by Michael Boldin

Famed legal theorist Randy Barnett has quite an interesting article up in the Wall Street Journal entitled, “The Case for a Federalism Amendment.” In it, he proposes a Constitutional Amendment as a way to stop the federal government from exercising powers beyond that which it is authorized to do by the Constitution.

He begins by writing:

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.

While calls for federalism and anything else that could reduce the size and scope of federal power are good, his proposed way to achieve this has a greater chance of destroying federalism even further, rather than doing anything to achieve it.

First of all, Barnett’s proposed amendment:

Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.

Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.

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.

Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.

Section 5: 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. 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.

Most troubling in this proposed amendment is Section 5 – which is where this amendment turns towards a destruction of federalism, rather than a guarantor of it, by giving the federal courts even greater power to intervene in the affairs of the states.

Here’s how Kurt T. Lash, James P Bradley Chair of Constitutional Law at Loyola Law School and author of The Lost History of the Ninth Amendment, puts it:

“I agree with Professor Barnett that much of his proposed Amendment reflects principles of federalism which the Founders believed they had engrafted into the text of the Constitution.  However, I think that Section 5 of the proposed Amendment threatens to transform this “federalism” amendment into a provision which would result in the destruction of federalism.

Section 5 appears to grant courts constitutional authority to invalidate any state matter which a court perceives to be a liberty interest.

Indeed, since the amendment is to be interpreted according to today’s public meaning, Section 5 opens the door to judicial invalidation of any number of state regulations which traditionally have been left to the states, but which an individual judge or justice believes “today” should be considered a matter of individual liberty.”

Legislating from the bench on steroids, anyone?  Thanks, but no thanks.

Noted Constitutional scholar, and best-selling author of “The Politically-Incorrect Guide to the Constitution” Kevin R.C. Gutzman weighs in on Section 5 as well:

“In explaining his proposal, [Barnett] calls this section “entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.”

This is a blatant falsehood.

James Madison proposed an amendment in the First Congress to empower the federal courts to enforce certain (not, as in Barnett’s case, all) individual liberties against the states.

His amendment not only was never ratified, but it was not even sent to the states by Congress.

Barnett has long been on record as an advocate of the Incorporation Doctrine, the Supreme Court’s historically unfounded justification for enforcing certain of its favorite rights against state governments despite the absence of any constitutional ground for doing so.

With the language cited above, Barnett proposes to legitimate this practice.

Like James Madison, then, Barnett is attempting to use the language of federalism to grant the Federal Government new power.

While the idea of following up the tea parties and the Tenth Amendment resolutions with a constitutional amendment has merit, then, Barnett’s specific proposal can in this area only make things worse.”

Worse, indeed.

If the problem here is too much power, how can giving even broader power be the solution?

Some do agree, though, that a constitutional amendment is the way to go.  So why not focus on amendment(s) that would actually limit the size and scope of federal power?

For example, in a post at Electric City Weblog, Professor Robert Natelson, an expert on the framing and adoption of the United States Constitution, recommends the following:

We need to discuss the content of such amendments, but to start the discussion, I’ve suggested amendments to require a balanced federal budget and to impose term limits on Congress – ideas that people are very familiar with, generally like, and that state lawmakers are have shown themselves willing to vote for…

Requiring a balanced budget and kicking people out of office after a specified number of terms do not together make a silver bullet, but they are, undoubtedly, direct limits on the power of the federal government.

As far as amendments go, that makes sense.

But what else can be done to, as Thomas Jefferson put it, bind the government down by the chains of the Constitution?

One word:  Nullification.

Null-i-fi-what?

While not common parlance, the doctrine of nullification has a long history in the American tradition.  It’s the legal theory that a State has the right to nullify, or invalidate, any federal law which that state has deemed unconstitutional.

This theory has been around since the earliest days of the Republic.  For example, in response to the Alien and Sedition Acts, an anonymous Thomas Jefferson penned what became known as the Kentucky Resolutions of 1798.  These resolutions not only spelled out just what was wrong with the acts, but what the states’ proper and rightful response should be: nullification.  James Madison penned a very similar resolution that was approved by the Virginia Legislature that same year.

