The American Spectator : Strengthening Federalism

Text Size

Strengthening Federalism

By James M. Thunder on 11.16.10 @ 6:08AM

The time is right for serious action on this fundamental constitutional matter.

Periodically, the issue of federalism, that is, the role of the Federal Government vis-à-vis the role of the states, is the subject of attention across the country. So it is again.

Forty years ago, President Nixon tried to rebalance the authority between the Federal Government and the states with his “New Federalism.” Under this “New Federalism,” the Federal Government continued to take our money, but some of it was sent by the Feds to the states through “block grants.”

Thirty years ago, President Reagan appointed the members of a Presidential Advisory Committee on Federalism and the Coordinating Task Force on Federalism. There was talk of reallocating programs between the Feds and the states. For example, the Feds would assume all responsibility for Medicaid while the states assumed all responsibility for welfare and food stamps. There was talk of sending Federal revenues in block form to the states for these purposes.

Federalism isn’t all about money — as illustrated currently by the number of states contesting ObamaCare and by the Feds’ attack on Arizona’s law dealing with illegal immigration. Twenty years ago, the National Governors Association promulgated a six-page policy statement on federalism that is as relevant today as it was then. (Reprinted as Appendix A (Aug. 1988) to Hearings on Constitutional Reform of Federalism: Statements by State and Local Government Association Representatives (Jan. 1989).) It included a recommendation for a constitutional amendment that would allow the states to initiate constitutional amendments.

My purpose here is not to talk about money. And it is not to talk about specific subject matters, like healthcare or immigration. Rather, I want to suggest ideas for what we might do to strengthen federalism in the way of structures or processes. And I solicit your ideas.

I submit three ways in which we could strengthen federalism:

(1) Every Federal Bill Will Contain a Statement on Its Constitutionality

Congress should enact a law like the “Enumerated Powers Act” introduced by Congressman John Shadegg (R-AZ) that would require that every bill introduced in Congress contain a statement on the constitutionality of the multiple parts of the bill. No member of Congress, much less a Speaker of the House, should be allowed to dismiss a question as to a law’s constitutionality with “Are you serious?” as Speaker Pelosi did in October 2009 with respect to ObamaCare.

I suggest that the statement on constitutionality in every bill begin with language that every member of Congress and every citizen will see:

Under the United States Constitution — that every member of Congress has taken an oath to support, Congress may enact laws only if they fall within the subject matters enumerated under Article I, Section 8, as interpreted by the United States Supreme Court. These “enumerated powers” are few. The power to legislate on all other subjects resides with the states, as implied in Article I, Section 8 of the original 1789 Constitution, and made explicit in the Tenth Amendment, part of the Bill of Rights ratified in 1791.

(2) Encourage States to Develop and Adopt Multi-State Laws

We should encourage state legislatures to develop and adopt multi-state laws. State legislatures enact laws having analogues in other states through a variety of processes of varying formality.

The most informal process is simply word-of-mouth among legislators of the various states. Also, state and national organizations may bring to the attention of legislators in one state the legislation pending or passed in another state. There are, of course, associations of state legislators, such as the National Conference of State Legislatures and the American Legislative Exchange Council. These actively trade model legislation. And there are the associations of governors, such as the National Governors Association and those organized by party (e.g., Democratic Governors Association) and by region (e.g., Southern Governors Association), that do the same.

Another process by which a state legislature may consider laws passed by sister states is by way of the National Conference of Commissioners on Uniform State Laws (NCCUSL), a private organization consisting of appointees by the state governors. Over the past 60 years, the NCCUSL has proposed to the states some 150 model and uniform laws covering a variety of topics, available on its website and in a three-volume work called Uniform Laws Annotated. One such uniform state law is the Uniform Commercial Code (UCC). Every state has adopted it, some with a few minor changes. In the world of business, the UCC is pervasive. It governs sales, secured transactions, letters of credit, and more. It is difficult to conceive of modern business being transacted in America without it. Congress could have passed such a law under the Constitution’s Commerce Clause. Instead, the NCCUSL and the American Law Institute drafted the document over a ten-year period and then proposed it in 1952 to the states for their adoption. Still another process by which state legislatures may work in concert is the development of interstate compacts. They are formally submitted to Congress as required by Article I, Section 10. Many such compacts create intergovernmental agencies such as the Port Authority of New York and New Jersey (owner of the World Trade Center), the Tahoe Regional Planning Agency (California and Nevada), and the Colorado River Compact (Colorado, New Mexico, Utah, Wyoming, Nevada, Arizona, and California). The Council of State Government lists 195 compacts that it believes are currently in force and do not deal with state boundaries. I believe Congress should review its procedures to ensure that it encourages multi-state cooperation in resolving regional or national problems.

(3) Create Committees of the States to Approve Federal Agency Rules

Page: 1 2 >

About the Author

James M. Thunder is a Washington, D.C. attorney.

Letter to the Editor View all comments (61) | Leave a comment Leave a comment

Brian| 11.16.10 @ 7:50AM

We had such a committee of the states until 1914. It was called the United States Senate. Until then senators were elected by the state legislatures instead of directly elected by the people. We could put ANOTHER layer of federal bureaucracy in place and create another bunch of power-hungry Washington elites; or we could simply repeal the 17th amendment.

