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Fw: [Volokh] Randy Barnett: The Bill of Federalism

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  • Jon Roland
    ... Subject: [Volokh] Randy Barnett: The Bill of Federalism: Date: Mon, 4 May 2009 11:44:26 -0400 From: notify@powerblogs.com To:
    Message 1 of 1 , May 4, 2009
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      -------- Original Message --------
      Subject: [Volokh] Randy Barnett: The Bill of Federalism:
      Date: Mon, 4 May 2009 11:44:26 -0400
      From: notify@...
      To: volokh@...



      Posted by Randy Barnett:
      The Bill of Federalism:
      http://volokh.com/archives/archive_2009_05_03-2009_05_09.shtml#1241451864


      I received a deluge of feedback on my WSJ column, [1]The Case for a
      Federalism Amendment. The overwhelming response was positive--indeed
      enthusiastic--but some took issue with aspects of my proposal with
      well founded objections. Many also had their own favorite provisions
      they wanted to see included. And there were also objections to the
      wisdom of the entire project of seeking constitutional changes through
      the states.
      This feedback caused me to reconsider (a) the substance of some
      aspects of my proposal, (b) whether it might not be a better idea to
      disaggregate it into constituent parts while (c) adding provisions
      favored by others.
      The result is a tentative draft of a Bill of Federalism with 10
      amendments, along with a Preamble and explanation of each provision. I
      discuss the strategy behind this initiative and proposal on PJTV
      [2]here. In particular, I address objections to asking states to
      petition for a convention to propose constitutional amendments, and
      the advantages of a Bill of Federalism over a single amendment with
      multiple interrelated parts.
      A website has been created to collect comments, some of which are very
      useful. I intend to rewrite the proposal soon, and make substantial
      revisions to it. If you want to provide your comments, you can do so
      [3]here. (Comments are moderated so there will be a delay in their
      posting.) I encourage anyone with comments or objections to post them
      on [4]FederalismAmendment.com, where others can read them too. What
      follows are the first draft of the amendments with my explanations in
      hidden text.
      Let me stress once again that THIS PROPOSAL WILL CHANGE SUBSTANTIALLY.
      Some provisions will be deleted, combined, or altered, and others
      added.

      Resolution for Congress to Convene a Convention to Propose
      Amendments Constituting a Bill of Federalism
      Whereas Article I of the Constitution of the United States begins
      âAll legislative powers herein granted shall be vested in a
      Congress of the United Statesâ; and
      Whereas the Congress of the United States has exceeded the
      legislative powers granted in the Constitution thereby usurping the
      powers that are âreserved to the states respectively, or to the
      peopleâ as the Tenth Amendment affirms; and
      Whereas the Supreme Court of the United States has ignored the
      meaning of the Constitution by upholding this usurpation of the
      powers of the several states and of the people;
      To restore a proper balance between the powers of Congress and
      those of the several States, and to prevent the denial or
      disparagement of the rights retained by the people to which the
      Ninth Amendment refers, the legislature of the State of ________
      hereby resolves that:
      Congress shall call a convention to propose the following articles
      be added as separate amendments to the Constitution of the United
      States, each of which shall be valid to all intents and purposes as
      part of the Constitution when separately ratified by the
      legislatures of three-fourths of the several States:
      [The Bill of Federalism]
      Article [of Amendment 1] â [Limits of Federal Power]
      Congress shall make no law nor delegate any authority, pursuant to
      its powers in the eighth section of article I, respecting any
      activity confined within a single state, regardless of its effects
      outside the state or whether it employs instrumentalities
      therefrom; but Congress has power to reasonably regulate pollution
      between one state and another, and to define and provide for
      punishment of offenses constituting acts of war or violent
      insurrection against the United States.

