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Randy Barnett’s “Federalism Amendment”–A Counterproposal; and related posts

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 And even if the 16th amendment were repealed, there can be little doubt that the criminal gang know as our government would find a way to permit income taxation.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.

Update:

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 copyGoogle books versionAmazonDavid 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]

Comments (8)

  • Stephan KinsellaAuthor Profile Page
  • An reader sent me this email:”I’m confused as to why Barnett’s Section 2 even discusses “acts of war or violent insurrection against the United States.” Doesn’t Article I already address this? And don’t the centralists already view secession as inherently unconstitutional? If so, why do they need an amendment saying so?I also doubt that section 2 would seriously crimp federal regulatory activity. There are tons of FTC justifications for regulating intrastate commerce. I doubt the FTC would surrender just because they’d be violating yet another constitutional provision.Indeed, Barnett would’ve been better off proposing an amendment banning “regulatory” agencies.
  • Published: April 23, 2009 3:40 PM

  • Stephan KinsellaAuthor Profile Page
  • On my facebook page linking to this post, one commentator writes:”I fail to see the usefulness of amendments since they’re continually ignored.”Another responds: “Indeed. In regard to federalism, Barnett’s propopsed amendment would restate the continuously ignored Tenth Amendment, except that it would legitimize the bogus Incorporation Doctrine — a bit of judicial usurpation that Barnett approves. In other words, where not redundant, it’s largely harmful.”
  • Published: April 23, 2009 4:52 PM

  • Brutus
  • “I fail to see the usefulness of amendments since they’re continually ignored.”I completely agree. As Dr. Hoppe has pointed out regularly, this is a State Constitution interpreted by the State. The State will always interpret the document to justify its expansion. Amendments which limit its power are ignored or reinterpreted to augment the power of the State. Of course, this is exactly what the anti-Federalists predicted.I think our efforts would be better used in convincing people that the Constitution is meaningless rather than dreaming up new amendments which will probably never be ratified or if they are ratified, will become justifications by the State to expand its power.
  • Published: April 23, 2009 6:12 PM

  • Jardinero1
  • I think an amendment which nullifies the commerce clause and the necessary and proper clause would do far more to restore state prerogatives than any federalism amendment would.
  • Published: April 24, 2009 9:56 AM

  • redshirt
  • Woods makes the point the founders fully understood that enumeration of powers logically trumps any notion of broad power that might be extrapolated from a single clause. Unfortunately, stupid people (or politically motivated people) got a hold of those clauses and decided that they apply more broadly. Obviously, if powers are enumerated then any clause that would seem to indicate greater generality would only apply to carrying out the enumerated powers and not to other possible new powers. This was the explanation that was necessary to get the Constitution ratified in the first place.An amendment then would only have to clarify the language of those phrases to specifically be applied to the fulfillment of the enumerated powers.BUT, these things are pointless in that the FEDERAL government appoints the attendees to a con-con and would be incalculably dangerous to put this Senate and Congress, under the influence of this President in charge of appointing the team.
  • Published: April 24, 2009 10:09 AM

  • David Spellman
  • We do not need more amendments to the constitution–we need less, as in, repeal most of the double digit numbered amendments.When new amendments are proposed, there is always a minor concession to liberty that is overwhelmed–even nullified–by the larger grant of powers to the government. I have not seen an amendment proposed in our lifetimes that would improve our government. They are all subtle attempts to overthrow what little freedom we have and incorporate it into the constitution.It would be much better to at least keep the constitution intact and ignored than to destroy it outright. It would be fantastic if someday the people rose up and destroyed the usurper government and restored a constitutional government. I hope that someday the darkness in the hearts and minds of the People will be enlightened.
  • Published: April 24, 2009 10:27 AM

  • Evan Bailey
  • This amendment needs teeth. Otherwise, it will just be ignored like Article 1, Section 8 and the 10 Amendment.
    The teeth could take the form of secession, but are there any other options?
  • Published: April 24, 2009 11:01 AM

  • JC Butte
  • Any clause prohibiting armed insurrection against the US government would be a direct repudiation of the second amendment.
  • Published: April 24, 2009 9:15 PM

“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.

