our Constitution, and the only debate about slavery was whether it could be expanded to new US territories. It is also clear that the post-Civil War amendments were designed to ensure we did not go back to the states' rights/slavery era.
4.23.2009 4:57pm
Dan28 (mail):

Also, what would Section 2 do to the 13th, 14th and 15th Amendments, and Congress' power to enforce racial equality within a state? Not clear to me.


My understanding is that Barnett argues that civil rights laws should be understood as flowing from the privileges and immunities clause of the 14th amendment, which was essentially interpreted out of existance in the Slaughterhouse cases.
4.23.2009 4:59pm
Foobarista:
On taxes, I sometimes wonder if something almost feudal may make sense: the States pay the Feds specific amounts, but leave the collection up to the States. Some States may raise the money with income taxes, while others will do it with consumption taxes. Tax competition and a taxation "race to the bottom" would develop, which is a Good Thing.

The model would be a king collecting taxes from fiefhold lords in the old days. The king didn't care about how the taxes were collected - just that he got his cash.
4.23.2009 5:01pm
PatHMV (mail) (www):
John, that's a problem, too. Here's Barnett:

Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds.


That seems very iffy to me. I do absolutely fear a runaway convention. Suppose this were to happen right now, with the current make-up of Congress. Would 2/3 of both chambers be willing to agree to propose this amendment? Or would at least 1/3 + 1 of them decide that their political faction's interest would be more likely to come out ahead in a Constitutional Convention? Odds are that a new Convention would result in a stalemate over major issues like abortion, defamation of religion, gun rights, you name it. I don't see the incentive for Congress to fear a convention so much that they give up much federal power.

Plus, as others have noted, the limited government argument hasn't actually had much electoral success lately, so why should we think we can get super-majority support for it?

Barnett is making the fundamental mistake of assuming that the Bill of Rights and the specific enumerations of power are the primary protectors of our liberty. He is ignoring potential changes to structural components. Historically the biggest protector of our liberties has been the careful balance of power between the different branches of government. We're much more likely to have success with a structural amendment. A "single object" requirement for bills (which many states have) would remove a LOT of the game-playing that goes on and make Congressional decisions MUCH more transparent. Or we could create a third chamber of Congress, perhaps one that meets and votes only electronically composed of several thousand people, which could not introduce or amend bills, but could only vote for or against them, AFTER conference committee of the House and Senate. Or an amendment requiring a 3/4 majority to increase spending beyond 19% of GDP. There are LOTS of possibilities, most of which would have a much better chance at passage.
4.23.2009 5:12pm
Snaphappy:
Agree that the opportunity comment on this proposal is very welcome, thanks Ilya.

My substantive question is this: What problem in real life is this radical restructuring of our government meant to address?
4.23.2009 5:15pm
Oren:

I happen to think that the Civil Rights Act of 1964 was a good development. This proposed amendment, by eliminating Congress' Commerce Clause power, and replacing it with a watered-down version, may repeal that statute and I for one do not support that result.


IIRC, the CRA was passed under the grant in the 14A, not the CC.
4.23.2009 5:17pm
john w. (mail):

"...Also, what would Section 2 do to the 13th, 14th and 15th Amendments, and Congress' power to enforce racial equality within a state? Not clear to me...."

But this is now the 21st Century. Does anybody seriously believe that even the most 'backward' of the Southern States would turn around and re-establish Slavery -- or even Jim Crow -- as soon as the Federal government relaxed its vigilance for an instant?

Even in say, Mississippi or Louisiana, don't they now have a stable, politically-powerful black middle class that would presumably assert itself very forcefully if or when the 'good ole boys' ever tried to push them around? (That's not intended as a sarcastic or rhetorical question, by the way; I really don't know the answer.)
4.23.2009 5:19pm
CJColucci:
<i>Whatever anyone thought in 1789, almost no one now would support a legal regime in which an Ohio factory could belch posion into the air, wreaking havoc in Kentucky and Indiana, while the federal government could do nothing about it.

"Kentucky, or citizens therein, could sue Ohio or the factory for pollution as a common-law trespass, nuisance, or negligence. The case would go to the Supreme Court. You don't need the EPA nor the Commerce Clause for that; it's handled in Article III."</i>

That's certainly possible, but my point was not that such a legal regime is <i>impossible</i>, but that almost nobody now <i>wants</i> it.
4.23.2009 5:22pm
MarkField (mail):

The amendment fails to address what is perhaps THE critical failure point of the Constitution: The judges who decide the constitutionality of federal acts are chosen at the federal level. "No man should be the judge of his own case.", but getting to nominate and confirm the judge of your own case doesn't work out much better.

