Constitutional amendments - take your pick

Shall federalism be killed and buried or shall it be restored?

There has been a lot of buzz across the 'sphere about amending the US Constitution, including a post by Randy Barnett on The Volokh Conspiracy, whose founder Eugene Volokh is a respected professor of Constitutional law at UCLA. It's called, "Help Draft the Federalism Restoration Amendment."

Federalism is, of course, the Constitutional principle that sovereign authority of the country is divided between the federal government and the states. It is encapsulated by the 10th Amendment, one of the amendments of the Bill of Rights, which states, "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."

That is a major reason that the federal government is said to possess only "delegated powers," since the Founders' conception was that sovereignty and rights originally reside in the people, not the state apparatus. They had claimed in the Declaration of Independence, "That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed."

The powers of the Congress are enumerated in Article I, Section 8 of the Constitution. These are the powers delegated by the people. These days, however, the Congress has decided that there is no limit to its powers, whether specifically delegated or not. Congress's majority party believes that the preamble (the preamble!) to the Constitution confers upon them virtually unlimited powers. This development makes the people subjects, not citizens.

Hence the calls in some quarters for amending the Constitution to restore the founding principle of federalism in the national polity. Well, I can make a list of amendments as well as anybody, so here are mine.

There are two sets of amendments. First is for those who think that federalism is rightfully dead and should be buried. It concretizes the consolidation of power in Washington. The second set reverses the trend.

Set One - Amendments to Enhance the Power of the Federal Government at the Expense of the People and the States

Amendment 28 - The Power of Congress Unlimited

The Tenth Amendment to this Constitution is repealed.

The Congress shall have the power to enact laws as it shall determine necessary. The powers enumerated in Article I, Section 8 of this Constitution shall not be construed or interpreted by any federal court as limiting the authority of the Congress.

Amendment 29 - Sovereignty of the Federal Government Confirmed

The words, "and those in which a State shall be Party," of Article III, Section 2 of this Constitution, are deleted.

The sovereign authority of the United States originates in the national government of the United States. Rights of the people and of the states are, without regard to articles of this Constitution or other amendments thereto, subject to definition and regulation by the Congress.

No challenge to or suit contesting, as to compliance with this Constitution, an enactment by the Congress or executive order of the president may be heard in any federal court after the enactment has become law or the order is issued.

Set Two - The Preservation of the Rights and Powers of the People and of the States


Amendment 28 - The 17th Amendment Repealed

The 17th Amendment to this Constitution is repealed. Article I, Section 3 of this Constitution is restored to the original text as ratified by original states of the United States.

This amendment would repeal direct election of US senators and return them to being chosen by the legislatures of the states. My explanatory notes on this are here.

Amendment 29 - Direct Federal Taxation of Incomes Prohibited

The 16th Amendment to this Constitution is repealed.

The powers of the Congress shall not extend to levying taxes of any kind directly upon incomes of individual persons.

After being ratified, this article shall become effective on the first day of January of the first even-numbered year following the general election of the members of the United States House of Representatives.

Congress shall have the power to enforce this article by appropriate legislation.

My explanatory notes on this are here. My attempt in the rather inartfully-worded phrasing of the second paragraph is the ensure the amendment becomes effective one year after the seating of a new Congress, meaning that the same Congress that enacts legislation to fund the government by means other than income tax will have ample time to figure out how - and will have to face the voters 11 months after the amendment takes effect.

Amendment 30 - Regulatory Powers of the Congress Defined

The powers of the Congress to regulate commerce among the several states shall not extend to making any law that requires any commerce to take place. No commerce taking place wholly within a state may be regulated by the Congress.

If the Congress can require Americans to buy health insurance, there is no principle that inhibits the government from requiring us to buy anything it wants us to buy. As US Rep. Michael Burgess (R-Texas) points out, there is no reason now that the government could not compel auto buyers to purchase a General Motors product rather than another brand's.

Think this is far-fetched? The federal government already tax penalizes auto makers or importers who sell certain vehicles getting lower than 22.5 mpg on the EPA's combined table. It's called the gas-guzzler tax. Of course, the tax is simply considered as a cost by the companies and, like all costs, it is passed along to the consumers. But even before the passage of the health-care law, there was no reason the Congress could not also mandate that buyers of such vehicles pay the tax at the point of sale.

If the government can require us to buy health insurance or pay extra tax to the IRS, then there is no reason we can't be mandated the same choice when buying a car. Buy GM or not, but if not, pay extra to the IRS next April.

Amendment 31 - Right to Keep and Bear Arms Clarified

The right of the people to keep and bear arms is a right of individual persons of the United States without relationship to the purpose of Militias of the states or to the armed forces of the United States.

Congress shall have the power to enforce this article by appropriate legislation.

Amendment 31 - Executive Orders Limited

Orders by the president, except those directly regulating the operation of the executive branch of the government, shall expire two years after they are issued unless sooner enacted into law by the Congress; however, such enactment shall not be made less than one year after the order is issued.

Amendment 32 - Judicial Review of the Courts Not Absolute

In the event that a law of the United States is, in whole or in part, held by a court of the federal judiciary to be not in compliance with this Constitution, the Congress shall have the power to overrule the judiciary by concurrence of two-thirds of the members of each chamber; however, no such action by the Congress shall take place until an election of Representatives shall have intervened, nor shall the concurrence of the president be required.

Amendment 33 - Citizenship by Right of Birth Clarified

1. A person shall be a citizen of the United States by right of birth provided that the person is:

a. born in the United States to parents of whom at least one is, at the time of the birth, both a citizen of the United States and a de jure parent of the newborn, or,

b. born in the United States to parents who, though not citizens of the United States, are legally in the United States at the time of the birth, and who are de jure parents of the newborn, or,

c. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth occurs outside the United States because of United States diplomatic mission or military orders of a parent, or,

d. born outside the United States to a de jure parent who is citizen of the United States at the time of the birth, provided that the birth and identifying information of the newborn are registered within six months from the date of the birth with a United States diplomatic mission to the jurisdiction wherein the birth occurred.

2. Persons born in the United States and who do not meet a criterion citizenship by right of birth shall not be deprived of due process of law; nor shall any such persons within the jurisdiction of the United States be denied the equal protection of the laws by the United States nor by any State.

3. Congress shall have the power to enforce this article by appropriate legislation.

Amendment 34 - Supremacy of the Constitution as the Law of the Land

This Constitution is the supreme law of the United States and shall not be subordinated to international treaties, agreements or concordances. The rights of the people of the United States shall not be diminished or denied by terms of treaties or any other agreement with a foreign government or organization.

Congress shall have the power to enforce this article by appropriate legislation.

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