Bill of Federalism

Bill of Federalism
Created	May 13, 2009
Author(s)	Randy Barnett
Purpose	"To restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people"

The Bill of Federalism is a list of ten proposed amendments to the United States Constitution. It would enshrine in the constitution certain ideas based on states' rights and free market libertarianism. Law professor Randy Barnett drafted the bill in response to the recent movement to limit federal powers. The present and final draft of the bill was published on May 13, 2009, and incorporated much of the feedback that Barnett received in response to the previous draft. The previous draft of the bill was an expansion of an earlier 'Federalist Amendment' that Barnett composed as part of an article he wrote in the Wall Street Journal.

He plans to have the States call for a Constitutional Convention where they would propose the amendments comprising the bill. Alternatively, the United States Congress could propose the amendments to the states, as they have done every time a Convention has been called for.

The amendments, summarized by number below, would:

1. Disallow federal income taxes (i.e., repeal Sixteenth Amendment), as well as gift, estate, and consumption taxes; allow FairTax; require a 3/5 supermajority to raise or set new taxes
2. Set limits on the Interstate Commerce Clause
3. Disallow unfunded mandates, and conditions on funding.
4. Close a constitutional loophole that allows treaties to override established limits on power
5. Extend free speech consideration to campaign contributions, and to cover any medium of communication (including the Internet)
6. Allow a resolution of three quarters of the states to rescind any federal law or regulation.
7. Establish Term Limits for Senators and Representatives.
8. Provide the President with a line-item veto to balance the budget on any year in which it is unbalanced.
9. Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
10. Restrict judicial activism by mandating an originalist method of interpretation.

History

Randy Barnett.

On April 16, 2009, Randy Barnett appeared on the Glenn Beck Show to address the question, "What redress do states have who are tired of getting kicked around by the federal government?" Barnett proposed the idea of passing a constitutional amendment, and further argued that by threatening to hold a constitutional convention, the states could force Congress to propose the amendment to them.

Barnett then wrote an article for the Wall Street Journal entitled "The Case for a Federalism Amendment." It was published in the editorial section on April 24, 2009. In it he expounded on his idea for forcing Congress to propose an amendment to the states, and included a draft for a five-sectioned 'Federalist Amendment', which would strengthen states' rights and restrict federal power.

According to an interview he gave to PJTV, Barnett utilized the great volume of constructive feedback to further refine his ideas for the amendment. He also decided to disaggregate the amendment into multiple parts, in order that opposition to a few of the ideas would not sink the entire amendment. He decided to add some popular proposed constitutional amendments, addressing such issues as the fairtax, the line item veto, balanced budgets, and judicial activism, in order to build a broad coalition of groups that may advance the amendments. He hopes to have the Tea Party movement rally around this bill. He claims to have deliberately avoided some amendments that might be seen as 'kooky', such as the repeal of the 17th Amendment, which effected the direct election of senators rather than their selection by the state legislatures, lest they cast doubt upon the whole project.

On May 13, 2009, Barnett released the intended final draft. Barnett removed amendment 3 which declared the existence of Police Powers of states. He condensed amendments 4 and 5 which disallowed income and estate taxes respectively, into one amendment now listed as number 1. This made room for two additional amendments not present in the earlier draft. One prevents treaties from enlarging Congress' power, in what might be thought of as a Constitutional loophole. Another applies the right to free speech to any medium, including the internet, and also makes campaign contribution a form of protected free speech.

Further Development

The Bill of Federalism Project has been incorporated as a nonprofit agency in the State of Tennessee

Ratification Strategy

... First, that Congress shall call a convention, consisting of delegates from the several States selected by procedures established by their respective legislatures, for the purpose of proposing the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States; ...

Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism

Background

The Constitution is the Supreme Law of the United States. Article V of the constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment was ratified by State Conventions.

Resolution

Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.

Professor Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.

Criticism

The John Birch Society has criticized the idea of calling for a constitutional convention, calling it a "dangerous temptation" and a "threat to our Constitution." Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.

Amendments of the Bill of Federalism

Amendment I - Restrictions on Tax Powers of Congress

Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts, or estates, or upon aggregate consumption or expenditures; but Congress shall have power to levy a uniform tax on the sale of goods or services.
Section 2. Any imposition of or increase in a tax, duty, impost or excise shall require the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately be presented to the President of the United States.
Section 3. This article shall be effective five years from the date of its ratification, at which time the sixteenth Article of amendment is repealed.

Section 1 of this amendment would disallow federal income, gift, estate, and consumption taxes. It would explicitly permit a national sales tax, an idea which has been proposed in the United States as the FairTax. Section 2 would require a supermajority of three-fifths of both houses of Congress for any new tax or tax increase. Section 3 repeals the Sixteenth Amendment, and delays the implementation of the whole amendment for five years after it is ratified, to give Congress time to dismantle the IRS.

This amendment is partially a combination of the fifth and sixth amendments of the previous draft.

Amendment II - Limits of Commerce Power

The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful

emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

The Constitution grants Congress the power to "regulate commerce with foreign nations, and among the several states, and with the Indian tribes". This is amplified by the additional power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers..." This amendment would overrule the current interpretation of the commerce clause by removing three present applications of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.