The Constitution already limits federal power quite severely, but it is being interpreted by judges chosen on the basis of their willingness to read it as allowing much that it prohibits.

The real solution is to select federal judges at the state level, so that they no longer have a systematic incentive to make rulings favorable to the federal government.


I don't follow your logic here. As long as federal courts rule on federalism issues, there's no way to avoid the problem of having one party to the dispute appoint the judges. Your system simply replaces the current method with one which has exactly the same defect.
4.23.2009 5:37pm
Anderson (mail):
My understanding is that Barnett argues that civil rights laws should be understood as flowing from the privileges and immunities clause of the 14th amendment

Well, since the SCOTUS disagrees, better put that in the amendment.

Does anybody seriously believe that even the most 'backward' of the Southern States would turn around and re-establish Slavery -- or even Jim Crow -- as soon as the Federal government relaxed its vigilance for an instant?

I live in Mississippi, and I'm not inclined to try the experiment. Thanks for your vote of confidence however.
4.23.2009 5:47pm
R Nebblesworth:
I can't believe the author of the piece really thinks the "tea parties" were some kind of watershed indicator of public unrest as opposed to a top-down astroturf job designed to manufacture controversy for the teevee talking heads...
4.23.2009 6:48pm
byomtov (mail):
I find it very hard to believe that, as Ilya claims, Barnett doesn't think his second provision would make it impossible for the federal government to act on interstate pollution issues. That seems to be not merely a plausible interpretation, but an obvious one.

Also, what does "employs instrumentalities" mean?

As for repealing the 16th Amendment, I don't see what that has to do with anything. Is the idea to dramatically reduce the revenue available to the federal government, or to substitute a different tax system? if the former, is Barnett proposing a massive default on the federal debt?

I agree with others here that much of the rest is too vague to be understood clearly.
4.23.2009 6:52pm
Han Solo:
>Besides that, the real issue is damages.
>Does the farmer just get the damages done?


Wouldn't that be handled by someone filing a Civil case against the person who caused the harm in their state?
4.23.2009 7:01pm
geokstr (mail):

R Nebblesworth:
I can't believe the author of the piece really thinks the "tea parties" were some kind of watershed indicator of public unrest as opposed to a top-down astroturf job designed to manufacture controversy for the teevee talking heads...

Nice try. Get that talking point from Olbermann?
4.23.2009 7:28pm
byomtov (mail):
Kentucky, or citizens therein, could sue Ohio or the factory for pollution as a common-law trespass, nuisance, or negligence. The case would go to the Supreme Court. You don't need the EPA nor the Commerce Clause for that; it's handled in Article III.

Oh yeah. That'll work. All it will take is a few hundred deaths, years of delay and denial by the polluters, and maybe you'll win. Who knows? Then you, or your grandchildren, get to try to collect damages from a company that declares bankruptcy.
4.23.2009 7:31pm
darrenm:

Once a constuttional convention is called, with this amendment in mind, what assurance do we have they the convention wont adopt other, les libertarian amendments?

A Constitutional Convention is still limited to proposing amendments, not ratifying them. This would still need to be done by 3/4 of the States. The paranoia about what delegates might do is way overblown.
4.23.2009 7:51pm
MarkField (mail):

A Constitutional Convention is still limited to proposing amendments, not ratifying them. This would still need to be done by 3/4 of the States. The paranoia about what delegates might do is way overblown.


That's what they said the last time. Fool me once...
4.23.2009 7:55pm
AndrewK (mail):
Since section 5 is WITHIN the amendment, it might be useless. An internal canon of interpretation might still be subject to prevailing norms. It might be that we say, for example, that the original public meaning at the time of the enactment must obviously be interpreted in light of current usage. So while I hear ya, it doesn't solve the hard problem.
4.23.2009 7:56pm
Ben P:

Wouldn't that be handled by someone filing a Civil case against the person who caused the harm in their state?


both me and PatHMV addressed this before but in slightly different aspects.

Most Environmental law textbooks devote substantial space to demonstrating all the trouble courts had with crafting an adequate remedy in light of environmental cases. Straight up damages just don't work, and courts are highly highly reticent to issue an injunction against a factory or something to stop their activity entirely where it's a nuisance.
4.23.2009 8:50pm
John Kindley (www):
The best part of this proposed Amendment is the repealing the 16th Amendment. It's unfortunate though that libertarians who give so much weight to natural law and natural rights jurisprudence ignore a historically prominent and eminently sensible solution to the problem of taxation that arguably conforms with natural justice. I'm referring, of course, to what Milton Friedman opined was the "least bad tax ... the property tax on the unimproved value of land, the Henry George argument of many, many years ago." There's an argument, based on recognizing that everyone (even the landless and impoverished) is born into the world with an equal right to the earth, that such a tax is not only the "least bad," but is actually just. While I'm inclined to think all taxation is armed robbery, there's an argument that this kind of "tax" isn't really a tax at all, but rather is just compensation to others for using more than our fair share of the earth. In all our discussions about the relative "merits" of the sales tax or the excise tax or the FairTax, it's unfortunate that we don't give consideration to the Georgist "single tax."
4.23.2009 8:58pm
TalkingHead:
How about simply repealing the 17th Amendment? To co-opt existing senators, you would need to make it take effect at some point in the future, but that would put back in place an important political safeguard of federalism.
4.23.2009 9:13pm
New Pseudonym:
There's little reason to believe that the repeal of the 16th Amendment would result in the federal income tax being unconstitutional.

I believe that repeal of Amendment XVI would restore the Supreme Court precedent that required its passage and held that a federal income tax is unconstitutional in at least some cases. Pollock v Farmer's Loan and Trust ,157 U.S. 429 (1895).
4.23.2009 10:09pm
SanDiegoHomeBoy (mail):
What we have now is a runaway Congress.

The district court, in Walker v United States and again in Walker v. Members of Congress extended what is known as the Coleman doctrine, based on the lawsuit, Coleman v Miller, 307 U.S. 433 (1939) to include not only the amendatory process previously controlled by Congress as stipulated by Article V, but the convention method of amendment as well, thus giving Congress "exclusive" control of the entire amendatory process. Further, the courts (including the Supreme Court) endorsed the right of Congress to "ignore or veto the direct text of the Constitution" such that even if the Constitution stipulated that Congress was required to take an action (such as a convention call or hold an election, for example) it now possessed the power to refuse to do so under what the court termed, "the political question doctrine." Finally, by employing Coleman, the court allowed the Congress to take actions against the state legislatures such as was done during the civil war to compel the compliance in the ratification vote. The court did not state at any time that the veto of text was limited only to Article V. Indeed, as any such stipulation would be based on authority granted the court by the Constitution, and the court has allowed that such authority may be vetoed, it is logical to presume such limit could not be imposed.

What the Court Decision Means.

1) The courts have established the text of the Constitution may be vetoed by the government under the political question doctrine.

2) In its ruling the Ninth Circuit Court of Appeals specifically and intentionally changed the language of the Constitution from "convention to propose amendments" to "constitutional convention" thus establishing the right of the courts to amend the text of the Constitution by judicial decree. Further it established that if a convention is called, it shall be controlled exclusively by Congress rather than being independent of government control as intended by the Founders. For all intents and purposes the convention would be nothing more than a puppet of the government unless there is strong public scrutiny and media attention to selection of delegates and the convention itself.

3) The courts established that despite specific federal criminal laws intended to prevent such actions by public officials of the government, those officials are considered immune.

4) Because it is clear the Congress will never call a convention, unless there is an organized effort to obtain one, and now has complete control of the amendatory process, can veto the language of the Constitution that Congress can "amend" the Constitution without following the formal procedures laid out in Article V.

5) The principle of "dead letter" has firmly been established for the Constitution. The right to amend the Constitution was a right under the right of the people to alter or abolish as established in the Declaration of Independence. That right is now gone. There is nothing to suggest, indeed the evidence is entirely contrary, that this principle of dead letter is limited only to Article V. Any right which is politically inconvenient is now at risk.
4.23.2009 10:14pm
Brett A. (mail):
On taxes, I sometimes wonder if something almost feudal may make sense: the States pay the Feds specific amounts, but leave the collection up to the States. Some States may raise the money with income taxes, while others will do it with consumption taxes. Tax competition and a taxation "race to the bottom" would develop, which is a Good Thing.


This is a terrible idea. It would basically be a return to the Articles of Confederation (where states were supposed to contribute money to the federal government - only they didn't), and that didn't work in the 18th century, when commerce and the state were much less sophisticated. What makes you think it will work in the 21st century?
4.23.2009 11:14pm
David Schwartz (mail):
John Kindley: What is the argument or evidence to suggest that merely being born entitles you to a "fair share" of the Earth? What is the argument that a family with 12 members is entitled to four times more of the Earth than a family with 3?

And what if intelligent aliens come to Earth and demand their share? Suppose they're very, very tiny and there are trillions of them. Does your share extend only to the planet you are born on? The country you are born in? Or the entire universe?

You can argue that this is the least bad tax, but I see no way to even start a coherent argument that it's based on some fair equal claim that you get simply by being born.
4.23.2009 11:35pm
Fear_Alike:
You are correct that the Income Tax would not be unconstitutional if the 16th was repealed, but it would have to be apportioned. That was the reason for the 16th.

