From TLS and the Mises Blog, a few related posts, “Randy Barnett’s Proposed ‘Federalism Amendment’” [Mises; archived comments; 4/23/2009], “Randy Barnett’s “Federalism Amendment”–A Counterproposal” [Mises; archived comments; 4/26/2009], and “Randy Barnett’s Federalism Amendment” [TLS; Mises; archived comments; 12/3/2010]. Each reproduced below along with archived comments from the quondam Mises Blog.
“Randy Barnett’s Proposed ‘Federalism Amendment'” [Mises; 4/23/2009]
Randy Barnett has an interesting article in the Wall Street Journal, “The Case for a Federalism Amendment,” where he proposes “that states petition for a convention to propose an amendment repealing the 16th Amendment authorizing an income tax,” or, “Alternatively, states could include the repeal of the 16th Amendment in a more comprehensive ‘Federalism Amendment.'”
While federalism, more decentralization, and indeed anything that reduces the scope of federal power is good, there are a few troubling aspects to this proposal.
First, Barnett notes that repeal of the 16th amendment “would result in the Congress imposing a national uniform ‘excise’ or sales tax as authorized by Article I, Sec. 8.” Any libertarian should favor repeal of the 16th amendment, but advocating “replacing” it with a national sales or excise take is not a good idea. First, any such abolition would be gradual (even Barnett’s proposed amendment waits five years to repeal the income tax); so we’d just end up with both the income tax and the new tax. And even if the 16th amendment were repealed, there can be little doubt that the criminal gang know as our government would find a way to permit income taxation. Third, the problem is not the form of tax, but the extent–the solution is lower tax rates, not changing the type of tax. A real tax reform amendment would impose absolute, strict, and low caps (during debate on the 16th amendment, a 10% cap was considered, but rejected for fear Congress might actually tax at such a high rate, and “because people thought the idea that the tax might ever rise that high too absurd to address”!). (For more on this, see Lew Rockwell, The Myth of the Replacement Tax; Anthony Gregory, The National Sales Tax Disaster; Ron Paul, Tax Reform Is a Shell Game; Bruce Bartlett, Fair Tax, Flawed Tax; Harry Browne, National Sales Tax; Laurence Vance, The Tax That’s Anything But Fair.)
Another problem with Barnett’s “Federalism Amendment” is that it does not specifically provide for the right of secession; but this right is surely the crux of federalism. Without a right to exit, any “federalism” rights are hollow. Indeed, far from permitting secession, Barnett’s proposal specifically says, in Section 2, that states may do what they want in their own borders, BUT “Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.” Can there be any doubt that this clause would be seized by the President to justify forcibly preventing secession? Indeed, pro-war, centralist DC libertarians often justify Emperor Lincoln’s actions in The Recent Unpleasantness based on similar reasoning. (I note that in his comments explaining each of the five sections of his proposed amendment, Barnett doesn’t mention or explain this provision, though he does address most of the others.)
Other proposals are unclear to me: Explaining Section 2 further, he writes:
Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment.
If I understand what is proposed here, this would eviscerate much of the Fourteenth Amendment (surprising, since Barnett is a proponent of the Fourteenth Amendment and its use by Congress and federal judges to strike down unlibertarian state laws). Consider a state law that discriminates against blacks. Isn’t this activity wholly within the state?
This interpretation is buttressed by his Section 5, which provides:
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.
[Explanatory comment by Barnett:] Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power.
This implies the federal judges can review federal law only (which is as it should be)–but it’s silent as to review of state law, and does not ban it; given that it’s a current practice (and one Barnett approves of), the amendment ought to specifically state that federal judges may not review state law any more under the 14th.
I’d add that if we really want to make sure Congress stays within its limits, in addition to providing for a clear recognition of the right to secede, and limiting federal judicial authority–the states ought to be empowered to review and nullify federal law (for more on this see Jefferson’s Kentucky Resolution and Madison’s Virginia Resolution (links here); see also my post The Meaningless Constitution; and Kilpatrick’s great The Sovereign States.
There’s another curious aspect to his argument: He proposes:
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.
[Barnett’s explanatory comment:] Section 3 adopts James Madison’s reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments.
What is he talking about? An obligation is a binding legal contractual obligation, or perhaps a moral obligation. There is neither in the case of things like Social Security payments. First, there’s the issue of legislative (or parliamentary) sovereignty: a current Congress cannot tie the hands of future Congresses. The law may be changed at any time. So it’s not a legal obligation. I am not even aware of Congress ever “promising” to (always?) make SS payments; in fact, as far as I know the right to receive such welfare payments is explicitly NOT a contractual or property right. It’s entirely at the state’s discretion. And what would a “promise” be anyway–an official act of legislation? Where is it? A binding promise, like a contract? But it’s not, and can’t be. Is it a moral obligation? Of course not, as the obligation would involve immoral things like the state continuing to exist and continuing to steal taxes from younger generations.