1. In Wickard v. Filburn, the Supreme Court ruled that Congress could regulate the production of wheat by a farmer named Roscoe Filburn, despite the fact that Filburn did not intend to sell any of this wheat across state lines. The court ruled that since in the aggregate, unregulated wheat could have an effect on interstate commerce, it was thus covered by the commerce clause.
2. The Court has held that "Congress is empowered to regulate and protect the instrumentalities of interstate commerce, or persons or things in interstate commerce, even though the threat may come only from intrastate activities." In one instance, the Court upheld federal safety regulations of vehicles used in intrastate commerce on the grounds that they run on highways of interstate commerce.
3. In Gonzales v. Raich, the court ruled that the commerce clause extended to non-economic regulatory schemes of congress.

Amendment III - Unfunded Mandates and Conditions on Spending

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.

This first clause of this amendment would disallow Unfunded Mandates, meaning that the Congress could not make laws, even those within the scope of their power, that would require the states (or cities etc.) to spend money, unless Congress is willing to reimburse the States fully.

The court has ruled in Printz v. United States that the federal government cannot directly force a state to pass any law or regulation. However, by the precedent set in South Dakota v. Dole, Congress can make routine, unrelated funding conditional upon state compliance with regulation that Congress cannot itself enact. The National Minimum Drinking Age Act was the subject of Dole and presently uses this mechanism, as did the National Maximum Speed Law while it was law. The second clause of this amendment would prevent Congress from using conditional funding to induce the states to enact any law if it would "restrict the liberties of its citizens."

Amendment IV - No Abuse of the Treaty Power

No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.

The Constitution grants to the president the power "by and with the Advice and Consent of the Senate, to make Treaties, provided two thirds of the Senators present concur." The Constitution also grants to the Congress the power "To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof." Based on this clause, the Supreme Court held in Missouri v. Holland that Congress can make laws implementing a treaty, even if such laws would otherwise be outside of Congress' power to enact. Many thought this decision unwise, fearing that the Federal Government could essentially bypass any Constitutional limits by simply enacting treaties granting themselves any powers they saw fit. These concerns led to the Bricker Amendment of the 1950s, designed to restrict the treaty power. The Bricker Amendment came up a single vote short of the two thirds majority it needed.

This amendment would similarly overturn Missouri, preventing any treaty from enlarging Congress' power.

Amendment V - Freedom of Political Speech and Press

The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.

This amendment would expand the scope of the right to free speech to apply to Campaign Contributions, thereby making it illegal for charges or imprisonment in terms of campaign finance laws. This Amendment would make laws such as McCain-Feingold illegal. McCain-Feingold made it illegal for anybody not directly connected with a campaign to voice issues related to that campaign within 30 days of a primary election and 60 days within a general election. This amendment also extends freedom of speech rights to the internet.

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Amendment VI - Power of States to Check Federal Power

Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.

This amendment would provide for the states to have a collective veto power over congress without having to go through the courts. In this wording, identically would mean that a collection of 39 out of 50 states would disapprove of an act of congress. See also: Real ID Act of 2005.

Amendment VII - Term Limits for Congress

No person who has served as a Senator for more than nine years, or as a Representative for more than eleven years, shall be eligible for election or appointment to the Senate or the House of Representatives respectively, excluding any time served prior to the enactment of this Article.

This amendment would simply limit the terms of any Congressman or Senator. Under this Amendment, a Congressman's term would be limited to five two year terms plus one year of another person's term. Meanwhile, Senators would be limited to one six year term plus three years of another person's term.

This is based on the 25th Amendment of the US Constitution which limits the President to two 'four year' terms in office and two years of another person's term for a total of 10 years.

Amendment VIII - Balanced Budget Line Item Veto

Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.
Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.
Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.
Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.

This amendment requires a line-item veto to be established for the President. Section one of this amendment establishes a definition of an unbalanced budget stating that it is when public debt at the end of one fiscal year (September 30 of the calendar year) is greater than the preceding one. Section two allows the President to separately approve or disapprove of any part of any legislation except that which allows for the operation of congress or the judiciary. Section three simply sends the disapproved items to the US House for separate consideration. Section four forces congress to pass an line-item veto law after the amendment is ratified. This amendment is a direct result of an overturned law that former President Clinton enjoyed in his second term in office.

Amendment IX - The Rights Retained by the People

Section 1. All persons are equally free and independent, and have certain natural, inherent and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending and preserving of their life and liberty, acquiring, possessing and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.
Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.

This amendment is a direct cousin of the 10th Amendment though it applies to the people of this country and not the states. Section one puts the Declaration of Independence into coded law. This includes the premble which allows for people to live their lives the way they seem fit. Section two allows any legal person of the United States to rise up and challenge any law that restricts their rights and gives the burden of truth to the United States federal government or any state government. This means that any attempt to establish the consitutionality of any law is rested with the government.

Amendment X - Neither Foreign Law nor American Judges May Alter the Meaning of Constitution

The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.

See also

Federalism in the United States
Tea Party protests

External links

• Official website for the bill