There are many good ideas -- repeal the 17th... term limits... prohibit income taxes except during a state of war... single subject matter for all congressional bills... line item veto of spending bills...etc.

That is why I think we only need one amendment -- to allow states to propose amendments directly and bypass Congress, or to at lease call a convention limited to specific amendment texts.
4.23.2009 11:37pm
Cornellian (mail):
"...Also, what would Section 2 do to the 13th, 14th and 15th Amendments, and Congress' power to enforce racial equality within a state? Not clear to me...."

But this is now the 21st Century. Does anybody seriously believe that even the most 'backward' of the Southern States would turn around and re-establish Slavery -- or even Jim Crow -- as soon as the Federal government relaxed its vigilance for an instant?


I seem to recall that a proposition to repeal Alabama's state constitutional requirement that schools be racially segregated actually failed a few years back, with the opposition being led by none other than that notorious "10 Commandments" judge, Roy Moore. You may be overestimating the degree of social progress in the Confederate states.
4.24.2009 12:11am
Cornellian (mail):
"Kentucky, or citizens therein, could sue Ohio or the factory for pollution as a common-law trespass, nuisance, or negligence. The case would go to the Supreme Court. You don't need the EPA nor the Commerce Clause for that; it's handled in Article III."

How do you get around the fact that Ohio hasn't waived sovereign immunity? Doesn't sovereign immunity mean they can pollute Kentucky with impunity?
4.24.2009 12:13am
Cornellian (mail):
The amendment fails to address what is perhaps THE critical failure point of the Constitution: The judges who decide the constitutionality of federal acts are chosen at the federal level. "No man should be the judge of his own case." . . .

The real solution is to select federal judges at the state level, so that they no longer have a systematic incentive to make rulings favorable to the federal government.


Wouldn't that pose the same problem but in the opposite direction? Why wouldn't the judges "have a systematic incentive to make rulings favorable to the state government?"

What was wrong with the original design in which federally appointed judges had to be confirmed by a Senate selected by state legislatures?
4.24.2009 12:16am
Jon Roland (mail) (www):
I suggest a different approach with multiple amendments: First, amendments to restore original underzstanding, and second, amendments to add new powers, structures, or procedures.

I have begun a set of Draft Amendments to U.S. Constitution. It is far from complete, but you might find them better worded, if incomplete.

For example, the amendment on the income tax:

Income tax amendment
The amendment proposed by congress in 1909 to "have power to lay and collect taxes on incomes, from whatever source derived, without apportionment among the several States, and without regard to any census or enumeration", was never ratified, or if it was, is hereby repealed and rescinded retroactively.
4.24.2009 12:22am
Cornellian (mail):
rescinded retroactively

What's the difference between just rescinded and rescinded retroactively? Retroactive rescission wouldn't make collection of the income tax retroactively unlawful and there would be practical problems, to put it mildly, with trying to make the feds instantly liable to pay back all the income tax they have collected since the income tax was first enacted.

As a practical political matter, if you can't even get Congress to repeal the income tax, not even the 1994, Contract with America Republican Congress, what makes you think that both Congress and 3/4 of the states would approve an amendment to get rid of it?
4.24.2009 1:12am
Jon Roland (mail) (www):
Cornellian:

What's the difference between just rescinded and rescinded retroactively?



None. Redundant for emphasis.


... there would be practical problems, to put it mildly, with trying to make the feds instantly liable to pay back all the income tax they have collected since the income tax was first enacted.

There is a statute of limitations on past claims that would prevent that. The reason to make it retroactive is (1) the amendment was never ratified so all collections have been unlawful, whether acknowledging that fact is convenuient or not.

... what makes you think that both Congress and 3/4 of the states would approve an amendment to get rid of it?

Only massive demand from the voters that they do so. That is what we need to mobilize. But it will be useless to demand without specifically drafted proposals. Never leave drafting to one's opponents.
4.24.2009 2:32am
Jon Roland (mail) (www):
Forgot reason (2):

It needs to overturn all intervening court decisions based on the assumption that it had been ratified.
4.24.2009 2:34am
Cornellian (mail):
... what makes you think that both Congress and 3/4 of the states would approve an amendment to get rid of it?

Only massive demand from the voters that they do so.


My point was that if one could ever muster such "massive demand" from the voters, you could have Congress repeal the Internal Revenue Code. You wouldn't need the support of any state, let alone 3/4 of them.
4.24.2009 2:37am
Brett Bellmore:

Wouldn't that pose the same problem but in the opposite direction? Why wouldn't the judges "have a systematic incentive to make rulings favorable to the state government?"