So there are no obligations or commitments. This as far as I read it would actually not empower Congress to keep making Social Security payments. Which, to my mind, is god; but this is not what Barnett means to do here: In reality, what would probably happen is that the Congress would just start describing anything it wants to spend money on as a “previous commitment” or “promise” that we “must” fulfill.
Update 2: In my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Hastings Constitutional Law Quarterly, 1997), I survey a couple of other proposals for amending the Constitution. One my favorite is this one by Joe Sobran:
What we need is an amendment forbidding the circumvention of the Constitution. It could read: “The Constitution shall not be circumvented. ” I just got a big laugh from any lawyers who may be reading this.
More seriously, a better way to increase federalism than Barnett’s amendment would be the proposal of Marshall DeRosa, as set ot in book The Ninth Amendment and the Politics of Creative Jurisprudence (online copy; Google books version; Amazon; David Gordon’s review). DeRosa proposes an ingenious constitutional amendment, which would read as follows:
When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.
As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”
As I noted in my article, this amendment would be prefereable to that suggested by Robert Bork, since Bork’s amendment would have little positive effect on federalism. (In his book Slouching Towards Gomorrah: Modern Liberalism And American Decline, at p. 117, Bork proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority vote of each House of Congress.”)
As for other potentially useful amendments, unfortunately, Sobran’s proposed amendment, “The Constitution shall not be circumvented,” would be easily circumvented, as Sobran recognized. However, Sobran proposes another “amendment that would actually restrain the federal government. It would read: ‘Any state may, by an act of its legislature, secede from the United States.'” This is what is sorely lacking from Barnett’s proposal.
Update 3: Other discussion of Barnett’s proposal include Doug Mataconis, Is It Time For A Federalism Amendment?; Ilya Somin, Randy Barnett’s “Federalism Amendment”; and Roderick Long, Amendment Unmended.
“Randy Barnett’s Proposed ‘Federalism Amendment'” [archived comments; 4/23/2009]
“Randy Barnett’s “Federalism Amendment”–A Counterproposal” [Mises; 4/26/2009]
Re Randy Barnett’s Proposed “Federalism Amendment”, here’s an amended version that I think would be an improvement:
Section 1: Secession. Any State or Indian tribe may, by an act of its legislature, secede from the United States.
Section 2: Nature of the Union. From the perspective of the United States, the States are sovereign and are the parties to the Constitution, which is a compact among the States.
Section 3: Nullification.
(a) When a national majority the States of the United States declares a decision by any federal court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this Section.
(b) Any federal treaty, executive agreement, statute, regulation, administrative ruling, executive order, or the like may be nullified by a national majority of the States, pursuant to the procedures set forth in Section 3(a).
(c) Any person holding an office of the United States government may be removed from office by a national majority of the States, pursuant to the procedures set forth in Section 3(a).
Section 4: Interstate Highway Funds. The United States is prohibited from placing any conditions on any grants of interstate highway funds not directly and reasonably related to the purpose of establishing interstate transportation.
Section 5: Free Market. An internal free market, being necessary to the prosperity of a national economy, the interstate commerce clause set forth in Article 1, Section 8, Clause 3 shall henceforth be construed, with respect to commerce among the states, to give Congress only the power to prohibit State restrictions on interstate trade; and in no event shall this power or any other power in the Constitution be construed to give the Congress plenary legislative or police power. This Section is subject to the limits set forth in Section 1.
Section 6: Income Tax. The 16th article of amendment to the Constitution of the United States is hereby immediately repealed, and any person convicted of the crime of federal tax evasion, whether currently in prison or not, whether currently living or not, whether also convicted of other crimes or not, is hereby pardoned.
Section 7: Election of Senators. The 17th article of amendment to the Constitution of the United States is hereby immediately repealed.
Section 8: State Pardon Power. The governor of each State shall have power to grant reprieves and pardons to any individual convicted of any crime by any federal court who (a) is currently imprisoned within the territory of said State; (b) is a current or previous resident of said State; or (c) committed the acts serving as the basis for said conviction while present in said State.
Section 9: Federal Judiciary. The judicial power of the United States includes the power to nullify (a) any federal law or policy (1) that is not expressly authorized by this Constitution, or (2) that prohibits or unreasonably regulates of a rightful exercise of liberty; and (b) any state law expressly prohibited by a provision of this Constitution or by a constitutional federal statute; but does not include the general power to nullify or review other state laws. This Section is subject to the limits set forth in Section 1.
Section 10: Posse Comitatus. No member of the United States’ armed forces or any other armed federal official, employee or agent may be present or bear arms in the territory of a State without the express written permission of the governor of said State. No federal military installation may be placed in the territory of a State without the express written permission of the governor of said State.
Section 11: Original Understanding. 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.