Commentary:

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]

{ 19 comments }

Sheldon Richman April 26, 2009 at 11:20 am

Repealing the 16th Amendment would not mean Congress can’t tax wages and salaries. That was never held to be unconstitutional — quite the contrary. The 1895 Pollock case, which led to the amendment, affirmed Congress’s power to tax wages and salaries. However, it struck down the tax on property income, which brought down the entire tax bill since otherwise, contrary to congressional intent, the entire tax burden would have been put on wages and salaries.

BioTube April 26, 2009 at 11:21 am

The highway provision should probably be extended to all federal fund-shunting.

Stephan Kinsella April 26, 2009 at 11:43 am

Sheldon, I agree that the feds can still probably tax income even without the Sixteenth Amendment. Do you have an alternative proposal? I have toyed before with the idea of abolish all federal ability to tax, forcing them to rely on contributions from the States, sort of like the UN is funded. But this moves us towards a more radical change, back toward the Articles of Confederation–which I’d be in favor of, of course.

Stephan Kinsella April 26, 2009 at 11:52 am

Incidentally, Sheldon, I do not believe I implied that repealing the 16th would repeal the federal income tax. In any event, I’m not sure this is really a federalism question.

MTB April 26, 2009 at 12:22 pm

Are you writing an amendment that you think has a chance of passing, or a libertarian fantasy amendment? Professor Barnett’s version, while I don’t believe it will ever gain traction, is at least somewhat plausible.

JC Butte April 26, 2009 at 4:34 pm

Sheldon, Any US law taxing wages, salaries and commissions would have to be regarded as a “direct” tax subject to apportionment, wouldn’t it?

My own opinion is that the 16th amendment authorized a tax on capital, not labor, which is why it didn’t originally include a withholding clause…which didn’t emerge until WW2. Did wage earners even file returns from 1917 to 1943?

The Brushaber decision would seem to support that in that it declared that the 16th amendment conferred “no new powers,” although much of the rest of the language is obscure.

geoih April 26, 2009 at 4:40 pm

What about repealing the “necessary and proper” clause, the “commerce” clause, and the “general welfare” clause? How about a clarification to the second amendment?

dewind April 26, 2009 at 5:45 pm

The clarification of text and removing anything ambiguous from the Constitution would be necessary. Section 11 would sufficiently deal with perverse interpretations. Though I’d rather weigh on the safe side and destroy and vague-aries.

RWW April 26, 2009 at 7:48 pm

If they ignore the Constitution as it currently stands, what’s to stop them from ignoring this addition?

Gil April 26, 2009 at 8:47 pm

What bother with all the guff and break up the union in a way that each State become a sovereign nation-state?

D. Frank Robinson April 26, 2009 at 9:29 pm

I have no objection to the Kensella Amendment.

However, I contend that the conceptual structure of the US Constitution is dysfunctional for a population of 300 million. For example, if the US House of Representatives was apportion on the basis of one per thirty thousand population (the original ratio), then it might gain the general support of the people governed. This ratio of representation is now considered ‘impractical’. Therefor, the United States is an impractical union and should be dissolved into bodies which can practice a reasonable level of representation, i.e., 1 to 30,000 or lower. If that is not practical, then it is possible that no form of representative government is scalable and practical – unless the principle of secession applies to political entities of any population.

A market, on the other hand, is highly scalable and needs no political quotas for ‘representation’ to function. Everyone represents oneself in the market.

wuzacon April 26, 2009 at 11:29 pm

I agree with the comment that it is sufficient to clarify that the states have the right to secede, possibly adding the right to nullify, and repealing the 16th and 17th amendments, which really did kill federalism. If necessary, we could clarify that direct taxation includes any tax on any transaction, whether for goods or services. I would probably add some provision eliminating the Fed. I would object to states having the power to fire individual employees and I think many of the other provisions are far too specific and unnecessary. One change that would be appropriate is to permit state legislatures to author an amendment to the Constitution, to be added when 2/3s of the state legislatures and the people of 2/3s of the states adopt the amendment.

