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Randy Barnett's Proposed "Federalism Amendment"

Randy Barnett has an interesting article in the Wall Street Journal, "The Case for a Federalism Amendment," where he proposes "that states petition for a convention to propose an amendment repealing the 16th Amendment authorizing an income tax," or, "Alternatively, states could include the repeal of the 16th Amendment in a more comprehensive 'Federalism Amendment.'"

While federalism, more decentralization, and indeed anything that reduces the scope of federal power is good, there are a few troubling aspects to this proposal.

First, Barnett notes that repeal of the 16th amendment "would result in the Congress imposing a national uniform 'excise' or sales tax as authorized by Article I, Sec. 8." Any libertarian should favor repeal of the 16th amendment, but advocating "replacing" it with a national sales or excise take is not a good idea. First, any such abolition would be gradual (even Barnett's proposed amendment waits five years to repeal the income tax); so we'd just end up with both the income tax and the new tax. And even if the 16th amendment were repealed, there can be little doubt that the criminal gang know as our government would find a way to permit income taxation. Third, the problem is not the form of tax, but the extent--the solution is lower tax rates, not changing the type of tax. A real tax reform amendment would impose absolute, strict, and low caps (during debate on the 16th amendment, a 10% cap was considered, but rejected for fear Congress might actually tax at such a high rate, and "because people thought the idea that the tax might ever rise that high too absurd to address"!). (For more on this, see Lew Rockwell, The Myth of the Replacement Tax; Anthony Gregory, The National Sales Tax Disaster; Ron Paul, Tax Reform Is a Shell Game; Bruce Bartlett, Fair Tax, Flawed Tax; Harry Browne, National Sales Tax; Laurence Vance, The Tax That's Anything But Fair.)

Another problem with Barnett's "Federalism Amendment" is that it does not specifically provide for the right of secession; but this right is surely the crux of federalism. Without a right to exit, any "federalism" rights are hollow. Indeed, far from permitting secession, Barnett's proposal specifically says, in Section 2, that states may do what they want in their own borders, BUT "Congress may define and punish offenses constituting acts of war or violent insurrection against the United States." Can there be any doubt that this clause would be seized by the President to justify forcibly preventing secession? Indeed, pro-war, centralist DC libertarians often justify Emperor Lincoln's actions in The Recent Unpleasantness based on similar reasoning. (I note that in his comments explaining each of the five sections of his proposed amendment, Barnett doesn't mention or explain this provision, though he does address most of the others.)

Other proposals are unclear to me: Explaining Section 2 further, he writes:

Section 2 then allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state. States, of course, retain their police power to regulate or prohibit such activity subject to the constraints imposed on them, for example, by Article I or the 14th Amendment.

If I understand what is proposed here, this would eviscerate much of the Fourteenth Amendment (surprising, since Barnett is a proponent of the Fourteenth Amendment and its use by Congress and federal judges to strike down unlibertarian state laws). Consider a state law that discriminates against blacks. Isn't this activity wholly within the state?

This interpretation is buttressed by his Section 5, which provides:

The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty.

[Explanatory comment by Barnett:] Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power.

This implies the federal judges can review federal law only (which is as it should be)--but it's silent as to review of state law, and does not ban it; given that it's a current practice (and one Barnett approves of), the amendment ought to specifically state that federal judges may not review state law any more under the 14th.

I'd add that if we really want to make sure Congress stays within its limits, in addition to providing for a clear recognition of the right to secede, and limiting federal judicial authority--the states ought to be empowered to review and nullify federal law (for more on this see Jefferson's Kentucky Resolution and Madison's Virginia Resolution (links here); see also my post The Meaningless Constitution; and Kilpatrick's great The Sovereign States.


There's another curious aspect to his argument: He proposes:

Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.

[Barnett's explanatory comment:] Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such its promise to make Social Security payments.

What is he talking about? An obligation is a binding legal contractual obligation, or perhaps a moral obligation. There is neither in the case of things like Social Security payments. First, there's the issue of legislative (or parliamentary) sovereignty: a current Congress cannot tie the hands of future Congresses. The law may be changed at any time. So it's not a legal obligation. I am not even aware of Congress ever "promising" to (always?) make SS payments; in fact, as far as I know the right to receive such welfare payments is explicitly NOT a contractual or property right. It's entirely at the state's discretion. And what would a "promise" be anyway--an official act of legislation? Where is it? A binding promise, like a contract? But it's not, and can't be. Is it a moral obligation? Of course not, as the obligation would involve immoral things like the state continuing to exist and continuing to steal taxes from younger generations.

So there are no obligations or commitments. This as far as I read it would actually not empower Congress to keep making Social Security payments. Which, to my mind, is god; but this is not what Barnett means to do here: In reality, what would probably happen is that the Congress would just start describing anything it wants to spend money on as a "previous commitment" or "promise" that we "must" fulfill.

Update 2: In 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 survey a couple of other proposals for amending the Constitution. One my favorite is this one by Joe Sobran:

What we need is an amendment forbidding the circumvention of the Constitution. It could read: "The Constitution shall not be circumvented. " I just got a big laugh from any lawyers who may be reading this.


More seriously, a better way to increase federalism than Barnett's amendment would be the proposal of Marshall DeRosa, as set ot in book The Ninth Amendment and the Politics of Creative Jurisprudence (online copy; Google books version; Amazon; David Gordon's review). DeRosa proposes an ingenious constitutional amendment, which would read as follows:

When a national majority of each State's chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States' designated chief judicial officers 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 amendment.

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned "more expeditiously and competently" than at present. The states would not have to "resort[] to a cumbersome amendment process or the national congress that is significantly detached from states' interests." Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would "heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered."

As I noted in my article, this amendment would be prefereable to that suggested by Robert Bork, since Bork's amendment would have little positive effect on federalism. (In his book Slouching Towards Gomorrah: Modern Liberalism And American Decline, at p. 117, Bork proposed a constitutional amendment to make "any federal or state court decision subject to being overruled by a majority vote of each House of Congress.")

As for other potentially useful amendments, unfortunately, Sobran's proposed amendment, "The Constitution shall not be circumvented," would be easily circumvented, as Sobran recognized. However, Sobran proposes another "amendment that would actually restrain the federal government. It would read: 'Any state may, by an act of its legislature, secede from the United States.'" This is what is sorely lacking from Barnett's proposal.

Update 3: Other discussion of Barnett's proposal include Doug Mataconis, Is It Time For A Federalism Amendment?; Ilya Somin, Randy Barnett's "Federalism Amendment"; and Roderick Long, Amendment Unmended.


Stephan Kinsella

Stephan Kinsella is an attorney in Houston, director of the Center for the Study of Innovative Freedom, and editor of Libertarian Papers.

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