Ken (Old Texican)| 11.16.10 @ 8:10AM

Mr. Thunder
Thank you for that.
I have a couple of thoughts:

One...Those committee members must reside in their respective States to preserve their perspectives from the "hustings"...Not DC

Two...in this age of the internet and video conferencing...they could communicate very nicely, but remain outside the beltway dance.

ARealist| 11.16.10 @ 8:48AM

The oppressive, stifling, near tyrannical role of our elitist, self-anointed Federal Govt. became inevitable as a result of the american civil war. Once it became a "fact" that no state had a right to secede there was really no way for a state or states to combat the overwhelming authority of a bureacratic, socialist (that's what is is folks !!) all powerful federal govt of, by and for the ruling, mostly millionaire, political elites. Yes, the civil war ended slavery - a very good thing - but it also planted the seeds of the destruction of our constitutional republic. Our federal "law makers" routinely exempt themselves from laws they foist upon the citizenry, vote themselves raises, benefits all paid for by the citizens. They do not read many of the bills they pass. They have abrograted their responsiblity to govern by appointing and allowing unelected bureacrats (DOE, EPA, etc) to impose, BY DIKTAT, rules, laws, regulations, etc. These bureacrats are UNELECTED and have the power to fine and imprison citizens.
And the states are powerless -literally - to reject these diktats. Unless states very seriously threaten to leave the union, this abuse of power by the ruling elites in Washington, DC will only get worse.

Big Tony| 11.16.10 @ 9:47AM

Good comments, however The War Between the States was not a civil war. A civil war is a war between to factions in the same country. The War Between the States was fought between the CSA and the USA. The CSA lost and the states that comprised it were forced back into the union of the USA at the point of a gun.

Thomas| 11.16.10 @ 10:19AM

While it is technically true that the War Between the States was not a "civil war", it was considered so by most of the people of the United States of America. The residents of the Confederate States of America were seen as being in open revolt against their elected government, the Federal Government of the United States of America, by residents of the North.

Nostril | 11.17.10 @ 1:18AM

Hi Thomas,
A civil war is between factions for control of a country.
The southern states wanted their independence, not control of the United States. It really was the War for Southern Independence. Slavery was only one of several points of severe friction, many of which paralleled the reasons that the colonies 'seceded' from England. The 10th Amendment assures a state's power to leave the United States, because the federal government has no enumerated power to stop a state from leaving. There is no Constitutional requirement that 'the Union be preserved'. If that had been required, it never would have been ratified in the first place. The states had just overthrown one tyrannical power.
Related to this, there are 4 articles on myths about Lincoln that point up some fascinating history, on the Wolves of Liberty.com site.

Impeach Don't Wait| 11.16.10 @ 10:49PM

"Once it became a "fact" that no state had a right to secede there was really no way for a state or states to combat the overwhelming authority of ...."

Wow! Just my thoughts exactly not many days ago... I keep telling myself the states are sovereign... can assert their rights against a dominant federal overnment... can secede if needed... then I come to the Civil War and... my argument falls flat! Now I know why! The Union was preserved but not by mutual consent. How sad. Hmmm. And how problematic.

Mike Rogers| 11.16.10 @ 11:55PM

And this is why the revered founder of the Republican party, AKA the tyrant Lincoln, is held in equally low esteem by real proponents of Federalism as the RINOs who purport to lead the Republican party today.
A ruling class tyrant is just as dangerous any time, any place - vote 'em out, send DemInt reinforcements, elect the BEST governors you can find, and repeal the 16th and 17th. Make the Federal government submit a bill to the states for the common defense and foreign diplomacy, and starve the rest of it as unconstitutional - oh, just maybe a department of commerce to enforce original intent of the commerce clause - free trade between states.

DanH in Alaska| 11.16.10 @ 8:58AM

Since I don't believe we'll ever be successful in repealing the 17th amendment this represents an interesting way around it.

Ken - I’d add the suggestion that both House’s of Congress only meet in Sodom on the Potomac for swearing in and then it’s back to their respective states to reside amongst us proles. They can accomplish any and all manner of business via internet and teleconference.

Old Soldier| 11.16.10 @ 9:06AM

I agree with your suggestions to break the tyranny of regulators - but we have to end all forms of "revenue sharing" and block grants. Money is used as a hammer by the Feds to beat the states into submission.

Speed limits, drinking ages, DWI rules, road construction, etc... have been forced on the states because our big brothers in Congress think they know better than the locals.

txn4ever| 11.16.10 @ 11:31AM

Exactly! We send money to Washington. They take a big bite out of it and then send it back to us. Usually with the requirement that we garauntee some minimum level of spending based on some arbitrary formula essentially locking us into ever increasing levels of spending.

Jeff R| 11.16.10 @ 9:20AM

Much, much harder to achieve, but worth mentioning:

1) Constitutional amemndment clarifying the Commerce Clause so that the federal courts and Congress can't use the clause as an excuse to exceed federal authority in matters that should be exclusively the states - which are most matters.

