Monday, April 27, 2009

The Federalism Amendment

Professor Randy Barnett of Georgetown Law (and counsel for the petitioner in Raich v. Ashcroft) proposes a new amendment to US Consitution in the WSJ:

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Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.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

I like it. Such an amendment would effectively restore the Founder's view of the states as independent laboratories of political experimentation. The Founders knew that people in Massachusetts would not want to live under exactly the same laws as people in Alabama - so they set up a system known as federalism, which allows different states to choose different policies. How novel. Only now, when the people of Massachusetts or California vote to do something the rest of "us" don't like, we petition the Feds to put a stop to it (e.g., gay marriage or medicinal marijuana). Whole article here.