Has anyone ever tried to call a constitutional convention? It may be the only way to pass something like this.

Bill in StL April 26, 2009 at 11:45 pm

While we’re at it, let’s add language to clarify that prohibited “infringement” does not mean “unreasonable regulation of” it means “any restriction whatsoever.” Too many supreme court decisions include nonsense about balancing rights with government interests.

Bud April 27, 2009 at 12:58 pm

One other item worthy of attention, if we wish to restore actual Federalism, is the disposition of lands currently controlled by the Federal Govenment. Here is some draft language that will surely invite the attention of wordsmiths:

XXX: Congress shall make no law establishing Government ownership of land or navigable waterways in any State; any land currently owned by the Government shall be transferred to the State in which it exists no later than two years after the ratification of this Amendment. Subsequent Government use of State lands shall be subject to contractual agreements with the State in question.

EB April 27, 2009 at 1:54 pm

“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.”

Just playing devil’s advocate; even if one accepts that the Consititution was created by the States, and therefore those States have the right to get out of it, wouldn’t this right apply ONLY to the original 13 states that preceded the Constitution? How can one say that, for example, Tennessee “entered into a compact” with “other states” via the Constitution, when Tennessee was in fact created through the Constitution, many years after its enactment? Indeed, with the possible exception of Texas, the other 47 states were created out of property acquired by the federal government (e.g., the Louisiana Purchase) upon which the same federal government ALLOWED settlement; see Article 4, Section 3 – “The Congress shall have Power to dispose of and make all needful Rules and Regulations respecting the Territory or other Property BELONGING TO the United States”

Also, the same section, present since the original ratification, says that “no new States shall be formed or erected within the Jurisdiction of any other State; nor any State be formed by the Junction of two or more States, or parts of States, without the Consent of the Legislatures of the States concerned as well as of the Congress.” The fact that Congress has, and always had, such a veto power would seem to run against the concept of the States as sovereign entities.

Stephan Kinsella April 27, 2009 at 2:10 pm

EB:

“even if one accepts that the Consititution was created by the States, and therefore those States have the right to get out of it, wouldn’t this right apply ONLY to the original 13 states that preceded the Constitution? How can one say that, for example, Tennessee “entered into a compact” with “other states” via the Constitution, when Tennessee was in fact created through the Constitution, many years after its enactment?”

From my comments here and here:

Of course, there is a right to secede. Of course, Sandefur is dead wrong in harping on this allegedly significant distinction without a difference. The CSA had a right to secede and to revolt, just as did the USA in seceding from Britain. (This pettifogging by thelibertarian centralists reminds me of the hairsplitting involved in the claim that there is a difference between alienating and forfeiting a right–often made to justify the latter while pretending to still be in favor of “inalienable” rights; rights are not inalienable. They are (proportionatley) forfeited, or alienated, by committing crime).

The states of the US obviously have a constitutional right to secede, since the federal government is merely an agent of limited powers created by compact of the original 13 state-parties, and that compact (a) never denied the right of states to leave the union; (b) the states never gave up this right; and (c) the feds were never granted the power or authority to stop the states from leaving. It is quite obvious that there is a constitutional right to secede.

As Kevin Gutzman discusses in ch. 3 of Virginia’s American Revolution: From Dominion to Republic, 1776-1840 (as well as in his 2004 Review of Politics article “Edmund Randolph and Virginia Constitutionalism,” Virginia (in addition to two other states) retained the right to reclaim the powers they were delegating to the Federal Government (that is, to secede) in case those rights were perverted to their oppression (which has to be a matter that is for them alone to decide). See ch. 3 of Virginia’s American Revolution and the aforementioned article. In fact, the two leading Federalist spokesmen in the ratification convention told the convention that they were to be “as one of thirteen parties to a compact,” that the Federal Government would have only the powers it was “expressly delegated,” and that they could reclaim the powers they were granting it (that is, secede) if those powers were perverted to their (that is, Virginians’) oppression. (Obviously, only Virginians could be the judge of that.)

Further, the Supreme Court has long had what it calls the Equal Footing Doctrine (2), which holds, after the manner of Virginia’s Northwest Cession of 1781, that all states have the same rights. If Virginia (and NY and RI) reserved the right to secede, then all states have that right. This doctrine requires all states to be treated alike, and reflects the universal understanding of the ratifiers, that means any state can secede if it wants to.

Incidentally, the two VA Ratification Convention delegates mentioned above were the governor, Edmund Randolph (also a prominent Framer) and George Nicholas, who often spoke for Madison. They were two of the five members (along with John Marshall and James Madison) of the all-Federalist committee to draft the instrument of ratification.

(For more on this, see the two above-noted works by Gutzman, plus his Gutzman’s Mr. Franck, Meet Mr. Randolph and Neocons vs. the Real Constitution.)

Now, of course, it could be that the president, in the mode of Lincoln, would ignore Texas’s right. That’s a separate issue.

***

So why does Sandefur nitpick on the difference between “secession” and “revolution”? Because you see, he wants to argue that since there is no legal right to secede (contra reality), then all that’s left is the right to revolt. But then those nasty Southern racist slaveholders had no right to revolt–why? Because (as I explain in
Sandefur and Federal Supremacy), in Sandefur’s view, “the Southern states could not legitimately claim a right to revolt in defense of slavery”. (Nevermind that he views the American revolution from Britain as legitmate, even though colonial America had slavery!)

But this is sleight of hand on his part. He pretends like his reason to oppose the CSA’s revolution was that they had slavery (again, nevermind the fact that the US did in 1776, too). But note, he writes: “revolution is justified only as a form of self-defense against rulers who have engaged in a train of abuses and usurpations against those individual rights which just governments protect. This alone distinguishes an act of revolution from a mere criminal conspiracy.”

Sandefur is of the opinion that there was no train of abuses justifying revolution (despite the fact that the federal taxes, impositions, tariffs, etc. were more onerous in 1861 than those King George imposed in 1776; and certainly today’s federal mandates, taxes, and regulations are orders of magnitude beyond either, thus making the case for revolution stronger today than ever!). This means, however, that slavery has nothing to do with Sandefur’s arguments against the right to revolution. For under this theory, even if none of the United States had had slavery in 1861, it would still have been a “mere criminal conspiracy” for the South to secede, without permission from Congress. This is because the South, according to Sandefur, would not have been “able to point to a long train of abuses pursuing the design of reducing them to despotism”. In other words, even if slavery had already been abolished, the Union would be justified in using armed force to subdue a seceding State, unless the State was engaged in “revolution” in response to acts of “despotism” by the Union.

Sandefur’s real position is that, barring acts of despotism by the central government, it may legitimately use armed force to prevent the secession of its States.

So, according to our centralist “libertarian” “allies,” states cannot secede, since they have no right to (despite the fact that Virginia and other states explicitly retained this right, which was recognized by the ratifying convention; and the Equal Footing Doctrine, which requires all other states to also have this right); and they can’t revolt, since there has been no long train of abuses (despite the current unprecedented world financial crisis foisted on the states by the feds, imposing cripling million-dollar future obligations on the citizens of the States; despite the fact that Sandefur et al. recognize the puny abuses of King George as justifying the 1776 American Revolution (please, please give me back King George)).

In reality, the proper libertarian view is that of course there is a right to secession, both constitutional and natural; and there is a right to revolution, since our federal government is criminal, unlibertarian, unconstitutional, and tyrannical (little Timmy can’t acknowledge that–wouldn’t be a polite position to take while kissing ass at some DC cocktail party).

