Posted on 04/26/2009 5:30:30 PM PDT by Born Conservative
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.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.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.
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.
“Be assured that if this new provision [the 14th Amendment] be engrafted in the Constitution, it will, in time, change the entire structure and texture of our government, and sweep away all the guarantees of safety devised and provided by our patriotic Sires of the Revolution.”
~Orville Browning, Senator for Illinois (1867)
“Section 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Would Madison approve?
“The powers delegated by the proposed Constitution to the federal government are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation and foreign commerce. ... The powers reserved to the several States will extend to all the objects which in the ordinary course of affairs, concern the lives and liberties, and properties of the people, and the internal order, improvement and prosperity of the State.” —James Madison, author of the Constitution, in Federalist Paper No. 45.
Section 1: Secession. Any State or Indian tribe may, by an act of its legislature, secede from the United States.
1. Except for the original thirteen, Texas and Hawaii, I am not aware of any state that was not a creation of the United States using land provided for that purpose, which land was taken from its previous possessors with United States blood and/or money. If the current residents want to leave fine, but the land remains a United States possession. Whatever it is can revert back to being a territory of the United States and eventually new states can be formed.
2. Indian tribes have legislatures?
When a national majority the States of the United States (whatever that is) 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
That implies pure democracy, not at the citizen level but at the State level. Why not just have a pure democracy of the citizens at all levels?
That implies that if the Supreme Court did something outrageous, like declaring the Second Amendment protects an individual right, a simple majority of the States could over rule them and say that it’s a collective right.
How would that work? By vote of the citizens within a State (back to pure democracy) or by vote of the legislature or executive decision of the governor? If the latter two, why think the State governments have any more sense or good intentions than the Federal government?
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.
Aside from Post Roads and Military highways, why should the United States (I assume he means government) be involved at all?
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.
So I can steal government “property” and payoff a state governor to get out of a federal conviction.
It's a set of paper limits enforced and interpreted by the very state that it seeks to limit
Things won’t work out any better under the proposal and I think they’d be worse. The proposal assumes the States and the people would do a better job under a new arrangement than they are doing under the present arrangement. That assumption doesn’t seem to be well founded.
On the other hand:
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.
Agreed and I’m surprised to see that much understanding. The real quarrel is not with the Federal Government which is only an agent of the States; it’s with the other States who have allowed the Federal Government to become what it has become.
Repeal of the Seventeenth Amendment, doing something about the tax situation and some other things aren’t bad, but the need for immediate gratification is---shortsighted.
Still doesn’t explain anything.
A quick question: do you approve of California and New York’s gun control laws?
No! But that is the States of California/New York's issue.They can vote with their feet
Did you support the Federal Clinton Gun Ban? Federal Gun laws in General? Abortion? Taxes?
“In this country, the law in effect in all but a few States until mid-l9th century was the pre-existing English common law... It was not until after the War Between the States that legislation began generally to replace the common law.” ~Roe v. Wade, 410 US 113
Consent to this condition?
“In the first place, we ask that they will agree to certain changes in the Constitution of the United States; and, to begin with, we want them to unite with us in broadening the citizenship of the Republic. The slaves recently emancipated by proclamation, and subsequently by Constitutional Amendment, have no civil status. They should be made citizens. We do not, by making them citizens, make them voters,—we do not, in this Constitutional Amendment, attempt to force them upon Southern white men as equals at the ballot-box; but we do intend that they shall be admitted to citizenship, that they shall have the protection of the laws, that they shall not, any more than the rebels shall, be deprived of life, of liberty, of property, without due process of law, and that “they shall not be denied the equal protection of the law.” And in making this extension of citizenship, we are not confining the breadth and scope of our efforts to the negro. It is for the white man as well. We intend to make citizenship National. Heretofore, a man has been a citizen of the United States because he was a citizen of some-one of the States: now, we propose to reverse that, and make him a citizen of any State where he chooses to reside, by defining in advance his National citizenship—and our Amendment declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” This Amendment will prove a great beneficence to this generation, and to all who shall succeed us in the rights of American citizenship; and we ask the people of the revolted States to consent to this condition as an antecedent step to their re-admission to Congress with Senators and Representatives.”
