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Randy Barnett takes to the Wall Street Journal's op-ed page to argue for a "federalism amendment" to the Constitution. A noble idea, but it seems that the only component that would have any teeth is the repeal of the 16th Amendment. As the Restoring the Lost Constitution author well knows, the elected branches of the federal government already ignore the Ninth and Tenth Amendments. The political class mostly rejects the doctrine of enumerated powers, reducing the Constitution to a set of procedural constraints like Robert's Rules of Order.

The other problem is that state governments are just as apt to beg for federal money as they are to assert their constitutional prerogatives against an overweening federal government. So I'd be skeptical that a constitutional convention would produce anything so bold as a 16th Amendment repeal or direct prohibition on Congress regulating an activity that takes place wholly within a single state, except in cases of war, treason, or insurrection.

View all comments (7) | Leave a comment

RM| 4.23.09 @ 1:07PM

"Beg for federal money." Let me get this straight. We are loaded with federal mandates that rarely seem to show any benefits, and, actually, seem to make matters worse in many cases. Fatherless children, perpetual poverty, rise of gangs and lawlessness, the burden of healthcare and schooling for illegal immigrants, for example, are all traceable, in at least some measure to wrong-headed federal muck ups.

Then the feds take a bunch of money from the states' citizens.

So, the feds burden us with harmful mandates, take our money and when they deign to "give" it back, the states are now "beggars."

Exactly what the feds want. I maintain that no one, not even the feds can "buy" our (unalienable - not amenable of transfer, sale or purchse) rights with any currency, let alone our own money.

It is not incumbent on a state not to take its own money back before it asserts its protection of its citizens' rights.

It is entirely by the feds design that the states' need to rely on "federal" (read, "our") money to make their budgets.

We need an enumerated powers act.

Becky| 4.23.09 @ 1:34PM

I read that editorial earlier, and on Volkoh, and he brought up "The American" article, which I also read yesterday. Victor Davis Hanson made references critical years in our nation's history.

I would like to believe we can't go down, or at least very far down the road the current party in power would like too, but am not so sure. Supposedly more Americans now think we are going in the right direction.

Or are movements are the brightest before they burn out? I know our narcissist culture can turn on their heros pretty quick. I assume that is why we are seeing continual campaigning.

Scott| 4.23.09 @ 2:12PM

The allure of federal money is a large reason why states have allowed themselves to be turned into minions of the federal government. Even though it comes with strings, I don't see the states giving up the money (which repeal of the 16th Amendment would require), so instead craft an amendment so that keep the money but lose the strings.

My suggestion would be to simply constitutionally mandate that the lion's share of revenues from such a tax (say 2/3) go directly to the states, apportioned according to the number of citizens in each state.

Such a move would significantly reduce the revenue available to the federal government, forcing it to retrench and restrict itself to its core (i.e., constitutionally enumerated) functions. In addition, freed from the threat of losing the cash, I think you'd find the state governments more than willing to fulfill their constitutional role as a check and balance on federal power.

Old Texican| 4.23.09 @ 3:05PM

How many States are needed to call a constitutional convention?
Ken

Tim| 4.23.09 @ 4:23PM

How many States are needed to call a constitutional convention?

Pardon, but I think you meant, how many of the 57 states are needed...

Red Phillips| 4.23.09 @ 5:08PM

'The political class mostly rejects the doctrine of enumerated powers"

That would obviously include the law professor singing the praises of the Voting Rights Act on the home page.

jojo| 1.11.10 @ 2:15AM

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