***

The truth is that right to secede is anathema to the centralist libertarian and Randroid mindset, which is obsessed with the idea of having a nice, neat, legal, “final” deciding authority…. even if it’s the criminal state itself–which is why they distort and lie, to justify their disgusting worship of the unconstitutional, unlibertarian 14th Amendment, federal judges, and federal power.

Further, Sandefur disparages libertarians who hold views similar to Paul’s as “paleoconservatives.” A better term might be anti-centralist libertarians. The truth is, the centralism and naive federal judiciary worship of Sandefur and his statist-centralist pals is hardly compatible with libertarianism, which is anarchist, anti-state, and decentralist.

***

A final point. So what if there is no right to secede in the Constitution? The Constitution was an immoral, unlibertarian, criminal coup d’etat. In any event, agreements entered into by previous generations do not bind us.

***

One other comment: it’s sad that an ostensibly libertarian site, one that trumpets the Declaration of Independence, is accepting the Lincolnian state’s “logic” in denying to States the right to secede (or revolt). Extremely disappointing.

But then, I guess that’s what you get from a soi-disant libertarian who has “distanced myself from the more extreme elements of the libertarian movement.” Wow, I guess even Barry Goldwater would be too much for him! Only respectable types around here, move along, move along.

To those watching from the sidelines, whose side would you rather be on: that of the brave Ron Paul; that of principled, anti-centralist, anti-war libertarians; that of Jefferson and Madison (of Kentucky and Virginia Resolves fame — 12) — or that of a self-admitted “pro-war libertarian” who says “the evidence is clear that Western Civilization is in a fight for its own survival right now. Following the naive foreign policy advocated by the Libertarian Party and its pacifist allies is, quite frankly, a prescription for suicide.”

Hey, buddy, we are committing suicide right now–you see the financial implosion going on around you? Hmm, I wonder if it might have something to do with the military spending of this federal beast, and its authority and capacity to decide whether or not and how to wage war–which you support?

***

Another point about the “respectable,” non-extremist, cocktail-party libertarians yammering about slavery as if this was some unique taint of the CSA’s secession (yes yes, we’re all anti-slavery now–well, we anarcho-libertarians are anti-slavery, of course–against slavery of all kinds; the statist, I mean, minarchist, cocktail-party centralist libertarians favor taxation, which is a type of slavery, and the state’s right to exist, and hence its ability to inevitably kill and kidnap and jail innocent people as it enacts one unjust positive law after another) — but how they can maintain that slavery taints the CSA’s case but not the USA’s requires a mental compartmentalization and disingenuous mental gymnastics that is almost admirable, in a twisted sort of way: After all, during the American Revolution, the British offered freedom and a bounty to any slave who fought for them, so it was the anti-slavery cause, and the colonists’ the pro-slavery one, as Dr. Johnson loved to point out. And, of course, during Recent Unpleasantness (which DiLorenzo appropriately refers to as The War To Prevent Southern Independence), the Union also contained slave states throughout the war, and in fact, before Lincoln’s invasion of the South, there were more slave states in the Union than in the Confederacy. So how do the slave-owning USA during the Civil War, and the slave-owning USA during the Revolutionary War, garner the centralists’ favor, when this fact condemns the CSA’s botched effort? Why, because without the US gaining independence from Britain, and defeating the secessionist CSA, we wouldn’t have the 14th Amendment authorizing federal judges to supervise the hicks and peon lawmakers of the southern and rural states! And we wouldn’t have “American entry into WWI, to the punitive Treaty of Versailles, [] the rise of German nationalism and Hitler and WWII, tens of millions dead and the Holocaust, nuclear bombings of Japan, the Cold War, etc.” We wouldn’t have American Greatness!

***

Did you know, the last slave state to enter the union was West Virginia, which entered the union via an unconstitutional act by the Lincoln regime. So Sandefor’s favorite tyrant, Abe Lincoln, 1) violated the Constituton, to 2) bring another slave state into the union.

