Tea Parties and Federalism Amendments

The assault on American traditions and freedoms led by the current congress and the Agitator-in-Chief has not gone unnoticed. boston_tea_party_1_mdThe Tea Party movement is one such reaction. A popular movement to study and understand the original meaning of the Constitution is another (also see here). And finally, means to strengthen the original meaning of the Constitution, enforcing the original meaning with structural changes in the government, are being widely considered.

Last week Randy Barnett, Carmack Waterhouse Professor of Legal Theory at Georgetown University, inspired by the originalist vision of the Tea Parties, wrote an op ed in the Wall Street Journal that argued for the enactment of a federalism amendment limiting the powers of the federal government. Ilya Somin at Volokh and others have been sending their learned feedback to Barnett, who revised his proposal from the single amendment with five sections in his WSJ op ed to Ten Federalism Amendments.

The Ten Amendments of The Bill of Federalism

PJTV has a thorough discussion by Barnett and Tea Party organizers on the merits of the proposed amendment that is worth listening to if you have an hour to invest. If you don’t have the time, I’ll summarize what I think are the most important points from the discussion.

  • First, some may ask why ten? Barnett got so many comments and suggestions, from other constitutional lawyers and other smart people, that he had to re-conceptualize and rewrite his proposal. The initial amendment was broken into ten pieces for two reasons.
    1. If there are weaknesses in individual sections of a single amendment it scuttles the whole amendment. If there are ten amendments and one turns out too contentious then it can be thrown out and the rest kept.
    2. Some of the initial language was legally insufficient to achieve its goals. So it had to be reworded. Some of this rewording pointed out additional amendments that were necessary.
  • Second, many will say that passing amendments is a political impossibility. Even the Enumerated Powers Act is unlikely to happen. The response is that it is obvious the federal legislature will never agree to limit its powers unless it is forced. The way forward is to go through the states. Several states have recently been passing laws that make an explicit claim against the federal government’s encroachments against the 10th Amendment. For instance, the Montana legislature passed an act nullifying the federal Real ID Act within its borders. And more to the point of the 10th amendment and the federalism issue, a number of states have recently considered state sovereignty resolutions. As of the date of this writing, the list is 35 states long:
    1. Alabama (2nd Resolution, HJR403, introduced 03-24-09)
    2. Alaska (2nd resolution introduced 03-19-09) (HJR27 Passed 37-0 on 04-06-09) (Senate Passed HJR27, 19-0, on 04-19-09 – Awaiting Transmittal to Governor)
    3. Arizona (Committee voted Do-Pass on 04/14/09)
    4. Arkansas (failed in committee on 03-04-09 passed committee 04-01-09 failed House vote, 54-34)
    5. Colorado (04-27-09: Postponed by committee)
    6. Georgia (Senate Version – Passed 43-1 on 04/01/09)
    7. Idaho (Passed House 51-17, on 03-23-09, Passed Senate on 04-07-09)
    8. Illinois
    9. Indiana (2nd Senate Resolution Introduced 03-19-09) (SR0042 Passed Committe 8-0 on 04-01-09) (SR0042 Passed Senate 44-3 on 04-09-09)
    10. Iowa
    11. Kansas
    12. Kentucky (2nd resolution introduced on 02/24)
    13. Louisiana
    14. Michigan (senate version introduced 03-03-09)
    15. Minnesota
    16. Mississippi (senate resolution introduced 03-10-09)
    17. Missouri (passed house on 03-23-09) (senate public hearing 04-07-09)
    18. Montana (Failed 51-49 on 02-24-09) (Resolution reintroduced as HR3) (HR3 Passed House Committee on 04-21-09) (HR3 failed to pass in house, 50-50)
    19. Nevada (Committee 04-11-09: “No Further Action Allowed”)
    20. New Hampshire (resolution killed in house on 03-04-09: 216-150)
    21. New Mexico (tabled in committee)
    22. North Carolina
    23. North Dakota (passed house 52-40 on 04-07-09) (passed senate 25-20 on 04-20-09 – returned to house, amended) (passed House by voice vote on 04-27-09)
    24. Ohio
    25. Oklahoma (passed house on 02/18/09, senate version passed 25-17 on 03-04-09) (Joint version passed Senate, 29-18 on 04-15-09 – awaiting signuture of governor) (Vetoed by Governor on 04-24-09)
    26. Oregon
    27. Pennsylvania (senate resolution introduced 03-19-09)
    28. South Carolina (passed house on 02-26-09, senate – referred to subcommittee)
    29. South Dakota (passed house on 03-03-09 by a vote of 51-18, passed senate on 03-05-09 by a vote of 20-14)
    30. Tennessee
    31. Texas (senate resolution introduced 03-02-09 – senate’s 2nd resolution introduced on 03-04-09)
    32. Virginia
    33. Washington
    34. West Virginia
    35. Wisconsin

    State sovereignty resolutions haven’t yet passed in all 35 states, but if they did that would be 70% of the states, which is more than the 2/3s requirement for constitutional amendments (though less than the 75% required for ratification). The fact they are being considered at all in 35 states including such heavily Dem states as Wisconsin and Iowa is an indication that federalism is more popular than the statist ideological echo chamber of the media would have us believe.

    The point of this explication was that there is sufficient interest in the states to indicate that a raft of amendments limiting the power of the federal government have a chance of passing in the states, even if the federal legislature opposes them. Assuming the Constitution has any power left at all, this change cannot be stopped by the federal government!

    That is the strategy.

