Randy Barnett's Bill of Federalism

I've been mulling this since yesterday. It's a more refined version of the federalism amendment Randy Barnett proposed last week. There are ten proposed amendments, and I can't excerpt them all so go take a look. I really like most of the suggestions, with the exception of these a few:

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of the legislatures of two thirds of the states, any law, regulation or order of the United States shall be rescinded.

No and no. You want to change legislation, you elect different people to Congress. Letting a majority of states do an end-run around the entire system of federal governance is a big mistake. For example, if this amendment had been law, it's entirely possible that two-thirds of the states would have ended the Iraq War in 2006 and rescinded the War on Terrorism AUMFs.

There are some powers that we, as a People, have committed to a national government. Those powers should remain with the national government. The national government and the state legislatures have different interests. Tying them so closely together, actually making the national government no better than a puppet for highly contested issues is not what the founders had in mind and it does not "restore the balance" to government, as Barnett's preamble states.

Moreover, if Barnett's first and second proposed amendments are passed, the national government's current overreach will have ended and there'd be no need for this one. At most, if you want to give state legislatures a bit more say in Congress, repeal the Seventeenth Amendment and give them back the power to select Senators.

Similarly, the eighth proposed amendment, the balanced budget/line item veto, seems ripe for abuse. Fortunately, it seems unnecessary if the amendments rescinding the income tax and curtailing federal power pass.

What do you guys think? Barnett writes that this is still a work in progress. Do you have suggestions or modifications you want me to forward to him?

Oh, one more thing: I would like to see the Tea Party movement start to adopt this type of concrete proposal. This shouldn't just be about protesting futilely while President Obama drives this country over a cliff. Now is the chance to make revolutionary changes in our system of governance. Start with the proposal now and as things get worse (which I cynically expect them to, especially after cap and tax) many more people are likely to think, "Huh, maybe we can do something about it."

That's party of the beauty of this proposal. This isn't rocket science to explain. No income tax. No death tax. No federal meddling in state affairs. Term limits. No judicial activism.

posted by Gabriel Malor at 08:29 AM

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