2) Block federal bailouts to insolvent states - do this as a matter of policy, and enact legislation that creates state bankruptcy procedures. Greater federalism means states need to conduct government responsibly.

3) Constitutional amendment limiting federal spending to a percentage on the nation's annual GDP. An old Milton Friedman idea. Such would make for a more responsible national government and put a lid on the outflow of dollars that DC pols rely on for leverage with the states.

4) Make Congress part time again. That means Congress only in session part of the year. Reduce members salaries and benefits. Slash staffs. Less legislating means less mischief-making and, perhaps, less overreach, which may enhance federalism.

Old Soldier| 11.16.10 @ 12:41PM

Yes! - and get rid of all federal pensions - particularly for members of Congress. Let them take the same chances with a 401K as the rest of us.

Peppermint Tea | 11.16.10 @ 9:29AM

First, repeal the 17th amendment.

Second, abolish the Dept of Interior, and give 99% of the Federal Land back to the states. They can keep the land that the Post offices are on--never mind, the USPS is bankrupt and due for privatization. And the Dept of Defense should give 3/4 of their land back to the states. (And the states would be smart to give it to the people.)

Third, beg California to secede before we get stuck with the bill. The US can readmit them once they get there house in order.

Fourth, encourage States to take over their own gold and silver minting--it's in the Constitution.

Fifth, let the states nullify.

I could keep writing ideas all day.

Bill Diebold| 11.16.10 @ 10:01AM

Dear PT
Rarely have I read more lucid thoughts.
You have the wisdom of our founding fathers...

RCV| 11.16.10 @ 12:36PM

It would be nice if those who purport to cherish the Constitution would actually read it. Peppermint thinks we should "encourage States to take over their own gold and silver minting - its in the Constitution.

No it isn't.

The Constitution is quite clear on the subject. Article I, Section 10 expressly states that "No State shall ... coin money." It goes on to prohibit states from "making any Thing but gold and silver coin a Tender in payment of Debts." But all that provides is that States may not authorize paper money -- they still can't coin their own money. That's Congress's power in Article I, Section 8.

RCV| 11.16.10 @ 4:25PM

Furthermore, Peppermint, according to the Tax foundation, for every year over the past twenty years, California has contributed more to the federal budget than it has received back. It's the red states -- Alabama, Alaska, Arkansas, Idaho, Iowa, Kansas, Kentucky, Louisiana, Maine, Mississippi, Missouri, Montana, North Dakota, Oklahoma, South Carolina, South Dakota, Tennessee, Utah and Virginia -- which have been living off the blue state revenues for decades.

Nunya| 11.16.10 @ 6:47PM

RCV, you're correct as I believe most of the tax receipts come from fuel taxes in CA. However, the real question is not who is "living off blue state revenues", the question is: Why is the Federal government sending that money to the other states? They should not be in the business of redistribution of wealth. Period.

They use their redistributive powers as a club to submit the states, and We the People.

Impeach Don't Wait| 11.16.10 @ 10:58PM

"Third, beg California to secede before we get stuck with the bill. The US can readmit them once they get there house in order."

LOL. Now that's funny! (I'm in California--or shall I say, The People's Republic of California?)

Jerry Brown AND Gavin Newsom?!!!

We apparently haven't yet hit bottom... or the masses would have voted differently. We'll see...

LeoInTheWoods| 11.16.10 @ 9:43AM

As I don't believe we can have a constitutional convention without mucking up the first and second amendments, I'm opposed to one.
We need strong laws to limit and regulate the actions of politicians and government capabilities. The American thing to do is to start by limiting government, then see what it can do in it's newly-limited role.

Thomas| 11.16.10 @ 9:54AM

ARealist is correct. The United States of America underwent a sea change in 1865. It was no the death of federalism, however, but the death of Republicanism and the ascendancy of Federalism. In the old Republic, the Federal Government was still largely subservient to the will of the State governments that comprised it. After the Civil War, the Federal government was in the ascendancy and State Governments, though Constitutionally separate, were in fact subservient.

Today, except for maintaining the infrastructure [and they can't even accomplish that without federal monetary assistance] state and local governments are largely irrelevant. It is possible to limit the power of the Federal government, but that can only be done through Washington. The ability for this to be accomplished through the States died on April 09, 1865.

NeilBJ| 11.16.10 @ 11:04AM

To say that the ability to limit the power of the federal government died on April 9, 1865 is to grant the premise that the exercise of force can determine the outcome of a princpled argument.

As some one once, can I win an argument between you and me merely by punching you in mouth?

States rights died under the brutal tyranny of Lincoln only if we accept the dictum that might makes right.

YeloStalyn| 11.16.10 @ 12:32PM

While the debate may continue on philisophical grounds... the pragmatic and realistic result is that yes, might does make right. Read J.J. Russeau. He makes a perfectly good argument that states might does not make legit. However, one can not keep a robber from stealing their wallet by yelling at them, "That's not right!" If it were true that the pen was mightier than the sword then we would still refer to ourselves as "These United States" (a multitude of individual soverign states) as opposed to "The United States" (a monolithic subjegation of multiple parts to form a single entity... the Federal Government).

