User:TachyonJack/Bill of Federalism

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The Bill of Federalism is a list of 10 proposed amendments to the United States Constitution. Law professor Randy Barnett drafted the bill in response to the recent movement to limit federal powers. The present and final draft of the bill was published on May 13, 2009, and incorporated much of the feedback that Barnett received in response to the previous draft. The previous draft of the bill was an expansion of an earlier 'Federalist Amendment' that Barnett composed as part of an article he wrote in the Wall Street Journal.

He plans to have the States call for a Constitutional Convention where they would propose the amendments comprising the bill. Alternatively, the United States Congress could propose the amendments to the states, as they have done every time a Convention has been called for.

The amendments, summarized by number below, would:
 * 1) Disallow federal income taxes (i.e., repeal Sixteenth Amendment), as well as gift, estate, and consumption taxes; allow FairTax; require a 3/5 supermajority to raise or set new taxes
 * 2) Set limits on the Interstate Commerce Clause
 * 3) Disallow unfunded mandates, and conditions on funding.
 * 4) Close a constitutional loophole that allows treaties to override established limits on power
 * 5) Extend free speech consideration to campaign contributions, and to cover any medium of communication (including the Internet)
 * 6) Grant the States the power to rescind any federal law or regulation with a two-thirds vote.
 * 7) Establish Term Limits for Senators and Representatives.
 * 8) Provide the President with a line-item veto to balance the budget on any year in which it is unbalanced.
 * 9) Reinforce the Ninth Amendment by specifying additional rights and by providing a process for any person to prove the existence of an unenumerated right.
 * 10) Restrict judicial activism by mandating an originalist method of interpretation.

History
On April 16, 2009, Randy Barnett appeared on the Glenn Beck Show to address the question, "What redress do states have who are tired of getting kicked around by the federal government?" Barnett proposed the idea of passing a constitutional amendment, and further argued that by threatening to hold a constitutional convention, the states could force Congress to propose the amendment to them.

Barnett then wrote an article for the Wall Street Journal entitled "The Case for a Federalism Amendment." It was published in the editorial section on April 24, 2009. In it he expounded on his idea for forcing Congress to propose an amendment to the states, and included a draft for a five-sectioned 'Federalist Amendment', which would strengthen states' rights and restrict federal power.

According to an interview he gave to PJTV, Barnett utilized the great volume of constructive feedback to further refine his ideas for the amendment. He also decided to disaggregate the amendment into multiple parts, in order that opposition to a few of the ideas would not sink the entire amendment. He decided to add some popular proposed constitutional amendments, addressing such issues as the fairtax, the line item veto, balanced budgets, and judicial activism, in order to build a broad coalition of groups that may advance the amendments. He hopes to have the Tea Party movement rally around this bill. He claims to have deliberately avoided some amendments that might be seen as 'kooky', such as the repeal of the 17th Amendment, which effected the direct election of senators rather than their selection by the state legislatures, lest they cast doubt upon the whole project.

On May 13, 2009, Barnett released the intended final draft. Barnett removed amendment 3 which declared the existence of Police Powers of states. He condensed amendments 4 and 5 which disallowed income and estate taxes respectively, into one amendment now listed as number 1. This made room for two additional amendments not present in the earlier draft. One prevents treaties from enlarging Congress' power, in what might be thought of as a Constitutional loophole. Another applies the right to free speech to any medium, including the internet, and also makes campaign contribution a form of protected free speech.

Background
The Constitution is the Supreme Law of the United States. Article V of the constitution provides two ways for amendments to be proposed and two ways for them to be ratified. Congress may propose Amendments to the States, or the States may petition Congress to declare a constitutional convention to propose amendments. While there have been resolutions in favor of Constitutional Conventions, Congress has always preempted them by proposing the amendments themselves. Once proposed, an amendment can be ratified by a three-fourths vote of either the State Legislatures, or by State Convention. The amendment can specify how it is to be ratified: only the Twenty-First Amendment was ratified by State Conventions.

Resolution
Barnett would like the States to call for a Constitutional Convention. This was in fact his main proposition when he appeared on the Glenn Beck show, with the actual amendments being drafted later. He has drafted a resolution to call for a convention. He believes that this is a necessary step, as Congress would not voluntarily propose amendments which largely weaken its power.

Professor Gerard N. Magliocca has written an article supporting the idea of calling for a Convention.

Criticism
The John Birch Society has criticized the idea of calling for a constitutional convention, calling it a "dangerous temptation" and a "threat to our Constitution." Barnett has countered that historically, whenever the states have called for a Constitutional Convention, Congress has responded by proposing the amendments themselves. He also notes that even in the case of a constitutional convention, the proposed amendments still need to be ratified by three-quarters of the states.

Amendment I - Restrictions on Tax Powers of Congress
Section 1 of this amendment would disallow federal income, gift, estate, and consumption taxes. It would explicitly permit a national sales tax, an idea which has been proposed in the United States as the FairTax. Section 2 would require a supermajority of three-fifths of both houses of Congress for any new tax or tax increase. Section 3 repeals the Sixteenth Amendment, and delays the implementation of the whole amendment for five years after it is ratified, to give Congress time to dismantle the IRS.

This amendment is partially a combination of the fifth and sixth amendments of the previous draft.

Amendment II - Limits of Commerce Power
This amendment would overrule the current interpretation of the commerce clause based on supreme court precedent by removing three justifications for the application of the interstate commerce clause: the regulation of an activity having effects outside of a state, the regulation of instrumentalities of interstate commerce, and regulation as part of a broader regulatory scheme.

Commerce clause
The constitution grants congress the power to "regulate commerce among the several states, or with foreign nations'. It also gives the power to 'make all laws neccesary and proper to carry out those powers..."

effects outside state
In Wickard v Fillburn, the supreme court ruled that congress could regulate the production of wheat by a famer named fillburn, despite the fact that fillburn did not intend to sell any of this wheat across state lines. The court ruled that since in the agreggate, local wheat farmers could have an effect outside the state, it was covered by the commerce clause.

"[E]ven if appellee's activity be local and though it may not be regarded as commerce, it may still, whatever its nature, be reached by Congress if it exerts a substantial economic effect on interstate commerce, and this irrespective of whether such effect is what might at some earlier time have been defined as `direct' or `indirect.' "

instrumentalities
In other cases such as the ShrevePort rate cases the court has found that the commerce clause extends to regulation of instrumentalities of interstate commerce, such as trucks.

regulatory schemes
In Gonzales v. Raich, the court ruled that the commerce clause extended to non-economic regulatory schemes of congress. &lt;cite http://papers.ssrn.com/sol3/papers.cfm?abstract_id=916965>

Amendment III - Unfunded Mandates and Conditions on Spending
This amendment would disallow Unfunded Mandates, meaning that the Congress could not make laws, even those within the scope of their power, that would require the states (or cities etc.) to spend money, unless Congress is willing to reimburse the States fully. It also closes what might be thought of as a constitutional loophole, whereby Congress could make routine funding subject to a States' compliance with some regulation which is outside of Congress' power to enforce directly. The National Maximum Speed Law, which set speed limits nationwide at 55MPH, used this mechanism. This amendment was listed virtually unchanged as the second amendment in the previous draft.

Amendment IV - No Abuse of the Treaty Power
This amendment would close what may be thought of as a Constitutional loophole, which could otherwise allow the Congress to overstep the limits to its power that the Constitution has put in place. This amendment was not in any previous drafts.