Here are some of the Jefferson’s most powerful words:

Resolved, that the several States composing the United States of America, are not united on the principles of unlimited submission to their General Government; but that by compact under the style and title of a Constitution for the United States and of amendments thereto, they constituted a General Government for special purposes, delegated to that Government certain definite powers, reserving each State to itself, the residuary mass of right to their own self Government; and that whensoever the General Government assumes undelegated powers, its acts are unauthoritative, void, and of no force…

1798 is far from the only time nullification has been invoked in American history.  For example, South Carolina’s bold nullification of tariffs in 1832, against nearly the entire American establishment, is usually called a failure. But it accomplished its main purpose: to bring down the rate of taxation.

Ok, you might be thinking, that sure sounds great and all, but wasn’t this whole nullification and resisting thing decided by the civil war?

Fast forward to 2007, and you’ll see an effective, practical example of just how well nullification works.

That year, the Maine Legislature overwhelmingly passed a non-binding resolution that refused implementation of the Real ID Act, and demanded that Congress repeal the law.  Shortly after, Utah did so as well, and soon, other states began to follow suit.

What happened?  The feds backed down.

The original deadline for implementation was delayed from May, 2008 to December, 2009.  As more states got on board and resisted through non-binding resolutions, the feds backed down again by extending the deadline to 2011.

What does this tell us?  Nullification works.  While the final nail hasn’t been put in the Real ID coffin yet, we have a great example of getting the federal government to back down through refusals to comply.

Regarding nullification, historian Thomas E. Woods may have said it best:

“The main point that nullification aims to address is that a government allowed to determine the scope of its own powers cannot remain limited for long. This is a lesson we should have learned by now. Moreover, since piecemeal solutions to reducing federal power have accomplished nothing, we can hardly afford to dismiss out of hand the idea of nullification, a remedy that is at once creative and intelligent, and recommended by some of the greatest political thinkers in American history.”

That, and not amendments expanding judicial power, should be our road-map for the future.

State resistance to REAL ID is growing. The Associated Press reports from New Hampshire:

The New Hampshire Legislature took a baby step Tuesday toward rejecting what they say amounts to the creation of a national ID card.

The House Transportation Committee voted unanimously to recommend barring the state from complying with the federal REAL ID Act, which sets standards for driver’s licenses. The full House next considers the bill.

REAL ID, Passed in 2005 and due to take effect in 2008-9, turns your driver’s license into a de-facto national ID card. This is yet another step towards a totalitarian police state in America.

The Act mandates that all driver’s licenses carry the same information, no matter what state issues them. The states must also “provide electronic access to all other States to information contained in the motor vehicle database of the State.” In other words, your information will be in a national database that puts everything at the Feds’ fingertips.

Additionally, the Department of Homeland Security is given the power to require “biometric” information on these licenses/ID’s in the future. This means that what appears to be a harmless-looking driver’s license could eventually contain a retina scan, fingerprints, DNA information, or radio frequency technology. We don’t know just what right now because REAL ID keeps this power open-ended. DHS will tell us…someday.

All this is supposed to help us fight terrorism, somehow, because the nineteen 9-11 hijackers had driver’s licenses. In order to be “safe” you’ll soon be required to have the proper “papers.”

Any refusal to comply by the States will mean that their residents will lose the ability to get on a plane, receive social security, and potentially, to get a bank account or a job. So, the feds are doing little more than blackmailing them into compliance and submission.

Wait a minute! That doesn’t sound legal, does it? First, a little constitutional background.

The US Constitution was written under what’s referred to as “positive grant.” This means that the Federal Government can only exercise powers that are specifically given to it by the Constitution – nothing more. This is where the Tenth Amendment comes into play – reaffirming positive grant:

“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”

Pretty simple, right? Right. If a power isn’t delegated to the U.S. government by the Constitution, then that power belongs to the States or the People. It seems that the only people who could possibly confuse this one sentence are politicians, lawyers, and federal judges.

