Is It Time For A Federalism Amendment ?
Law Professor Randy Barnett thinks so:
In response to an unprecedented expansion of federal power, citizens have held hundreds of “tea party” rallies around the country, and various states are considering “sovereignty resolutions” invoking the Constitution’s Ninth and Tenth Amendments. For example, Michigan’s proposal urges “the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States.”
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Article V provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.
An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
In essence, Barnett argues that states can use the threat of a Constitutional Convention to force Congress to propose an Amendment to the states for ratification. This method worked to some effect in the early part of the 20th Century when Congress finally acted on what became the 17th Amendment after thirty-one states had passed resolutions calling for a Constitutional Convention to consider such an Amendment. Barnett contends that it could work again.
While the specific text of Barnett’s proposed Amendments, which you can find in the article linked above, is interesting and worthy of further discussion, I think there are several problems with his proposal.
First, his suggestion that the states play a game of Constitutional “chicken” with Congress by issuing a call for a Constitutional Convention raises all of the objections to that route that Brad and I noted nearly three years ago. Namely, this:
America was fortunate in 1787 in that we had men like Madison, and Hamilton, and Washington, and Franklin who produced a document that, to this day stands as the blueprint for the best system of government yet devised. I shudder to think what would happen if a Convention were called and populated by the likes of Schumer, Pelosi, Frist, Reid, Specter, and Kennedy.
And that’s precisely what could happen under Barnett’s proposal. What if, instead of caving in to the states on a Federalism Amendment, Congress decides to call their bluff and let a Convention go forward ? Does anyone really think that the end result of such a convention would come even close to what Barnett is suggesting ? I don’t, and I don’t want to take that risk.
The other problem with Barnett’s proposal is pointed out by his Volokh Conspiracy co-blogger Ilya Somin:
I am far less optimistic than he is about the likelihood that state governments will support such a massive reduction in federal power. Randy writes that “States have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” In reality, however, many state governments have a great deal to lose because they receive massive quantities of federal subsidies (equivalent to some 20-30% of their total budgets; see Table B-86 here) that would mostly be cut off by Section 3 of Randy’s proposed amendment. The states got some $450 billion in federal funding in 2008, and are likely to get even more this year. Right now, most states are very happy to take federal stimulus money, and many would like to get even more. State governments also often support federal regulation of private activity. John McGinnis and I discuss the reasons why state governments often favor broad federal authority in greater detail in this article. If the states really did have “nothing to lose” from imposing tight constraints on federal power, they probably would not have allowed the latter to grow to its current bloated size in the first place.
You need to look no further for evidence in support of Somin’s argument than the news coverage of Governors, Mayors, and other local officials who paraded to Washington in the weeks after Obama’s Inauguration to ensure that they got their piece of the stimulus pie. For the most part, these local and state leaders want federal money because, without it, their citizens would have to bear to full cost of all those state programs they’ve implemented — and that would lead to fiscal, and political, disaster for the powers that be.
As Somin notes, Barnett may have a point that a Federalism Amendment may have the salutary effect of giving the tea party movement something to rally around that is more productive than just “hate Obama” and “vote for Republicans,” but as a practical suggestion it seems to be sorely lacking.