~ The Reconstruction Problem, speech by Rep. James Blaine (R-Maine), Skowhegan, Maine (August 29, 1866)
ROTFLMAO!!!!! That's like saying that the 12th Amendment violates Article II, Section I, Clause 3. Or that the 16th Amendment violates Article I, Section 9, Clause 4. Or that the Article II, Section 3 is violated by the 17th Amendment.
...Madison would vomit
Madison would be shaking his head at what passes for logic in the Southron world.
“We intend to make citizenship National. Heretofore, a man has been a citizen of the United States because he was a citizen of some-one of the States: now, we propose to reverse that, and make him a citizen of any State where he chooses to reside, by defining in advance his National citizenship—and our Amendment declares that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”
Go back into your closet....We all know how you feel about Gay Marriage? Or should...Never mind
And miss all the stupid stuff you post?
We all know how you feel about Gay Marriage? Or should...Never mind
You don't know jack about what I think or about much of anything else. As you continue to show with every post.
What are you? The CENSORSHIP man?
Should I call the others over to this thread? Or shall we return to our un-civil war debate?or lack of
We are not going further without bringing that war/murder up! Them Guy's rustbucket/cowboy really make your temper pop
Why not? But first please post links to the comments I made that make you think you know my opinions on gay marriage. I'm sure they would be fascinated to see them, and you could show that you just didn't pull that 'gay marriage' comment out of your butt.
We are not going further without bringing that war/murder up!
Knock yourself out?
Them Guy's rustbucket/cowboy really make your temper pop
Considering how often Rustbucket is reduced to gibberish then I'd say it's their blood pressure that's being raised and not mine.
Man—Your attacks on those who may disagree because of belief in God is?Well..Like you
To: Rustabout
Your trying to compare apples and oranges...Do we need to have a birds and bees talk?
I'm not sure such a talk about that from you would be of much benefit. But why is it apples and oranges? Both would penalize people for being who they are. Both would outlaw actions on their part which are perfectly legal for others. Both would be in reaction for some sort of perceived unnatural act as judged by the population. Where is the difference?
If ‘Gay’ people wish to kiss and ‘love’ on each other then let them do it in the privacy of walls..Or in San Francisco NOT in the Bible Belt...
Yes, can't have those gays polluting your Bible Belt, can we? So when you all rebel and secede and form your own nation, what will you do with them? Let's say you're president of an independent Tennessee. What will you do with/to homosexuals?
Are you not trying only to get us to enjoy the taste of thee Federal boot~ while you drag us into further Socialism ...You want to spit on us in the process...Is that it?
You talk about the federal boot, and the first thing you want to do is put your own boot on the neck of someone you don't approve of. Hypocrisy thy name is Rustabout.
I believe in something HIGHER than YOUR Supreme Court..May He have mercy on your soul!!!!
I'll take my chances with Him. I'd fear for my freedom under you. And I'm not even homosexual.
287 posted on Tuesday, April 21, 2009 4:03:41 PM by Non-Sequitur
So there's something particularly onerous about having the Bill of Rights apply to the states?
Did you support the Federal Clinton Gun Ban? Federal Gun laws in General? Abortion? Taxes?
I'm not sure if I've ever said anything to that effect. Clearly unconstitutional as is; but hey, that's not what we're talking about is it?
I’m not exactly seeing your point here. Mind elaborating on what is so bad about this particular quote?
We are in difficult times! I wish Blue States would just vote for succession and leave and save us all! Last trip to a Gun Store they had a copy of California's Gun Laws=Holly cow
That's a very good question
This Federal Government recognizes States Rights’ in Regard to Gun laws only if—The State is more debilitating
I wish the Bill of Rights would apply to the Federal Government as well
Myself living in a Red State find the intrusive laws to be of a Federal variety
More later
B-B-Q time
But for the record, would you agree with Rustabout that only heterosexuals will be allowed in your new confederacy?
My belief in God is above all...I'm on the planet to serve HIM
Call me ‘old fashioned’ but I & many still think sex is what married folk's do....Do your not understand that problem with births to unwed mothers? We must have different understandings or upbringings!Would your want a Child molester living on your street? They claim to be born that way! I know, I’ve said some things unkind to you and i have asked for forgiveness,will you forgive me?
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