Help Draft the Federalism Restoration Amendment

The Volokh Conspiracy ^ | March 26, 2010 | Randy Barnett

[wizard61]

Nearly one year ago I proposed a Federalism Amendment in the Wall Street Journal followed four weeks later by a Bill of Federalism containing ten amendments, which appeared on Forbes.com. This has led me to hear from hundreds of citizens, and state legislators from around the country, about the pros and cons of constitutional amendments in general and my proposal in particular.

Given the enactment of the health insurance legislation this week, the time is now ripe for a stripped down amendment proposal that would address the issue of national control of health insurance, as well as the construction of Congressional commerce power by the courts that has greatly exceeded the original meaning of the Constitution. ...

[wizard61]

THE FEDERALISM RESTORATION AMENDMENT

The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme....

[LALALAW]

The talking point that should have been used universally by all conservativges / Republicans from the minute that an individual mandate was pushed should have been, “ it’s Uncostitutional.”. If you want universal health care, the only legal way to do it is through an amendment to the Constitution.

[highlander_UW]

There were a bunch of comments on the blog that addressed this point and I agree with them...this needs to be more general and not specific about health care. That's only the crisis dejour.

What needs to be addressed is a tightening of the commerce clause that is being construed to be so broad that it has on boundaries.

For example, how about specify that the commerce clause only relates to act ivies by state governments. That way states can't impose interstate tariffs. By limiting it to state government action it allows individuals the freedom to purchase or not purchase items freely regardless of what state is involved. I believe this was the original intent anyway, but from our current condition this expands personal liberty while retaining the original intent.

[precisionshootist]

I would suggest going a step further. The amendment should repeal the interstate commerce clause completely. With today’s economy and technology it is simply no longer necessary for the feds to regulate anything between states.

Also I would suggest not addressing health care directly as this leaves the door open for the feds to enter any other area of private citizens lives. My suggestion is an amendment that forbids any involvement or regulation of any entity that can exist in the private sector with the sole exception of the military. The test is simple, if it can simply exist in the private sector and it’s not the military then it’s off limits to the federal government. This would forbid, social security, Medicare and Medicaid, public school funding in any way. The list goes on and on.

Clearly the change over to such a status would have to be gradual but it must be done. We have got to get the federal government out of the private sector completely.

[Ken H]

How about:

"The power of Congress to regulate commerce among the several States shall be limited to negative and preventive measures against injustices among the States themselves, and not for any positive purpose of the Federal government." __________________________________

That would put it in line with the original understanding of the power to regulate commerce among the several states:

"...it grew out of the abuse of the power by the importing States in taxing the non-importing, and was intended as a negative and preventive provision against injustice among the States themselves, rather than as a power to be used for the positive purposes of the General Government, in which alone, however, the remedial power could be lodged."

James Madison, 13 Feb. 1829

http://press-pubs.uchicago.edu/founders/documents/a1_8_3_commerces19.html