Thomas| 11.16.10 @ 1:15PM

Actually might does make right. Otherwise Rome would still dominate Europe, or German or Japanese or, perhaps, Iroquois would be the official language of the United States. And after 145 years of the continued active reduction of State's Rights and power by the Federal Government, it is almost impossible to regain those rights and power.

RCV| 11.16.10 @ 1:36PM

Thomas is right, but it wasn't the Civil War itself (and it was indeed a civil war) or tyrannical Lincoln who transformed the American federal structure, it was the Consitutional process of amendment that deliberately did so.

The Civil War was a defining moment for that generation, every bit as momentous as the Revolution was for Washington's generation. It was a transcendant experience that led many Americans, led by the Radical Republicans, to rethink the federal-state balance. They saw individual state governments as divisive, and the lack of national unity a limitation on America's future. They deliberately set out to transform the country from a collection of semi-autonomous states into a Nation. And they succeeded in doing so by Constitutional Amendment. The 13th through 19th Amendments completely transformed our governmental structure. The 14th for the first time placed Constitutional limitations on State laws which transgressed rights guaranteed citizens by the federal Constitution (such as the Second Amendment); the 16th for the first time authorized the federal government to tax incomes; the 17th transformed the Senate from a body of representatives of State Legislatures to a popularly elected body, just like the House. The 18th took away State authority to regulate liquor. And the 19th provided for universal suffarage, replacing a pastice of state laws on womens' voting rights.

These were not accidents or isolated changes. There were an intentional drive to forge a Nation - in the words of the Pledge of Allegiance, also adopted at that time, "one nation, indivisible" ("under God" wasn't added until the 1950s).

One can disagree with this trend, but it was deliberate and done in accordance with the Constitution itself. If you don't like it, the Constitution is there to be amended once again. But pretending we're still back in 1850 isn't helpful.

Tim*| 11.16.10 @ 2:54PM

Abraham Lincoln, First Inaugural Address, Washington, D.C., March 4, 1861 Image

"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 their revolutionary right to dismember or overthrow it."

RCV| 11.16.10 @ 3:49PM

...and then Lincoln demonstrated what happens when people take up arms against a Constitutional republic. As Sam Adams himself said, speaking of Shays Rebellion, "Rebellion against a king may be pardoned or lightly punished, but the man who dares to rebel against the laws of a republic ought to suffer death."

Go ahead, Timmie, make our day.

Thomas| 11.16.10 @ 4:10PM

Actually, the Confederate States of America [CSA] did not take up arms against a Constitutional republic. There exists no clause in the Constitution that forbids a signatory from seceding from the Republic. South Carolina seceded from the Union on December 20, 1860 and demanded that troops of the United States of America vacate and surrender Fort Sumter, basically an island being completely within the recognized territory of the State of South Carolina. The U.S. Army commander refused and the United States sent warships into Charleston harbor, now within the territory of a member state of the Confederacy, to supply and further invest the fort. It wasn't until April 12, 1861 that the Confederate forces forces finally felt compelled to forcibly remove the trespassing Union forces.

So from the Northern perspective, the Confederates were not acting as a legitimate foreign government to a forcible invasion of their sovereign territory, but rather, as a rebellious group of traitors taking up arms against their rightful government. The Confederates saw it exactly opposite.

RCV| 11.16.10 @ 4:16PM

The Constitution was an agreement entered into by the States with each other, that set up a national government which had certain powers, and certain others were reserved to the states. The document makes clear that states cannot act as independent countries. It also provides a mechanism for amending the agreement. That is the sole means provided for adding or detracting powers. The Southern states unilaterally refused to abide by the agreement by setting up their own supposedly independent government. A contract which can be unilaterally abrogated by one side is not a real contract. The North had the better side of the argument in my humble view, and in any event it lost the argument militarily as well.

RCV| 11.16.10 @ 4:35PM

...and on this day in 1957, Notre Dame ended Oklahoma's 47 game winning streak - still the longest in college football history - by winning
7-0 after an otherwise miserable season. Every now and then, the Almighty turns back from more pressing things and remembers the Fighting Irish.

Tim*| 11.16.10 @ 5:51PM

Bullshit !

"Where unilateral termination is permitted in the Contract, consent of the other party is not required, the agreement is no longer binding, and the parties have no further obligation to perform. "

RCV| 11.16.10 @ 6:09PM

You're so dumb, Timmie, you don't understand your own posts refute you. Unilateral termination ISN'T provided for in the contract (Constitution), therefore consent of the other parties is required. Duh.....

Al Adab| 11.16.10 @ 6:46PM

Under the Constitution States may enter into agreements with one another by consent of the majority of states voting in congress. The South had the votes and could have been "allowed" to enter into their confederacy had they passed such a bill in the Congress. Just another "might have been" in our history.

RCV| 11.17.10 @ 2:58PM

They could have entered into a compact with other states with Congress's approval. But they still would have been prohibited from doing the things the Constitution prohibits States from doing -- raising armies, entering into foreign or military alliances, coining money -- in other words, acting as if they were an independent nation.