Yes, exactly. We'll need that bias to overcome so many decades of precedent in favor of expansive 'interpretation'. I don't think there's a method of choosing judges that doesn't leave them with an institutional bias in SOME direction. Might as well have it in a useful direction.

We could ameliorate it somewhat, however, by having the states select judges for the circuits they're not part of. But that's not applicable to the Supreme court.


My point was that if one could ever muster such "massive demand" from the voters, you could have Congress repeal the Internal Revenue Code. You wouldn't need the support of any state, let alone 3/4 of them.


There are several issues, such as opposition to illegal immigration, or sentiment in favor of term limits, which have demonstrated conclusively that Congress is capable of ignoring massive and sustained public sentiment, if it runs against their own institutional interests.
4.24.2009 6:44am
Brett Bellmore:
I should add that there's widespread misunderstanding of the effects of that 3/4 of the states requirement. It does not require anything approaching 3/4 of the public.

It requires that the public support for an amendment be widely distributed, rather than local. If an amendment has moderate, but widespread support, you will have majorities in favor of it in most legislative districts, in most states, even if support doesn't much exceed, say, 55%.

I think the contrary assumption, that you need something like 3/4s public support to get 3/4s of the states ratifying, is a demonstration of statistical ignorance.
4.24.2009 6:50am
MCM (mail):
I should add that there's widespread misunderstanding of the effects of that 3/4 of the states requirement. It does not require anything approaching 3/4 of the public.


In fact, 50.46% of the US population lives in only 9 states. So you could even take 3/4 of the states and have an obvious MINORITY of the public.
4.24.2009 7:48am
gawaine (mail):
In discussing what states might want or not want to do, don't forget that you're really asking for action by members of the state legislature, which is made up of people who often have aspirations of someday becoming part of the Federal government, or at least rely on the patronage of the national parties and allies inside the Fed.
4.24.2009 8:30am
Dan28 (mail):

In fact, 50.46% of the US population lives in only 9 states. So you could even take 3/4 of the states and have an obvious MINORITY of the public.

And since maybe 10 percent of the country agrees with this effort to regress American government back to the 18th century, all you need to do is move that 10 percent around to the smallest states, and you're chances of getting this amendment passed will rocket all the way up to no chance in hell!
4.24.2009 8:40am
CharleyCarp:
This reminds me of my leftist friends who argue for the abolition of the Senate and the electoral college. So the true will of the people -- ie agreement with them -- could shine forth.

A more productive use of time might be speculating on the number of rings in the average unicorn's horn. Put me down for 12.
4.24.2009 9:14am
Snaphappy:
Dan and Charley provide a fitting close to this topic.
4.24.2009 9:49am
Joseph Slater (mail):
I've been looking for a word or term to describe the belief that we could get the U.S. to adopt radically different social, economic, and political policies and structures across the board -- policies and structures that overwhelming majorities of Americans have clearly rejected for many decades and are less popular today than in generations past -- if only we could change the language in the Constitution.

In broad brush, I agree with Charley Carp. I know leftists who used to argue that if we could just get the Constitution interpreted properly, it would mandate socialism. And rightists who think if we properly interpreted the Constitution, it would usher in a renewed age of Lochner, "states rights" to allow discrimiantion, etc.

The point is not so much that both interpretations of the Constitution are "wrong" (although I believe they are). The point is that you can't use the Constitution to try to entirely re-create society in a way that society thoroughly rejects. The nicest term I can come up with for believing otherwise is deeply naive.
4.24.2009 9:59am
Calderon:
However, I would not support Section 4, because on the whole I would rather that the federal government be funded through income taxes than through sales taxes or tariffs. Tariffs damage our economy for well-known Econ 11 reasons, while sales taxes are less transparent than income taxes, and tend to hide the true cost of government from voters.

The libertarian / small government reason for favoring tariffs or sales taxes over income taxes is that it's difficult to target tariffs or sales taxes at a particular portion of the population (and when it has been tried like the luxury tax on yachts during Bush I it's failed). Thus, sales and tariffs taxes hit the broad population and give everyone an interest in keeping taxes low (and arguably controlling spending as well). By contrast, income taxes can be (and increasingly have been) targetted at a small slice of the population, so that the majority don't have less of a stake in the level of income taxes.

Also, maybe because I live in Cook County -- home of the highest sales tax in the nation -- but I disagree that sales taxes are "less transparent" than income taxes. If the price of an item is $100, and at the register you pay $110, you know that the $10 is going to sales tax. I'm willing to bet most people know what the sales tax in their area is. (I would concede that tariffs and corporate taxes tend to be hidden in the price, VAT-type taxes would be as well) There's not really any transparency difference in looking at a receipt and seeing the amount that goes to sales taxes and looking at your paycheck and seeing the amount withheld for federal taxes.
4.24.2009 10:13am
Cornellian (mail):
Thus, sales and tariffs taxes hit the broad population and give everyone an interest in keeping taxes low (and arguably controlling spending as well).

Conversely, the objection to having a sales tax in place of an income tax is that it results in the poorest people paying the highest percentage of their income in taxes. If you're making minimum wage, you need to spend (and thus get taxed upon) pretty much 100% of your income. If you're making $10 million a year, you can easily get by spending (and thus getting taxed upon) just 1% of your income, and sitting on the other 99% of it.

Some people think this is an ideal state of affairs, but I've never seen a good explanation of how this idea is going to be sold to the general public.
4.24.2009 10:45am
Dan28 (mail):

Dan and Charley provide a fitting close to this topic.

Yes, although while I thought Charlie did a great job with the sarcastic send-off in his second paragraph, I just want to add that the National Popular Vote movement, which would effecitlvely nullify the electoral college, is an idea with widespread support (72% of Americans support elections based on a national popular vote as opposed to the electoral college) and a viable path to victory (NPV would not require a Constitutional amendment and NPV statutes have already been passed in a half dozen states, see generally http://nationalpopularvote.com/). So it's much more plausible than Randy's proposal.
4.24.2009 10:45am
Bill Walker (mail) (www):
I would suggest all read the article at: Federalism Amendment and then go to the www.foavc.org website.

The fact is all 50 states have submitted over 750 applications for an Article V Convention. Congress must call if 34 states submit 34 applications. The applications can be read at the FOAVC website
4.24.2009 11:06am
FWB (mail):
Absolute bunk. The Constitution for the United States is a complete list of the limited powers delegated to the government. IF a power is not enumerated explicitly, the federal government does not have it. The paradigm of the implied powers is one of the greatest lies of all times. If one is not of sufficient intellect to study the Constitutional grants of power and recognize that the grants themselves prove how limited each grant is, then we are doomed to failure.

Adding a constitutional amendment such as this only adds credence for the WRONG concept of the Constitution. Is it less work to build a blacklist of what is not allowed or a whitelist of what is allowed? Using Mr. Barnett's lead, we would end up with a Constitution larger than the current US code. Instead of screwing things up, learn what the Constitution really states, the limits of those statements, AND teach them to others.

Article 1, Section 8, Paragraph 1 already limits taxing and spending to EXACTLY 3 items debts, common Defence and general Welfare of the United States a specific body-politic, the United States, not of the States and not of the People.

Tiochfaidh ar la!
4.24.2009 11:47am
Snaphappy:
FWB:

First, where in Art. I, sec. 8, para. 1 do you find a limitation on spending? Congress may lay and collect taxes to pay the debts of the United States, but the section says nothing about what Congress can do to create those debts. Art. I, sec. 9, para. 7 states the requiements for spending: "No money shall be drawn from the Treasury, but in Consequence of Appropriations made by Law . . . ."

Second, where is the lie in this explicitly defined power: "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United Sates or in any Department or Officer thereof"?
4.24.2009 12:00pm
Gordo:
Ah yes, the dream of the libertarians - repeal of the 16th Amendment.

And Professor Somin's defense of it leaves out the biggest problem with a sales tax:

It taxes the poor at a higher percentage of income than it taxes the rich.

And there's the true, ugly underbelly of libertarianism - it's often used to justify punitive policies against the poor that reek of social darwinism.

The problem with that approach is that eventually the poor get guns, and then we get Lenin and Trotsky in charge.
4.24.2009 12:12pm
Jon Roland (mail) (www):
There is A Constitutional Replacement for the Income Tax on Wages which describes a purchase tax, an excise tax on purchases rather than sales, which could include purchase of labor, with the employer, not the wage earner, being liable to file and pay the tax, provided the labor is for the production of goods and services to be sold rather than for the employer's own consumption. Such a tax would have most of the advantages, and not most of the disadvantages, of the income tax on wages.
4.24.2009 2:14pm
Jon Roland (mail) (www):
The "implied powers" of the Necessary and Proper Clause were only to "carry into execution" the express powers. In other words, to make the effort the exercise of the express powers would involve, not whatever might be convenient to get the result for which the powers might be exercised.

Included in implied powers would be the powers to hire and discipline personnel, buy or lease office space, print documents, issue public announcements, adopt budgets, and civally prosecute violations in court.