      ([5]show)

      Comment on 1: As Congress has exercised powers beyond those delegated
      to it by the Constitution, the powers of states that were reserved by
      the enumeration of delegated powers have been usurped. The first
      proposed amendment restricts the power of Congress to prohibit or
      regulate wholly intrastate activity under the powers enumerated in
      Article I, Section 8, thereby leaving wholly intrastate activities to
      be prohibited or regulated by the several states, or be left
      completely free of any regulations as states may choose. And it
      negates two constructions adopted by the Supreme Court to expand the
      reach of Congress under the Necessary and Proper Clauseâsometimes
      called the âSweeping Clauseââof Article I: that Congress has power to
      regulate wholly interstate activity that either (a) âaffectsâ
      interstate activity or (b) uses instrumentalities obtained from
      outside the state. Lest this restriction on federal power create any
      doubt, this amendment makes clear that Congress retains the power to
      regulate interstate pollution and the power to define and punish acts
      of war and insurrection against the United States, for example, the
      possession of weapons of mass destruction. This provision leaves
      untouched the delegated powers of Congress to regulate wholly
      intrastate activities to enforce civil rights as expressly authorized
      by, for example, the Thirteenth, Fourteenth, Fifteenth and Nineteenth
      Amendments; it only restricts the improper construction of the powers
      enumerated in Article I, section 8 to reach wholly intrastate
      activity.
      ([6]hide)

      Article [of Amendment 2] â [Unfunded Mandates and Conditions on
      Spending]
      The legislative power shall not be construed to allow Congress to
      impose upon a State, or political subdivision thereof, an
      obligation or duty to make expenditures unless such expenditures
      shall be fully reimbursed by the United States; nor shall the
      legislative power be construed to allow Congress to place any
      condition on the expenditure or receipt of appropriated funds
      unless the requirement imposed by the condition would be within its
      power if enacted as a regulation.

      ([7]show)

      Comment on 2: The second proposed amendment addresses two sources of
      persistent federal overreaching. The first is federal laws mandating
      state action necessitating the expenditure of state funds without
      reimbursing the states for their expenditures. In this manner, the
      federal government can take credit for adopting measures without
      incurring the political cost of increasing taxes or borrowing. The
      second problem addresses is the use of federal spending to accomplish
      objects not delegated to the United States. For example, the 55 mph
      speed limit was imposed by the states by conditioning the receipt of
      federal highway funds upon compliance with this mandate. This
      amendment makes this type of condition on funding unconstitutional by
      requiring that any condition placed on the receipt of federal money be
      within the power of Congress to enact as a standalone regulation, such
      as the power of Congress to enforce civil rights that is delegated to
      it by Section 5 of the Fourteenth Amendment.
      ([8]hide)

      Article [of Amendment 3] â [Reserved Powers of States]
      Subject to the requirements of Article VI, every state has the
      power to regulate or prohibit any activity that takes place within
      its borders, provided that no state regulation or prohibition shall
      infringe any enumerated or unenumerated right, liberty, privilege
      or immunity recognized by this Constitution.

      ([9]show)

      Comment on 3: Since the Founding, states have been thought to have
      what is called a âpolice power,â but this power is not expressly
      enumerated in the text of the Constitution. The third proposed
      amendment explicitly recognizes the power of state government to
      regulate and prohibit activities within their borders. As specified in
      the Supremacy Clause of Article VI, no exercise of state power may
      conflict with any law enacted by Congress pursuant to its delegated
      powers or with any enumerated or unenumerated right guaranteed by the
      Constitution. At the same time it expressly protects the powers of
      states, it also recognizes the limitations imposed by the Constitution
      on those powers.
      ([10]hide)

      Article [of Amendment 4] â [Recision Power of States]
      Upon application of the legislatures of two thirds of the states,
      any law, regulation or order of the United States shall be
      rescinded.

      ([11]show)

      Comment on 4: At present, the only way for states to contest a federal
      law, regulation or order is to seek an amendment of the Constitution
      by applying for a constitutional convention to propose amendments that
      would must then be ratified by three-quarters of the states. This
      proposed amendment provides an additional check on federal power by
      empowering the states to rescind any law, regulation or order when two
      thirds of state legislatures concur this is necessary. Such a power
      provides a targeted method to reverse particular Congressional acts,
      administrative regulations, and executive and judicial orders without
      permanently amending the text of the Constitution.
      ([12]hide)

      Article [of Amendment 5] â [No Federal Death Tax]
      Congress shall have no power to lay and collect taxes upon personal
      gifts or estates.