Tim*| 11.16.10 @ 6:49PM

You're Even Dumber ObamBoy LawBoy, because you said, "A contract which can be unilaterally abrogated by one side is not a real contract. "

Aaaand, The Constitution doesn't stipulate that States can't unilaterally terminate The Agreement.
“I consider the foundation of the Constitution as laid on this ground that 'all powers not delegated to the United States, by the Constitution, nor prohibited by it to the states, are reserved to the states or to the people.' To take a single step beyond the boundaries thus specially drawn around the powers of Congress, is to take possession of a boundless field of power, not longer susceptible of any definition.”
Thomas Jefferson

RCV| 11.17.10 @ 3:01PM

I am, Tim, as you say, a "Lawboy", which is why I know what I was taught in law school: a contract whose obligations a party may ignore at will is an "illusory agreement". That's why a right of unilateral abrogation must be explicitly provided for in the document. Otherwise, a party is agreeing to do something only if he chooses to -- that's an illusory "obligation".

YeloStalyn| 11.16.10 @ 4:33PM

This is exactly right. There was not an uprising of citizens within and under the U.S. government but rather an annexation of land by its inhabitants into a seperate entity from the U.S. At this point, it was a conflict of a force that, by its refusalt o peacefully leave, was invading a seperate country. By force the U.S. then subjegated the citizens of a foreign nation to its rule. Tyranny by force. And in order to keep its newly acquired subjects in line, those in power (the old Republicans then eventually the progressives of the turn of the century) began to use the Constitution to neuter the states and make them meaningless divisions of a single population. The 17th Amendment may be the most clear example of this. No longer did the States have any stake in national politics. There were to be 3 seperate powers within the United States... the Federal Government, the States, and the People. The power the held was originally supposed to be inverse to their jurisdiction. A person in charge of himself should have the most freedom and power whereas the Fed who governed the entire nation was to have limited power AND scope. We removed scope... and once that was done there is no way left to limit its power. We must start first and foremost by limiting its scope. Once that is done, the power will check itself. Unfortunately, the only options we have for limiting federal scope is a) the SCOTUS (which has an abysmal history on this) b) the Congress and Executive branch (self policing? Riiiiight!) and c) the people. But what power does the people hold? The vote? That is only a way to increase chances of self-policing politicians begin to curb the power of DC. We still have a chance, I suppose, that this will work. If it doesn't then we have dark times ahead.

Tim*| 11.16.10 @ 5:19PM

Apparently, He Was A Bullshitter Just Like You ObamaBoy LawBoy .

Thomas Jefferson, letter to William Stevens Smith, November 13, 1787:

" God forbid we should ever be twenty years without such a rebellion. The people cannot be all, and always, well informed. The part which is wrong will be discontented, in proportion to the importance of the facts they misconceive. If they remain quiet under such misconceptions, it is lethargy, the forerunner of death to the public liberty . . . And what country can preserve its liberties, if its rulers are not warned from time to time, that this people preserve the spirit of resistance? Let them take arms. The remedy is to set them right as to the facts, pardon and pacify them. What signify a few lives lost in a century or two? The tree of liberty must be refreshed from time to time with the blood of patriots and tyrants. It is its natural manure."

wickssan| 11.16.10 @ 10:23AM

Interesting colunm. I have a couple of comments:
While citing the constitutional references to justify legislation is a good thing, it needs more. The courts have made determinations concerning the constitutionality of statutes that may be very similar to proposed legislation in many cases. While it may seem like added complexity (and a little like "law office history"), both legislators and citizens would benefit from a much more complete explanation. Secondly, Peppermint Tea is correct, it would be much easier and correct to repeal the 17th Amendment, rather than establish all those advisory committees. Essentially our movement from a dual federalism governing principle to a more unitary form of government took place in the late 19th and early 20th centuries, and it was driven by political forces - Progressives and New Dealers (it was the Progressives who fought for both the 16th and 17th Amendments) - and SCOTUS in their change of focus on the individual rights outlined in the first ten amendments and defering to the Congress on the issues concerning "economic" rights. We need both political change and a change in the approach of SCOTUS to move back to the dual federalism of the past.

Al Adab| 11.16.10 @ 10:29AM

A good beginning to approach the reconstruction of strong a Federal system. The Constitution limits the role of the National government to its enumerated powers. Shaddeg introduced the enumerated powers act every year of his tenure. It never made the floor.

All the powers reserved or retained by the states need to be exercised by the States. States should jealously guard their perogatives and not be so eager to allow Federal intrusion.

Simply put why do we, the citizens of the several states, send our money to Washington where it supports huge agencies and then act happy when a portion of it is returned? Why send it at all? Why cannot the states act, or not as they choose, where the Federal government is enjoined from action?

Earmarks as a symbolic beginning need to go. In the Jackson era the proposal was for internal improvements. Madison though it a good idea, but wrote that the Constitution needed amending to allow it. It was never amended for that purpose, yet we expect every Representative and Senator to "bring home the bacon". Let us stop asking for handouts, keep our own monies and allow our states to address issues of importance to them. Not all have the same needs or wishes.

NeilBJ| 11.16.10 @ 10:52AM

I agree in principle that every bill proposed by Congress should contain a citation of the Constitutional authority for that bill.