***

Readers should realize that the “right of revolution” crap is a complete fabrication of Harry Jaffa’s demented mind, and is parroted by all of his sychophants like li’l Tim Sandefur. It’s all made up. The founders never engaged in any such discussion. If they did, why doesn’t Jaffa or Sandefur quote them?

This is what Straussianism is: reinterpreting historical documents in a way that rewrites history to fit neocon policy agendas. How is this different from Soviet propaganda practices?

The truth is that the states were always sovereign, which means they could secede whenever they damn well wanted to for any reason. But this is all a diversion the REAL question is: Why was there a war?

Everyone knows that Lincoln did not invade in 1861 to free any slaves. Why, then, did he invade his own country and micromanage the murder of 350,000 American citizens?

These naive, dishonest, dishonorable, faux-libertarian apologists for statism, centralization, and war should have to answer this, and answer for their treason.

EB April 27, 2009 at 3:12 pm

“These naive, dishonest, dishonorable, faux-libertarian apologists for statism, centralization, and war should have to answer this, and answer for their treason.”

Gee, so much for posting “civil comments…”

M.Ross April 30, 2009 at 1:15 am

I agree! And it is apparent that as with other matters of gov’t, few People even read most documents that created the gov’t. Ex:

Prove This Statement Wrong! I submit:

The 17th Amendment Does Not Apply To Any States That Did Not Ratify It – Because They Did Not “Consent” To It, & the Constitution Declares:

“…; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” – Article V last clause.

The “Consent” clause is Written Inviolate by the framers!

No State Ratification Means No Consent, & No 17th Compliance Required! A state must ratify to “Consent” to “be deprived of its equal Suffrage in the Senate.”! Which states did not consent? Find each state’s 17th amendment ratification documents. Rattle the states, not the feds!

This Is A “Federal Question” Of “Great Public Importance”!

“The Constitution is a written instrument. As such, its meaning does not alter. That which it meant when it was adopted, it means now.”
South Carolina v. United States, 199 U.S. 437, 448 (1905).

http://mrossarr.nixsyspaus.org/17thamend.shtml>

 Darrel Raber March 13, 2010 at 8:16 am

Have just turned back from a special holiday to Pattaya, stayed at West of Eden in the northern part which is less busy than southwestern areas, superior hotel and great bays near Pattaya like at Koh Larn. We hired a landrover for only 400 baht per day and would drive around the entire area. So many marvelous localises to dine, our cherished restaurant was Ahan thai Aroy which had the most wonderful view over the beach, the faculty was quite friendly and the food so delicious, we went for sunset cocktails. My wife and I had a great time in Pattaya City and will be back for New Year.

“Randy Barnett’s Federalism Amendment” [TLS; Mises; archived comments; 12/3/2010]

TLS version:

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]:

 

{ 24 comments… read them below or add one }

J. Murray December 3, 2010 at 11:46 am

20% sounds like a better target number. There needs to be some mechanism for the minority to protect itself from the tyrrany of the majority.

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Daniel Kuehn December 3, 2010 at 11:46 am

I’m not sure if you realized, but this has also been discussed recently in the Virginia state legislature. I wrote about that, and my support for the amendment, here:

http://factsandotherstubbornthings.blogspot.com/2010/11/states-rights-and-constitution-in.html

Although you’ll see I support it precisely because it’s federalism but not nullification/secessionism. My view is that nullification and secession as conceived by Woods defeat the whole purpose of a federal republic – but yes, I agree – this amendment is a very good idea.

REPLY

RWW December 3, 2010 at 9:32 pm

What is “the whole purpose of a federal republic”?

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scineram December 3, 2010 at 12:10 pm

“explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction”

Which would defeat the whole point of having the union in the first place.

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Daniel Kuehn December 3, 2010 at 12:19 pm

Right.

I wish Tom Woods and other nullificationists would simply come out and say they don’t think federalism is a good idea – that they want a mutual security compact between independent states or something like that.