      ([13]show)

      Comment on 5: The fifth proposed amendment forbids Congress from
      maintaining a tax on estates, sometimes referred to as the âdeath
      tax,â or on gifts made during oneâs lifetime. Among the many benefits
      of this provision is to allow businesses and farms to continue to
      remain in a family by avoiding the need to liquidate the business to
      raise funds to pay the estate tax.
      ([14]hide)

      Article [of Amendment 6] â [No Federal Income Tax]
      The sixteenth article of amendment to the Constitution of the
      United States is hereby repealed, and Congress shall have no power
      to lay and collect taxes upon personal incomes, consumption or
      expenditures, but nothing in the Constitution shall be construed to
      deny Congress the power to lay and collect an excise or sales tax
      that is uniform throughout the United States. This article shall be
      effective five years from the date of its ratification.

      ([15]show)

      Comment on 6: The sixth proposed amendment ends the power of Congress
      to enact a personal income tax, or to allow circumvention of this
      restriction by means of a consumption or expenditure tax. Lest the
      prohibition on a consumption tax raises any doubt, the provision makes
      clear that Congress retains the power to impose an âexciseâ or sales
      tax that is âuniformâ throughout the United States. Sometimes called a
      âfair tax,â a national sales tax would be paid by all persons residing
      in the United States, whether legally or illegally, without the need
      for intrusive reporting of their activities. As people buy and consume
      more, they would pay more taxes, but all their savings and investments
      would appreciate free of tax. To give Congress ample time to fashion
      an alternative revenue system, the implementation of this amendment is
      delayed for five years. Of course, Congress may end the income tax
      sooner if it so chooses.
      ([16]hide)

      Article [of Amendment 7] â [Term Limits for U.S. Senators and
      Representatives]
      Section 1. No person who has been elected or served for a full term
      to the Senate two times shall be eligible for election or
      appointment to the Senate. No person who has been elected for a
      full term to the House of Representatives six times shall be
      eligible for election to the House of Representatives.
      Section 2. No person who has served as a Senator for more than
      three years of a term to which some other person was elected or
      appointed shall subsequently be eligible for election to the Senate
      more than once. No person who has served as a Representative for
      more than one year shall subsequently be eligible for election to
      the House of Representatives more than five times.
      Section 3. No election or service occurring before this article
      becomes operative shall be taken into account when determining
      eligibility for election under this article.

      ([17]show)

      Comment on 7: The seventh proposed amendment establishes twelve year
      term limits for Senators and Representatives. In 1995, this proposal
      was introduced in Congress and was approved by the House by a vote of
      227-204, short of the two-thirds necessary to propose such an
      amendment to the states. It phases in these limits by exempting the
      time already served by incumbent Senators and Representatives to be
      included in the calculation of the limits on their terms.
      ([18]hide)

      Article [of Amendment 8] â [Balanced Budget Veto]
      Section 1. For purposes of this article, the budget of the United
      States for any given fiscal year shall be deemed unbalanced
      whenever the total amount of the debt of the United States held by
      the public at the close of such fiscal year is greater than the
      total amount of the debt of the United States held by the public at
      the close of the preceding fiscal year.
      Section 2. If the budget of the United States is unbalanced for any
      given fiscal year, the President may separately approve, reduce or
      disapprove any monetary amounts in any legislation that
      appropriates or authorizes the appropriation of any money drawn
      from the Treasury, other than money for the operation of the
      Congress and judiciary of the United States, and which is presented
      to the President during the next annual session of Congress.
      Section 3. Any legislation that the President approves with changes
      pursuant to section 2 of this article shall become law as modified.
      The President shall return with objections those portions of the
      legislation containing reduced or disapproved monetary amounts to
      the House where such legislation originated, which may then, in the
      manner prescribed under section 7 of Article I for bills
      disapproved by the President, separately reconsider those reduced
      or disapproved monetary amounts.
      Section 4. The Congress shall have the power to implement this
      article by appropriate legislation.
      Section 5. This article shall take effect on the first day of the
      next annual session of Congress following its ratification.