However, I see two flaws in that proposal.

The first is a practical one. So much unconstitutional law has been ensconced into the farbric of our govenment that it would be very disruptive to all of sudden only pass constitutional laws. For example, how would Congress handle a bill to increase funding of Social Security? Then there are all the unconstitutional federal departments and agencies.

The second flaw should already be apparent. No part of the federal government should have the power to determine the extent of its own powers. We have all seen how well the Supreme Court has upheld the Constitution, haven't we? Commerce clause, any one?

We need to follow the lead of France, and establish a Constitutional Commission but not one whose members are appointed by the President.

It is the 50 sovereign states, 13 of which created the federal government in the first place, that should have the final say on what is and is not constitutional. A formal Constitutional Commission consisting of members from each state should be set up.

YeloStalyn| 11.16.10 @ 12:39PM

It would be great to force people and pols to realize that SS and many other agencies are unConstitutional. What we need is a way to enforce the 10th Amendment upon SCOTUS. Until that is done we have no check against a growing federal government because SCOTUS, the body that should be our defender, is the partner in crime against us.

States need to start filing court cases using the 10th Amendment as its sole defense of not adhereing to federal mandates (ObamaCare is a great start because it already has such public opposition). You never hear anyone at the state level talk about their own sovereignty. We need to start elected Statists to our State governments... not the federal level.

And we would do wise to recall the advice of Jefferson... when in doubt about the meaning of the Constitution we should seek primary sources from the writers and founders about their intent and use that as a legal groundwork to move forward from. Then, we should do the other thing he says with regards to courts... when they rule in a way that is not in line with the Constitution we should simply ignore them. God how I wish I could recall where he said that... but I can't.

Chris| 11.16.10 @ 11:25AM

The practical problem is that the states, cities, counties, all rely upon "federal" money for their project. As everyone knows, if you accept federal money you have to follow the federal guidelines and rules. for example, the feds required the states to lower the DUI treshold to .08 from .10 as a condition to receiving federal highway funds. another example is the student loan program, if a college accepts federal student loans then it has to comply with all the federal rules. grove city college in pa tested this before the us supreme court and lost. it then stopped accepting federal student loans.
the root of the problem is that the federal government taxes us and then funnels some of the money back to the with strings attached.

mac| 11.16.10 @ 11:37AM

I'm with Brian, just keep it simple and repeal the 17th amendment. Not only would it restore Federalism into the system as intended, but it would eventually deal with a whole host of other problems as well, such as the influence of lobbyists, special interest groups and the nationalization of the Senate races. It would force politics to become more localized thus keeping them focused on issues in individual states as intended. The parties would have to adjust to each state's issues to hold any office. A Massachusetts Republican is a far cry from a Texas one! The original rationale for its passage- to thwart corruption in politics- will no longer enable politicians the ability to hide corruption through the federal gov't bureaucracy and , hopefully, suffer the consequences. To Leointhewoods- you don't have to call for a Constitutional Convention to repeal an amendment, just the necessary majority votes from legislators and states.

Nose Hit| 11.16.10 @ 1:03PM

Let’s see—it’s 2010, and the United STATES of America has processed 234 years of human input since 1776, changing most basically from, a group of previously sovereign STATES, to a single entity willingly created, into today’s behemoth, the USA. And, this USA has irrevocably, IMHO, coalesced into overwhelmingly dominant power in DC, so that THE USA means the United States of AMERICA.

That is, just as relative to a state, a county is subservient, and to a county a city is subservient, states have become almost irrelevant in subservience to America.

Washington D.C. = POWER, and power corrupts, and today, given that America (notice how the name, “America” is oh so easily and generally used to stand for the “old” United States of America or the USA. Enemies don’t chant “Death to the USA”, but “Death to AMERICA”.) is admittedly the sole super POWER, what we are experiencing and witnessing is absolute power corrupting, ABSOLUTELY.

Worrying about ways to “fix” federalism is equivalent to fighting the last war by armchair generals. Or maybe we can use the saying, “closing the barn door after the horses have escaped the barn”, to indicate the truth.

What was the purpose of the Roman Empire? To create and keep order.

Even though the American “Empire” hasn’t been spread by aggressive “legions” like back in the day, what can justifiably be understood as “sphere of influence” is made up of “countries” or “nations” of humans that more or less follow the example of the free government of America.

So, America exists to create and keep ORDER, an “order” that is based on individual freedom, verses the un-America powers that seek to create their own form of dictatorial ORDER---nobody wants: CHAOS. Well, almost nobody!

Actually, the order-chaos split is one of the primordial gestalts with which to comprehend human activities.

Indeed, the very Universe is always tending toward DISORDER, and as tiny congregations of star-made elements, humans are physically going the same way.

All the mass murderers over time were disorder bringers, par excellence. A Hitler or a Mao or a Stalin dictated the “disorder” of many millions of fellow humans, in “order”, in their own belief system, to bring “order” for their “KIND”. Very unkind gentlemen!

IMHO, the Obama-Pelosi-Reid et al axis of devolving Power in DC represent the “legal” form of such splitting un-gentlemen.