Did Jefferson and Madison similarly not like federalism? I think that’s harder to say because in the early republic everyone was necessarily groping around in the dark. I feel pretty comfortable saying they probably wanted a meaningful federalism, not just a mutual security compact, and that they were simply reacting to a shocking overreach by Adams. Jefferson and Madison I expect were closer to states and localities saying “I’m not going to wait for the Supreme Court to tell me the Patriot Act is unconstitutional” than they were to the secessionist doctrines that would emerge in the 1860s.

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David Bratton December 3, 2010 at 12:31 pm

I’ll say it. Federalism is a mere confidence game and it always has been. There is no such thing as divided sovereignty. Divided sovereignty is a contradiction in terms because sovereignty is the power to act as the final judge in all disputes. There cannot be two opposing final judges, so either the states are sovereign and the Federal Government is not, or it’s the other way around.

REPLY

Daniel Kuehn December 3, 2010 at 12:42 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government. Biases may emerge from time to time and the decision making isn’t perfect, but I don’t see any reason to believe it is systematically imperfect. The case that the Supreme Court is beholden to the Federal Government is very weak, and it’s always a case that is made by citing innuendo and personal dissatisfaction with decisions, rather than evidence or even logic.

Now – that’s not to say the actual institutions of governance couldn’t be more balanced – they can be. The actual institutions of governance are quite imbalanced, which is why we see a drift towards the federal government (the Supreme Court can’t make all adjustments… some disputes never come before it). That’s why I support the Federalism Amendment. But that’s a very different argument from the argument that federalism itself is a “contradiction in terms”.

REPLY

nate-m December 3, 2010 at 1:32 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

Um. I don’t know if this comes as a shock or anything, but the USA Supreme Courts is part of the Federal Government. You can’t say that ‘Sumpreme Court has sway over the Federal Government’ because they are one and the same. It’s like saying that my arm is a significant influence over the behavior of my liver.

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government

Seeing how Supreme Court justices are appointed by the actions of the other two branches of government then I don’t see why it would come as a shocker that the they are going to appoint people that agree with their political viewpoints.

In case your not getting what is being said here:

The Supreme Court is a balance for government power in the same way that Congress controls the government budget and the Executive branch has the power of the veto. This is designed to _slow_down_ bad legislation to prevent politicians from taking advantage of shocking events and temporary extreme sways in public opinion to pass power-grabbing legislation.

The Supreme Court is made up of pro-federal-government judges because that is what the other branches of the federal government wanted to be in there. The Supreme Court, like everybody else in the planet, are just going to act on their own self interest. Nothing more, nothing less.

The Supreme Court is NOT the ultimate power or counterweight for Federal power. It is PART of the Federal power.

The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.

But that is thrown out the window with everything else a hundred years ago.

REPLY

Daniel Kuehn December 3, 2010 at 1:44 pm

I didn’t think I needed to clarify the initial point. Are you being sarcastic? In case you’re not I’ll clarify – yes, the Supreme Court is a part of the Federal Government but it has no role in providing federal-level governance outside its task of judging. It therefore has no interest in expanding power at the federal level. Clear?

Now – you are exactly right that Supreme Court justices are appointed by other branches of government. This is precisely why I think it would be better to have election of Senators by state legislature and repeal authority for the state legislatures. But there’s nothing about the Supreme Court being a court in Washington D.C. that introduces a problem here.

“The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.”

Are we reading the same Article 3? Power resides in the states to be sure. I am struggling to see support for your conclusion that final arbitration does. Could you cite something to that effect?

Beefcake the Mighty December 3, 2010 at 1:48 pm

“It therefore has no interest in expanding power at the federal level. Clear?”

This statement, if honestly put forth, is naive, I’m afraid.

Daniel Kuehn December 3, 2010 at 2:18 pm

Beefcake –
Well note also what I agreed on with nate regarding the incentive structure of the Supreme Court.

If you’re willing to note other incentives I’m all ears and happy to agree if they seem sensible.