Not included are penal powers to enforce violations of executions of the powers to tax, spend, borrow, regulate, or promote. I have clarifying amendments on these point in my Draft Amendments to U.S. Constitution.
4.24.2009 2:23pm
Han Solo:

Is it less work to build a blacklist of what is not allowed or a whitelist of what is allowed?



Well apparently the Supreme Court and Congress can't understand a whitelist.....what they seem to needs is a constitution written in THIRD GRADE English so they can understand it and not change is meaning on a whim.


Biggest mistake the founders made was not having something so simple a total idiot(typical federal servant) could understand it.


For all intensive purposes the Republic is dead, the states are now redundant and useless bodies of wasted effort.

The Constitution is hardly worth anything at this point, the federal government has nearly zero limits on its powers. The only thing the fed is semi-afraid of encroaching on is the first 5 bill of rights...because the general public still has some faint notion of what they are.


Outside of the first 5 amendments.....there is nothing they won't decide they can't do.


And even when it comes to encroaching the first 5, they either do it slowly, in secret, or try and see if they get caught.
4.24.2009 2:36pm
Jon Roland (mail) (www):
Han Solo:
Biggest mistake the founders made was not having something so simple a total idiot(typical federal servant) could understand it.

The problem is not understanding, but willingness to comply, and to construct elaborate sophisms to cover their violations.

For all intensive purposes the Republic is dead, the states are now redundant and useless bodies of wasted effort.

Nonsense. The Constitution is just waiting for enough people to understand and enforce it. You can contribute to that, and as long as you do it is alive for you.
4.24.2009 2:50pm
Joseph Slater (mail):
Right. The way to get a right-wing-libertarian Republic that is quite different than the type of social/political/economic order in the U.S. of the last 70-170 years is to convince people that the right-wing-libertanian model is what the Constitution REALLY means (despite what generations of judges and other elected officials have said). Or maybe to try to amend the Constitution so it really means that, despite the fact that overwhelming majorities of generations of Americans obviously haven't wanted that.
4.24.2009 3:13pm
geokstr (mail):

Cornellian:

Thus, sales and tariffs taxes hit the broad population and give everyone an interest in keeping taxes low (and arguably controlling spending as well).

Conversely, the objection to having a sales tax in place of an income tax is that it results in the poorest people paying the highest percentage of their income in taxes.

Nonsense. This is a strawman.

No one is actually proposing a national sales tax that "results in the poorest people paying the highest percentage of their income in taxes." The only sales tax plan that has gained any traction is the "Fair Tax". It proposes that every taxpayer in America would get a check every month to reimburse them for the approximate sales tax they would have to pay on spending up to the poverty level.

The Fair Tax would abolish all federal personal and corporate income taxes, gift, estate, capital gains, alternative minimum, Social Security, Medicare, and self-employment taxes and replaces them with one simple, visible, federal retail sales tax administered primarily by existing state sales tax authorities.

Note that even though the poor (at least those that actually work for living) pay very little income tax now, they pay many other taxes that would be abolished but are now hidden like corporate taxes, and also pay FICA taxes as well.

Fair Tax

It would also do away with a whole lot of the warped economic incentives built into the present system, and put an end to much of the lobbying and political graft that centers around obtaining favorable tax treatment.

While it also proposes to eliminate the IRS, I think that is a bit unrealistic, as someone will still have to monitor that the retailers are collecting and submitting the tax. Still, there would be a lot less entities to monitor than under the present system, where you have to watch the retailers anyway, plus the wholesalers, manufacturers, and all the individual taxpayers.
4.24.2009 3:35pm
PersonFromPorlock:
There seems to be a sense on the part of some commenters here that the American Government is the way it is because the vast majority of the American people want it to be that way, and so it's pointless to try for popular constitutional reform.

I don't think you can get from A to B: the most we can deduce from the continuing survival of burgeoning government is that (a) The political class runs things, including elections, to suit itself and (b) the American people aren't quite ready to storm Washington, burn the Capitol and hang their Representatives from the lampposts. They might very well welcome constitutional reform.
4.24.2009 6:55pm
Jon Roland (mail) (www):
PersonFromPorlock:

... the American people aren't quite ready to storm Washington, burn the Capitol and hang their Representatives from the lampposts. They might very well welcome constitutional reform.

What we lack is reliable polling results. I have been after Zogby and Rasmussen to conduct their own polls on public attitudes toward constitutional compliance and reform, and their response, predictably, is to give me an estimate of the cost.

So far what seems to emerge is that most people dislike members of Congress other than their own, as long as their own "bring home the bacon".


Political corruption begins with every voter who votes his pocketbook instead of for what's good for the country. There is little difference between the selling of his vote by an elected official and the selling of his vote by a voter, to whatever candidate promises him some benefit.