      ([19]show)

      Comment on 8: Many Americans have long desired both a balance budget
      amendment and a presidential line item veto. The Problems With
      Balanced Budget Amendments: Balance budget mechanisms that have been
      devised to date present three serious problems: They are highly
      complex, they typically contain numerous exceptions and loop-holes,
      and they lack effective means of enforcement. The Need for a Line Item
      Veto: The practice by Congress of aggregating thousands of lines of
      expenditures into âomnibusâ appropriation bills has greatly diminished
      the veto power that the Constitution reposes in the President. Because
      of their reluctance to threaten a government shut down, Presidents are
      loath to veto such bills. Knowing this, Senators and Representatives
      can load spending bills with pork, knowing that Congress will never
      have to give an up or down floor vote to a particular line item and
      that the threat of a presidential veto is empty. By linking the goal
      of a balanced budget with a temporary presidential line-item veto, the
      eighth proposed amendment provides a real incentive for Congress to
      devise a balance budget; if Congress fails to do so, the President
      would then have a temporary line item veto power over any
      appropriation in the budget. For example, should Congress enact a
      budget with a deficit, the President could veto Congressional earmarks
      and be held accountable for failing to do so. The amendment also
      ensures that Congress will retain the same power to override any
      presidential line item veto as it currently has for a traditional
      veto. The operation and advantages of this measure over other balance
      budget amendments is explained in detail [20]here.
      ([21]hide)

      Article [of Amendment 9] â [Protecting the Rights Retained by the
      People]
      The rights of citizens of the United States include all the
      enumerated and unenumerated liberties, and privileges recognized by
      this Constitution. Nothing in this constitution shall be construed
      to create any conclusive or irrebuttable presumption that a law,
      regulation, or order of the United States or of a State does not
      infringe such rights. In any case or controversy in which an
      abridgment of such rights is alleged, no party shall be denied the
      opportunity to introduce evidence or otherwise show that a law,
      regulation or order is an unreasonable restriction on such rights
      and therefore is unconstitutional.

      ([22]show)

      Comment on 9: The existing Ninth Amendment says that âThe enumeration
      in the Constitution of certain rights shall not be construed to deny
      or disparage others retained by the people.â Since the 1950s, however,
      the Supreme Court has adopted a construction by which any restriction
      of what it calls the âliberty interestsâ of the people is upheld as
      constitutional unless the Court deems a particular liberty interest to
      be a âfundamental right.â In this way, it has foreclosed any citizen
      from presenting proof that a restriction on a liberty not deemed to be
      fundamental is unreasonable. Because enumerated rights such as the
      freedom of speech are typically considered fundamental and protected,
      while the unenumerated rights to which the Ninth Amendment refers are
      deemed unprotected âliberty interests,â the practical result of this
      is the denial and disparagement of the rights retained by the People
      in violation of the rule of construction provided by the Ninth
      Amendment. The ninth proposed amendment provides for the equal
      protection of all the liberties of the people, whether enumerated or
      unenumerated, without empowering judges to define unenumerated rights.
      Instead, whenever a personâs liberty is restricted, that person is
      allowed to present proof that the restriction is unreasonable and
      therefore unconstitutional. This amendment will focus on the
      reasonableness of the governmentâs justification for restricting
      liberty rather than on the precise definition of a particular
      unenumerated right.
      ([23]hide)

      Article [of Amendment 10] â [No Judicial Alterations of the
      Constitution]
      The words and phrases of this Constitution shall be interpreted
      according to their meaning at the time of their enactment, which
      meaning shall remain the same until changed pursuant to Article V.

      ([24]show)

      Comment on 10: The tenth proposed amendment ensures that the text of
      the Constitution remains the supreme law of the land by preventing
      judges from ignoring or changing the linguistic meaning of the text of
      the Constitution by âinterpretation.â It requires that judges obey the
      text of the Constitution until it is properly changed by a
      constitutional amendment. A constitution that is ignored or
      systematically misinterpreted is a dead constitution. Only if the
      Constitution is actually followed can it accurately be considered as a
      âliving constitution.â
      ([25]hide)

      References

      1. http://online.wsj.com/article/SB124044199838345461.html#mod=rss_opinion_main
      2. http://www.pjtv.com/video/Tea_Party_Coalition_Show/Nationwide_Tea_Party_Coalition/1785/;jsessionid=abcaGwalsCIK_hKIuPSds
      3. http://www.federalismamendment.com/
      4. http://www.federalismamendment.com/
      5. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      6. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      7. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      8. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      9. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      10. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      11. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      12. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      13. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      14. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      15. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      16. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      17. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      18. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      19. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      20. http://www.cato.org/pubs/pas/pa-487es.html
      21. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      22. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      23. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      24. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html
      25. file://localhost/var/www/powerblogs/volokh/posts/1241451864.html




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