My point is simply that they are not beholden to the federal governing bodies or dependent on them in the way that the modern nullification view insinuates.

J. Murray December 3, 2010 at 12:28 pm

A Federation is a group of sovereign nations that band together and agree on common rules. The United States isn’t a nation. It’s 50 nations engaged in a pact of common economic rules and military protection. Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.

The Federal government was meant to be the steward of the common military defense and to ensure the individual states weren’t violating the rules lain out in the Constitution, mainly ensuring the free movement of people and goods between the borders. Anything that extends beyond this duty can be nullified.

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Daniel Kuehn December 3, 2010 at 12:45 pm

“Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.”

Nobody is arguing that a Federal elected body can force a state to violate the terms of the original pact.

The argument is that nullification is wrong because it would allow individual states to violate the terms of the original pact when constitutionally legitimate Federal action is deemed inconvenient.

It’s precisely because of the anti-Constitutionalism of nullification that people are opposed to it.

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Stephan Kinsella December 3, 2010 at 12:49 pm

No, it wouldn’t. You speak from ignance. Read Woods.

and if it did–good.

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Daniel Kuehn December 3, 2010 at 1:04 pm

I haven’t read Woods but I’ve listened to several versions of his lecture on nullification. Unless Woods takes a completely different approach in his book than he does in his lectures, I have to agree with scineram.

Might I submit, Stephan, that you are wrong to say that scineram is arguing from ignorance and that the wedge between you and scineram emerges from a difference in your views on “the whole point of having the union in the first place”.

It seems unnecessary for you to accuse others of ignorance, when this seems like the far more likely explanation for your disagreement.

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Stephan Kinsella December 3, 2010 at 1:07 pm

MAdison and Jefferson favored nullification. Were they against the Union? Come on, this is nonsense.

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Ben December 3, 2010 at 1:55 pm

I think the whole crux of the argument is that if the Federal Government is telling the states to do something that the state believes to be unconstitutional, then the state has every right to nullify that law. After all, the Federal government is only allowed as much power as the states grant it, not the other way around. As long as the states are not doing anything outside the bounds of the constitution, then there is really nothing the Federal government can do.

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Mark December 3, 2010 at 2:33 pm

I’ve often entertained different constitutional amendment ideas that would reign in the federal government, but I decided the only one that will work is an amendment that takes away the federal government’s power to tax and forces it to subsist on voluntary contributions from the state. That’s the only one that transform the federal government from master into the agent of the states intended by the original ratifiers of the Constitution.

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Ben December 3, 2010 at 3:24 pm

I’ve often wondered (since I got my first paycheck at 15 and saw how much I was paying in tribute), why do the states tolerate the federal government taking their money and then making them jump through all kinds of hoops to get back the money that belonged to the state in the first place?

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J. Murray December 3, 2010 at 4:06 pm

40 out of the 50 states are net tax recipients. It’s just another matter of tyranny of the majority. The 40 states simply outvote the 10 states that send up more in forced tribute than ever get back.

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Nikolaj December 3, 2010 at 8:12 pm

Stephan you said:
“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”

Would not such a request be an explicit recognition that now the right to nullify does not exist (when it clearly exists, see Woods, Nullification)?

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Stephan Kinsella December 4, 2010 at 9:25 am

Fair point; and one advantage of nullificaiton is that it can be done NOW by one state standing up to the feds. They don’t need to wait for such an amendment. But I’d take it anyway.

Same with secession: it is a right too, but the feds have muddied the waters so I would be happy with an amendment making it clear, even though arguably it’s “unnecessary”. The state has made unnecessary things necessary by its predictable chicanery.

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RWW December 3, 2010 at 9:36 pm

States don’t have rights. This whole discussion puzzles me.

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Stephan Kinsella December 4, 2010 at 9:24 am

This is a tired old argument. Everyone knows that “states rights” doesn’t mean states have rights, any more than “property rights” means property has rights. IT simply refers to the limited and enumerated powers nature of the federal state.

REPLY

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