— Jon Roland, speech during his campaign for Congress, 1974.
4.24.2009 8:16pm
Brett Bellmore:

and their response, predictably, is to give me an estimate of the cost.


Yeah, they do polling for a living, what do you expect?
4.24.2009 10:19pm
Jon Roland (mail) (www):
Brett Bellmore:

and their response, predictably, is to give me an estimate of the cost.
Yeah, they do polling for a living, what do you expect?

They also do a lot of polling on their own nickel, to use their surplus capacity, keep their lists updated, and to generate buzz that might bring business. Their response is basically that they don't think there is market demand for information on constitutional compliance and reform. Too wonky.

I get a similar response from journalists and other opinion leaders. They think no one cares about the Constitution.
4.25.2009 12:49am
James Rogers (mail):
Actually, someone has conducted surveys about the public's attitudes towards constitutional reform and Article V conventions. It was conducted by Harris Interactive, and the results were published in 20 BYU J. Pub L. 407. The proposed constitutional amendments that have greater than 50% support are (in descending order of popular support):

-Balanced budget amendment: 76%
-To require that judges interpret the laws and not write them: 74%
-Term limits: 71%
-Prohibit Congress from passing laws affecting states unless it provides funds to implement the law: 69%
-Allow school prayer 67%
-Allow congress to regulate the amount of personal funds candidates can spend in campaigns: 65%
-Define Marriage as being between a man and woman:64%
-To limit or prohibit citizens from owning certain types of guns: 52%

72% of respondents stated that they had either had no preference to whether an Article V convention was used to amend the constitution, or preferred that an Article V convention be used.

Several comments have argued that the American people would not support constitutional amendments to reform the government. I think the first four items on the above list (balanced budget, restrict judicial activism, term limits, prohibit unfunded mandates) enjoy widespread support and would be relatively uncontroversial.

Several commenters have pointed out that fears of a runaway convention are unfounded because 3/4 of states would have to ratify any amendments passed by a convention. Other commenters have asserted that state applications to Congress for a convention cannot be limited. The drafting history and purpose of Article V indicate that this is not so: states can limit their applications to particular subject matters, and Congress has a ministerial duty to call a convention only when it has received applications from 2/3 of the states on a particular subject matter. I wrote a student note in the Harvard Journal of Law and Public Policy about this that can be read here.

The balanced budget and term limit amendments would be easy to pass, because there are still many applications from states that are still in effect. We'd probably only need to get about 10 states (I need to re-check the exact numbers) to make applications to Congress to force a convention. I am working now to set up a website that (hopefully once it is all set up), will allow people to get their state legislator's contact information, so they can pressure their state legislature to make applications to Congress for those first four amendments that enjoy widespread popularity. For those interested in learning more about the website I'm setting up, please feel free to email me.
4.25.2009 3:11am
Jon Roland (mail) (www):
James Rogers:

This is the link for the article cited below, "Fear of an Article V Convention", by Arthur H. Taylor. The main problem with the survey is that it only asked about the aspiration of the amendment, not the specific wording. Any wise reformer knows better than to ask politicians to frame the reforms we might demand. Comments follow each of the first four:


Actually, someone has conducted surveys about the public's attitudes towards constitutional reform and Article V conventions. It was conducted by Harris Interactive, and the results were published in 20 BYU J. Pub L. 407. The proposed constitutional amendments that have greater than 50% support are (in descending order of popular support):

-Balanced budget amendment: 76%

No one has found a competent way to formulate this. Among other reasons why it won't work is that it is not possible to reliably predict revenues and expenditures to know whether any given budget will turn out to have balanced. The only way anyone has found to asccomplish this purpose is to require that only gold or silver (or something else) be legal tender for the payment of debts. I have proposed replacing those with joules of energy as something that can grow in supply with the rest of the economy, but the principle is sound, if somewhat indirect.


-To require that judges interpret the laws and not write them: 74%

Again, no way to competently formulate this, other than the ways I try to do in my Draft Amendments to U.S. Constitution, in which judicial rules are amended to give strict constructors of the Constitution an advantage.

-Term limits: 71%

Not a good idea if all one does is limit elected officeholders and not their staffs. Otherwise, power shifts to the staffers. It is also not effective in reducing the undue influence of special interests. The only known way to do that is through some kind of sortition, or random selection.

-Prohibit Congress from passing laws affecting states unless it provides funds to implement the law: 69%

Would this include statutes requiring state actors not to violate the rights of their citizens? It is too broad, and does not get at the real problem, which is statutes that are not constitutional in the first place. That is what I try to address in my proposed amendments.
4.25.2009 7:10pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.