Now, let me be clear: I think the Constitution is a hopeless sham, and that it’s not possible to have a successful amendment process. It’s not possible to fix it by amendment. It’s a set of paper limits enforced and interpreted by the very state that it seeks to limit (see, on this, Hoppe and de Jasay). And if we are going to amend it there are many others I’d want–maybe a return to the Articles of Confederation; explicit limits on spending and taxes, supermajority, sunsetting, Bricker Amendment and other provisions–but we are here focusing on ways of reinforcing, enhancing, and restoring federalism as one of the structural limits on federal power.
Further, personally, I think Section 1 alone is sufficient–the clear right to secede would be a significant limit on federal overreaching. But for those who insist on more detail, and to pivot off of Barnett’s more detailed proposal, I’ve added the other sections.
Section 1 makes it clear that any State or Indian tribe may secede. This is the ultimate structural limitation on federal power. And unlike most proposals which only focus on the States, this one also allows Indian tribes to gain independence.
Section 2 makes it clear that the Straussian-Lincolnian-centralist concept of the Constitution is invalid; that the Constitution is like a compact or treaty, among and between the States which are parties to this compact. Such a construction helps make it clear that the federal government really is limited, and at the end of the day, that its a creature of the states, and subject to control by them.
The phrase “from the perspective of the United States” is added to avoid implying that States actually have legitimacy from a natural law, individual, or libertarian perspective. That is, States have “right” from the perspective of the U.S., which means that there are limits on federal power; but this does not imply States are legitimate or have actual sovereignty.
Section 3 permits any federal court decision to be reversed by a majority of the states. This is taken from Marshall DeRosa’s proposal, but is not limited to Supreme Court opinions, because the Court could skirt this amendment by simply refusing to review lower court cases. This section also permits treaties and federal statutes and regulations to be nullified, and any federal officeholder to be removed from office, by a majority of the states. Treaties are included to prevent the treaty power from being used as an end
Section 4 prevents the federal government from using conditions placed on interstate highway funds to be used to manipulate the states and their internal policies and laws.
Section 5 makes it clear that the interstate commerce clause serves only as a veto on state laws that restrict interstate commerce; it establishes an internal free market, and effectively overturns cases such as the notorious Wickard v. Filburn. The provision is not a general grant of police power. Many federal laws based on the modern, overbroad reading of this clause would then be unconstitutional (such as the federal trademark law). The “veto” is limited, of course, by a State’s right to secede under Section 1.
Section 6 repeals the income tax amendment immediately (not in five years, as Barnett proposed), and pardons anyone convicted of federal tax evasion.
Section 7 repeals the 17th Amendment, to abolish the direct election of senators.
Section 8 permits state governors to pardon federal prisoners having various connections to the governor’s State.
Section 9 makes it clear that the federal courts have the power to nullify federal laws, based on the Jeffersonian notion of “concurrent review,” but that they do not have the general power to nullify or review state laws. There is a limited right to review state laws expressly prohibited by the Constitution, but even this is only a conditional right, given the states’ right to secede. In other words, a State’s compliance with federal requirements (such as internal free market) is seen as a condition of the State’s membership in the Union. If it does not want to comply, it may leave, or might even be ejected.
Section 10 is based on some of the ideas behind the posse comitatus laws, but is more general and has more teeth. It specifies that the US military or other armed agents, and federal military institutions, need the written permission of the governor of a given State, to be present in its territory.
Section 11 makes it clear that the Borkian notion of “original understanding” is the proper way of interpreting the Constitution. (See note 6 of my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution’s Unenumerated Rights (Hastings Constitutional Law Quarterly, 1997).)
I welcome any suggestions for additions to or changes to this proposal.
Update: I was reminded by a friend of Roderick Long’s well thought out “Virtual-Canton Constitution,” which is of relevance to the issue of designing constitutions.
“Randy Barnett’s “Federalism Amendment”–A Counterproposal” [archived comments; 4/26/2009]
“Randy Barnett’s Federalism Amendment” [TLS; Mises; archived comments; 12/3/2010]
Last year I discussed Randy Barnett’s proposed constitutional amendment in Randy Barnett’s Proposed “Federalism Amendment” and Randy Barnett’s “Federalism Amendment”–A Counterproposal. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation.
As noted in recent blogposts (Does Amending the Constitution Dishonor the Founding Fathers? by Damon Root on Reason‘s Hit & Run blog and Reflections on the Repeal Amendment by Ilya Somin on Volokh Conspiracy), the idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor. I doubt it will go anywhere, but it’s good to see it getting more attention.
As I noted in my posts from last year, Barnett’s proposal could be improved by explicitly recognizing the constitutional right of states to secede, and other changes. And a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction (on this, of course, see Tom Woods’s Nullification).
“Randy Barnett’s Federalism Amendment” [archived comments; 12/3/2010]: