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.