It’s worth repeating. If a power isn’t specifically listed in the Constitution, the feds can’t do it. Period.

As New Hampshire representative Sherman Packard (R-Londonderry) said:

“We have to uphold the constitution,” he said. “We will not be blackmailed by the federal government.”

Sherman, you’ve hit the nail on the head! Obviously he’s read the Constitution. There’s not a single thing mentioned about ID’s, or licenses, or driving, or funding the states, or anything of the like. What does that mean? You’ve got it – it’s unconstitutional (against the law!) for the federal government to get involved in these things.

But, you might say, the Constitution is outdated! There were no driver’s licenses when the constitution was written – there were no cars! Right. There were no such things. But that doesn’t mean the law is “outdated” or bad.

In fact, the idea of strictly limiting the federal government is as good of an idea today as it was two centuries ago. Why? All you need to do is pay attention to what’s going on in our country right now. If you don’t keep the government in check, as many of the founders warned, governments will always grow and grow into a despotic beast.

Today, the government is larger than ever. Has that correlated with a better adherence to the law? Not at all.

Size of government notwithstanding, REAL ID is still unconstitutional. It doesn’t matter if the politicians think that it’s absolutely necessary. It doesn’t matter if they think the Constitution is outdated. None of it matters. The Law is the Law. The only legal way to approach this is through a Constitutional Amendment, and not by ignoring or violating the Constitution.

If the politicians were so confident that this program was necessary, and that We the People would approve of it, they would have presented it as a constitutional amendment. Instead, debate was light, and the bill was added to another, which passed 100-0 in the Senate.

It seems that abiding by the Constitution is pretty rare. Instead, addendums, riders, and backroom deals are the way of politics in Washington.

Think about that. Do you want to live in a society where the government has to follow the rules, or do you want to live in a society where politicians follow only the laws that they like?

Federal standards for identification are not authorized by the Constitution. It doesn’t matter whether they’re enforced through “laws” or economic “incentives” to the States. The politicians, by trying to force this on us without amending the Constitution to allow it, are showing utter contempt for states’ rights and the principles of the Tenth Amendment.

Bottom line: REAL ID violates the Constitution.

Legislators in New Hampshire (and elsewhere) should be applauded for their courageous opposition to this unconstitutional nightmare.

Long live the resistance!

The Associated Press Reports:

The Senate is moving toward its first vote in more than a decade on the line-item veto, and it’s remarkable how much has changed – particularly the positions of many of the major players.

At issue is a watered-down GOP measure that would allow a president to scrutinize spending bills he signs into law for questionable items and then submit cuts, or rescissions, to Congress for a vote.

Remember, the reason there hasn’t been a vote on this in “more than a decade” is because the Supreme Court struck down the previous line-item veto from Congress as unconstitutional. In a rare decision that opposed Congress and the expansion of government power, the Court rules that the Constitution did not give Congress the power to hand such authority to the President.

Since only Constitutional Amendments, and not time, can change the enumerated powers of the Constitution…this remains true today.

As Justice John Paul Stevens said in 1996:

“the procedures authorized by the line-item veto act are not authorized by the Constitution.”

And, as we state repeatedly here, the “powers not delegated….are reserved to the States, respectively, or to the People.”

The only way that Congress can give that power to the President is through the passing of a Constitutional Amendment. In his 1996 majority opinion, Stevens concurred:

“If there is to be a new procedure in which the president will play a different role in determining the text of what may become a law, such change must come not by legislation but through the amendment procedures set forth in Article V of the Constitution.”

Proponents of the constitutional change say that this will give the president a “valuable tool” for eliminating waste in the federal budget. But, there’s already a clear and simple veto procedure in the Constitution.

The problem we face isn’t the lack of power for the president to veto line-by-line.

The problem we face is that we have a Congress that passes 100+ page legislation without ever reading it. The problem we face is that our Presidents refuse to veto bills that have “riders” or “lines” in them that are bad for the nation. The problem we face is that we have a government that repeatedly legislates away our rights.

Giving even more power to an already overly-powerful executive branch will do nothing to secure our liberty.

Taking away a great deal of that power will.