Randy Barnett's "Federalism Amendment"--A Counterproposal
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.
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 The 16th article of amendment to the Constitution of the United States is hereby immediately repealed, and any person convicted of the crime of federal tax evasion, whether currently in prison or not, whether currently living or not, whether also convicted of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.
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.
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.
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.
Update: I was reminded by a friend of Roderick Long's well thought out "Virtual-Canton Constitution," which is of relevance to the issue of designing constitutions.