The most prominent splitting “headache” these days is Islam. Talk about a beheading either-or!

The sword-driven slice this political “religion” rests on is servitude. After all, “Islam” means SUBMISSION. Talk about a simple formula for human success, that even an idiot can understand and follow---

Either become a Muslim, or be a slave to Muslims, or die!

To wrap up this analogy-driven rant, much the same form of a road to more POWER, leading to Absolute power, is being used by the Democrats.

Either become a Democrat, or be a slave of Democrats---as creators who must pay a large tribute of your creations, or as ignorant un-creators who get part of that stolen tribute in exchange for keeping Democrats in power--- or DIE, politically.

I can’t resist laying out one more analogy.

To make a car, say, it “takes” so many man-hours of work. From the instant of a bright idea, to putting that idea into a plan, to executing that plan, until the final product is completed, economics attempts to measure the cost, in ORDER to find a price to sell it and make a profit.

Just so, America represents billions, nay trillions, of man-hours of WORK by the approximately one billion humans who have ever been citizens of this “legally piggily” (R. Buckminister Fuller’s name) collection of people. The “costs” of all this work are completely embedded in the present “price”, that we are NOW paying.

Is there any PROFIT? Of course! We are still FREE enough to debate federalism.!

Joe Oliva| 11.16.10 @ 1:45PM

You folks should read the two books by Thomas Woods, 'Who Killed the Constitution', and especially his follow up book, 'Nullification'.

The second explains very clearly how in the earlier days of our nation, various states simply declared federal laws not conforming to the Constitution as nullified. They therefore did not have to obey such laws and they also would reassert their authority as Independent Sovereign States.

It is interesting to note that ours is the only nation that has separate polities called states. This was because any independent nation was always called such. Even today, our federal government has a State Department.

The original colonies were declared to be free and independent states, just like England, France, Spain, etc. There was never any indication that by forming a more perfect union to handle common problems, mostly defense, that any state was surrendering its sovereignty.

In his book, Woods gives examples of authoritative correspondence that listed the states individually. In fact, in those early days, the word UNITED as in the United States of America, was not capitalized. The correspondence referred to above would appear as the united States of America.

We need state legislators and governors to grow a set and back the feds down from their high and mighty attitude of dominance over us all.

Impeach Don'ot Wait| 11.16.10 @ 11:30PM

Sounds to me like we need universal (national) classes in the history of U.S. government, the Constitution, etc., --and no sloppy reinterpreting--or no one's gonna back anybody down from their high and mighty attitude of dominance.

GENE HAUBER| 11.16.10 @ 2:02PM

Abolish any agency that has not been needed or has proven not to work, for example:
DEPT OF ENERGY....back to DOD
DEPT OF EDUCATION......to the trash heap
and reign in EPA

ทาสีคอนโด | 11.16.10 @ 2:33PM

Mr. Thunder
Thank you for that.
I have a couple of thoughts:

One...Those committee members must reside in their respective States to preserve their perspectives from the "hustings"...Not DC

Two...in this age of the internet and video conferencing...they could communicate very nicely, but remain outside the beltway dance.

jrjr| 11.16.10 @ 4:25PM

Excellent discussion but take this one --- who won the "war" between the left and right since the 1930s? Why does anyone think it would come out any different if a push was made now? We have been cultivated by liberal thinking since then and it is now in our makeup. The glue that kept us somewhat on the correct path until the FDR era was faith and the church. Essentially that is also caput now. Faith and the church are now infested with shame, gays, abortionists, crooks, politically correct speak, etc.,.

George S| 11.16.10 @ 4:38PM

Why should every bill contain a constitutional affirmation? Article VI of the Constitution takes care of that:

["The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States."]

The oath of office for Congress is:

["I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God."]

If Congress cannot be faithful to their oath, which the Constitution requires of them, how will they be faithful to a boilerplate disclaimer atop every piece of legislation? The problem is following the Constitution -- if one cannot be trustful of doing so, then vote them out.

As far as Federalism goes, what makes us think that state and local legislatures grow in a different cabbage patch? While the federal government has prima donnas and elitists, the state and locals have some of the most unabashedly corrupt hacks to be found anywhere. They use federal dollars to cover state expenses so they can raid their treasuries for unions and cronies, or pay themselves into a higher lifestyle (Bell, CA?).

It doesn't end until the people rise up. We did; hopefully the much needed change is around the corner.

Michael Lynch| 11.16.10 @ 6:36PM

The so called "civil war" was more accurately named the "War of Northern Aggression"! This war was NOT fought over Slavery, as many revisionists would have us believe. The war was 100% rooted in the Federalism -vs- States Rights issue! Slavery simply became a tool of Mr. Lincoln to defeat the South! Mr. Obama is now forcing the issue of the Federal government versus the State of Arizona in the immigration dispute! The States created the Federal Government and have every right to protect the safety and welfare of the citizens when the Federal Government refuses to do so! Arizona is right in what they are doing, it is to be seen if they can withstand the pressure that is and will be exerted by those who would destroy our Sacred Republic and our INDIVIDUAL Freedoms, in the name of "democracy"!

