Thursday, April 23, 2009

The Federalism Amendment

Writing in The Wall Street Journal, Randy Barnett proposes that the Tea Party movement focus its agenda on passing this proposed amendment to the U.S. Constitution:

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Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.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

Me likey. This amendment does not specifically address the rampant overspending that seems to be the primary motivation behind the Tea Party movement, but I would hardly be upset if this text was added to the U.S. Constitution. Or if the phrase "And we really mean it!" was tacked onto the end of the 10th Amendment.

There is a delicious whiff of revolution in the air. Tea Parties everywhere. The Governor of Texas talks about secession. Montana declares federal gun laws invalid within its borders. State legislatures pass sovereignty resolutions.

I certainly hope that Barnett's dream comes true and the states do call for a constitutional convention -- and that Congress complies. But if it does not, let us remember the words of Abraham Lincoln:

"This country, with its institutions, belongs to the people who inhabit it. Whenever they shall grow weary of the existing government, they can exercise their constitutional right of amending it, or exercise their revolutionary right to overthrow it."

HT: Instapundit


JD said...

I would put that quote on "quotes I like" on my Facebook page, but I might be considered a right-wing activist and be watched by the FBI if I do.


Bill Walker said...

Before making up your mind I suggest you go to: and read the column as it notes several errors in Mr. Barnett's WSJ piece.

Also, you should go to and read the 750 applications submitted by all 50 states for an Article V Convention. Thank you.

Tom Jackson said...

Section 3 seems to allow the repudiation of debts owed to corporations, governments, and other non-persons. You want worldwide financial collapse? You got it.

Section 5 is open to a wide variety of interpretations -- "unreasonable," "rightful," "according to their public meaning" -- which could be taken by future governments to mean whatever they d*mn well please, as governments will do whenever they get the chance.

The authors seem to have meant well, but the result looks like one of those legalistic communiques from one of the right-fringe patriot cults of the 1980s, full of pompous quotes from the Magna Carta and suchlike.

John said...


I read section 3 as clearly referring to the U.S. federal government, not a corporation.

As for section 5, yes, that clause should probably go.

The entire amendment is rather wordy, largely to avoid lawyers tricking words into meaning what they did not mean.

As for me, I would be content if Congress passed the Enumerated Powers Act alone.

John said...


You certainly have done your homework! Thanks for writing such an exhaustively researched column. I'll need some time to digest it.

Tom Jackson said...

I was referring to debts owed _by_ the government; the section authorizes the payment of debts only to "living persons."

Jeff the Baptist said...

I have to agree with Tom on Section 5. Section 2 (which you seem to be missing) is essentially a repudiation of commerce clause abuses. Section 5 could be the new judicial commerce clause, especially if the judges conveniently ignore that they only have the power to nullify legislation.

John said...

I don't see how Section 5 could become a judicial commerce clause, as its power is limited to only nullifying, not asserting government activity. But I'd be comfortable removing that sentence entirely.


Section 3 is intended as a compromise to retain Social Security payments to people who have paid into Social Security. That could be said more directly in the amendment. But still, the text only refers to government, not corporations. I don't see how it can be interpreted to refer to private entities relinquishing debts.

I would prefer Harry Browne's old plan for eliminating Social Security: liquidate federal land holdings (national parks, forests, wetlands, etc) and use the funds to make a one-time payment to Social Security recipients nearing or in retirement. Then shut the whole system down, raze the Social Security HQ to the ground, and salt the earth where it stood.

I may have added the last two parts, but I think that these are useful components.

As an alternative to this amendment, I would suggest that the gist of the Enumerated Powers Act being turned into a constitutional amendment. But even this wouldn't be a cure. Congresspeople and President deliberately misinterpret the Constitution whenever they think that such misinterpretations would constitute good public policy. Another amendment won't stop it. Only voting such people out of office will.

Tom Jackson said...

"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."

I know what it says, and I see what it means; but it does not include "current obligations" owed to anything other than a "person living," and it appears to me that it prohibits payments to other entities unless those payments are specifically authorized by the rest of the Constitution.

Which illustrates another problem: You and I are reasonable, and fairly intelligent -- at least you are; some days I have my doubts about me -- and we agree that something like this would be a good idea, but we cannot come to an agreement on exactly what it means. What is going to happen when it is interpreted by lawyers and judges who are neither reasonable nor intelligent, and who do not think it is a good idea? They will interpret it exactly as they please, to no one's good but their own. The amendment, as written, is a good century's worth of unintended consequences, all rolled into one neat little economic neutron bomb.

John said...

Well, Tom, I guess that's a good reason to scrap that section right up to the first "or".

John said...

Correction: after the fist "or".

John said...

Hard to type with baby in arms.