Though these changes are never going to be popular with the political classes, they are popular with the grassroots, as demonstrated by the people’s Tea Party movement. It is impossible to force any centralized agenda upon the Tea Parties, but if conservatives can articulate the concerns of the movement they can use the momentum to reform the Republican Party as a winning conservative party rather than a bunch of feckless go-along-to-get-along Democrats lite doomed to always sabotage real conservatives and lose every contest to real Democrats (also see RMSP, RLC, Benedict Arlen Specter, the Gang of 12, and DeMint’s “Big Party” op ed).


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9 thoughts on “Tea Parties and Federalism Amendments

  1. Pingback: Tea Parties and Professor Randy Barnett’s Federalism Amendments

  2. Pingback: Twitted by bumperboy

  3. Not bad, but I’m tied up reading the Sluggy comic strip right now and can’t be bothered with all this government, rights and liberties and all that stuff.

    /enstupiated sheeple mode OFF


    BTW, as long as we’re on doing away with the income tax, what about the FairTax, at least as a transitional method of funding things until the “feddle gummint” can be brought to heel?

  4. I think he’s proposing a national sales tax as a constitutional indirect tax that can be equally applied to everyone. That’s the heart of the Fair Tax so you’re thinking along the same lines.

  5. “the heart of the FairTax”–yes. But the devil’s in the details. As long as the repeal of the 16th Amendment is included and the road opened for the FairTax, I’d be pretty pleased with the amendments proposed. The repeal of the 16th Amendment alone would go a LONG way toward curbing the growing anarcho-tyranny that the “feddle gummint” has become. Heck, on a local level, towns, counties and school systems could take (much of) their communities back by simply saying “No!” to federal funds. Sure, it’d be a hardship for many communities having to fund the local systems more than twice over (considering the loss in the tax pipeline to “feddle gummint” skimming), but what price liberty?

  6. I made a video when the coalition responded to Obama’s invitation to talk… just a short response along the lines of Lloyd Marcus because we knew Obama would never show up to answer the hard questions, and the coalition looked ok by me if they were pushing that effort, but now it’s gone to a con-con? How did that happen?

    A con-con is extremely dangerous. It changes the Constitution. We can’t even enforce the one we have now and that is the problem and real reason for the Tea Party.

    I was particularly annoyed when some “leaders” took it upon themselves to state why people even attended these rallies. I’ve talked to people whose concerns range from everything from gun control to parental rights to candidates who ran who weren’t even checked for eligibility and there’s plenty more to add to the list. It wasn’t just about taxes. Who is anyone to say why they are there? That’s why we made signs.

    Sorry, but this proposal has tons of problems. First of all, it shouldn’t be written in such legalese that only a lawyer can make sense of it. If you’re going to ask people to back something, you’re going to have to put it in simple language and be specific about it. We already have enough problems with the Constitution we have being subject to someone’s interpretation because they act like the debates and written explanations don’t exist in our history.

    Take your Article #2 as an example of a bad proposal:

    “but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States”

    What does harmful emissions, determined by whomever, have to do with acts of war? Seems like two different subjects to me put into the same sentence. And if it is the same subject, there’s a big problem with that idea I shouldn’t have to explain.

    The bottom line is, if the Tea Party does have a theme, it’s about bringing back the Constitution. Our group has said to the politicians from the start, that if they concentrate on supporting the founding documents, we’ll support them. I don’t care if they call themselves Democrats or Republicans. Therefore, you have to bend a little here, too. If a politician steps up in support of that theme, you should be welcoming them with open arms and give the PEOPLE the decision to vote for what they promise. But give them a chance to speak.

    Going this alone, with no political support, even scorning their support, and now suggesting a con-con, is not the way to go.

    If you’re going to lead an effort, you’re going to have to let everyone speak and be heard. Open the doors of communication with any politician that offers to stand up for the Constitution we have NOW and I’m sure the people will hear them out and welcome it.

    One thing I’m sure of. The majority in this country love their Constitution. They don’t find “hope” in seeing it “changed”. They want it BACK.

  7. Jaded, those issues you bring up with the Federalism Amendments are exactly the kind of issues that need to be argued out and resolved. I don’t agree with every part of this proposal, but do think it’s a good start. I also think that if the marxist left were forced to write down its proposals they would be voted down by any con con, other than one composed mostly of marxists. So that is the trick, isn’t it? But that is already the trick, so I don’t see it as something that can be done as part of a rear-guard effort but something that will have to be done to consolidate change after the marxist coup has been reversed.

  8. Agreed, Beagle. Good to see someone else is intelligently skeptical. A con-con is a major deal and I’m sure the socialist-loving administration would love nothing more than to act like it’s in our best interests to revise the Constitution their way. They’ve tried to push a con-con for years and failed. I’m sure they would love nothing more than to baffle desperate people with BS and slip in their agendas under the guise that we thought of it.

    All we want are the documents this country was founded upon upheld once and for all and send the treasonous traitors packing to a jail cell where they belong.

    I’ve had enough of their “changes” already and there’s no “hope” in it. It’s modern-day slavery for all, spoonful by spoonful.

    Obama fears the Tea Party movement. That’s why he blames it on the media and scorns Americans using his little paid audience of giggle-queens in the background of his own media town-hall speeches. He knows we’re fighting for the Constitution, but if he admits that, people will see right through his game. Hate to tell him, but we already have.

    That’s why we have to be extra careful when we see proposals like this that aren’t explained very well.

  9. Pingback: Federalism Amendments – Reload « Beagle Scout

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