Impeach Don't Wait| 11.16.10 @ 11:45PM

"The so called "civil war" was more accurately named the "War of Northern Aggression"! "

Interesting you should bring that up... It seems as though in school I heard it referred to as "The War Between The States." Sort of gives it a slightly different spin, doesn't it? Anyway, at the risk of inserting Wikipedia bias (not intending to), I thought the following excerpt interesting, as to different names for the conflict:

"The most common name, particularly in modern American usage, is simply "the Civil War". Although not used during the war, the term "War Between the States" became widespread in the Southern United States as historians searched for an ideologically acceptable name. During and immediately after the war, Northern forces often used the term "War of the Rebellion", while the Southern equivalent was "War for Southern Independence". The latter regained some currency in the late 20th century, but has again fallen out of use. Other terms often reflect a more explicitly partisan view of events, such as "War of Northern Aggression", used by some Southerners, or the "Freedom War", used by their black counterparts to reflect the celebratory nature of Juneteenth celebrations."

RCV| 11.17.10 @ 12:52PM

I always have to chuckle when I listen to Southern apologists talk about a regime which held 3.6 human beings in brutal slavery, and bought and sold children like cattle, as having been defending the cause of "liberty"! Sick, utterly sick.

gary siebel| 11.16.10 @ 9:40PM

LOL Utterly idiotic. Bring back the Nullification Doctrine and slavery, too, while you are at it. You are like the Dems who wasted their trump cards on irrelevant issues.

Nostradamus| 11.16.10 @ 10:14PM

We're all doomed

general summerall| 11.17.10 @ 1:44AM

Besides the situation of states vs. national govt authority there is also in the US the Native American Nations, who maintain some kind of sovereignty. Where do they fit into the national rights of authority system? Just curious.

Supreme Galooty| 11.17.10 @ 11:37AM

XXIX: The federal government of the United States of America shall raise revenue from no source whatsoever EXCEPT directly from the governors of the several states. Congress shall submit a budget to the President for his approval no later than July 1 of each year. The president shall have one week to approve or deny said budget and submit it to the governors of the States for their approval. The governors must approve said budget by a 61% majority before 31 July. If Congress should fail to produce a budget by 1 July, or if necessary approvals are not obtained, federal operations will be funded at 90% of the previous year's funding.

The States shall remit the funds required no later than August 31. The States shall provide funding in proportion to their representation in Congress. (Each State shall pay 2/100 of half the budget, and X/435ths of the other half, X being their number of representatives in the House of Representatives.)

If the federal government levies fines, tariffs, or any other fees against any person, agency or nation, the resulting funds shall be paid immediately to the several States, apportioned in accordance to their representation in Congress.

The 16th amendment is repealed.

Supreme Galooty| 11.17.10 @ 11:39AM

XXVIII: The 17th amendment is repealed.

Supreme Galooty| 11.17.10 @ 11:46AM

XXX: Legislation passed by Congress and approved by the President shall be approved by a 61% majority of the governors of the several States. Likewise appointments to the federal judiciary, after approval by the Senate, shall be approved by a 61% majority of the governors before said appointees shall be seated.

REB| 11.18.10 @ 10:49PM

We must be very careful on an con-con,opening up the constitution to these political whores in DC could cost us more than we know! Nullification and repeal are probably safer routes.A
Also states can band together and oppose the fed in diverse ways,many good ones already mentioned by others! Yes the South did have slaves...but so did the north, and they kept them after they supposedly emancipated the southern slaves. Also the utter disregard for states and the total destruction of their way of life can hardly be justifyed by the slavery issue,slavery is wrong but to destroy a way of life and then try to justify it under one wrong? If one wrong justifyed that wars outcome then God help the Northern states when their judgment comes.
Lastly the NVCCA National Veterans Committee on Constitutional Affairs is a group that proposes/drafts and seeds legislative solutions to lawmakers and others who work with legislation aimed at restoring the republic to her original glory,give them a hollar and they can fill you in on alot of good ideas for reforming the federal govt!

Latest Headlines

Not Ready for Primetime Players

Daniel J. Flynn|111 comments

Assessing a Week of Scandal

Matt Purple|123 comments

Oops, Maybe Government is Tyrannical

Marta H. Mossburg|61 comments

Soros Funds Anti-‘Torture’ Report

Mark Tooley|106 comments

Treasure State Treasury

Bill Croke|3 comments

My Generation’s Disease

Benjamin Brophy|66 comments

The View From the Other Side

George H. Wittman|16 comments

USPS: Radical Surgery Needed

Peter Hannaford|19 comments

The Spectacle Blog

The Spectator’s Spectacular: Most Read Stories, May 12-May 19

Patrick Ryan | 12:41PM

Elijah Harper, R.I.P.

Aaron Goldstein | 5.18.13

If Only the Tsar Knew!

F.H. Buckley | 5.18.13

Low-Level IRS Staffer: No, We Didn’t Mastermind This Entire Thing

Matt Purple | 5.17.13

UPDATED: IRS Acting Chief Apologizes, But Defends His Actions

Kaylin Bugos | 5.17.13

Voter Fraud Affected Election Results in Missouri