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Source link: http://archive.mises.org/11274/michael-boldin-on-randy-barnett-and-federalism/

Michael Boldin on Randy Barnett and Federalism

December 17, 2009 by

I just recalled interesting article by Michael Boldin of the Tenth Amendment Center, Randy Barnett and the Destruction of Federalism. I had made some comments on it to someone in email, which are adapted below. I also commented on this previously in Randy Barnett’s Proposed “Federalism Amendment”. In my view, a better view is that amendments are pointless, as the state is construing its own limits. (See on this Hoppe and de Jasay.)

Also, as Boldin is proposing nullification, he could have mentioned some previous proposals for amendments that do similar things–i.e. instead of just advocating nullification, advocate the recognition of this right, in an amendment to the Constitution–I give in my blog post noted above (quoting from a law review article of mine) an explicit nullification type proposal.It’s not clear why Boldin doesn’t mention secession. That goes along with nullification. The right to secede is the most important way to have real federalism–the threat of leaving. A real federalism amendment would explicitly recognize the right to secede.

In partuclar: in my post, I wrote:

In my Taking the Ninth Amendment Seriously: A Review of Calvin R. Massey’s Silent Rights: The Ninth Amendment and the Constitution‘s Unenumerated Rights (Hastings Constitutional Law Quarterly, 1997), I survey a couple of other proposals for amending the Constitution. One my favorite is this one by Joe Sobran:

What we need is an amendment forbidding the circumvention of the Constitution. It could read: “The Constitution shall not be circumvented. ” I just got a big laugh from any lawyers who may be reading this.

More seriously, a better way to increase federalism than Barnett’s amendment would be the proposal of Marshall DeRosa, as set ot in book The Ninth Amendment and the Politics of Creative Jurisprudence (online copy; Google books version; Amazon; David Gordon’s review). DeRosa proposes an ingenious constitutional amendment, which would read as follows:

When a national majority of each State’s chief judicial official declares a decision by the U.S. Supreme Court to be inconsistent with the U.S. Constitution, the said decision shall thereby be negated and precedent restored. The States’ designated chief judicial officers shall convey their declarations to the U.S. Solicitor General, who in turn will notify the Chief Justice of the U.S. Supreme Court to take appropriate measures consistent with this amendment.

As DeRosa explains, this would allow controversial Supreme Court decisions to be overturned “more expeditiously and competently” than at present. The states would not have to “resort[] to a cumbersome amendment process or the national congress that is significantly detached from states’ interests.” Also, the amendment would have a chilling effect on the Supreme Court, making it more reluctant to issue unreasoned or unconstitutional decisions, just as lower courts are reluctant to issue decisions that may be overturned by higher courts. In essence, this amendment would “heighten popular control over unenumerated rights jurisprudence, and to that extent a significant portion of originalism would be recovered.”

As I noted in my article, this amendment would be prefereable to that suggested by Robert Bork, since Bork’s amendment would have little positive effect on federalism. (In his book Slouching Towards Gomorrah: Modern Liberalism And American Decline, at p. 117, Bork proposed a constitutional amendment to make “any federal or state court decision subject to being overruled by a majority vote of each House of Congress.”)

As for other potentially useful amendments, unfortunately, Sobran‘s proposed amendment, “The Constitution shall not be circumvented,” would be easily circumvented, as Sobran recognized. However, Sobran proposes another “amendment that would actually restrain the federal government. It would read: ‘Any state may, by an act of its legislature, secede from the United States.’” This is what is sorely lacking from Barnett’s proposal.

{ 1 comment }

Michael Boldin December 17, 2009 at 12:39 pm

Stephan, I always find your posts to be educational, and more than insightful. Your commentary on the incorporation doctrine, for example, have been quite influential for me. Thank you for writing this post!

On this issue, I think we certainly agree on most points. I’ve written a quick reply at The Tenth Amendment Center with a few responses to the points you’ve made, for example:

In my view, a better view is that amendments are pointless, as the state is construing its own limits. (See on this Hoppe and de Jasay.)

That’s actually the argument that I was at least attempting to make in the article – that nullification – mass civil disobedience to the central state, with support from the individual state governments and local governments – is a far better strategy than trying to reform the federal government through amendments (or any other way, for that matter)

I hadn’t considered any of the amendment proposals you’ve mentioned here. While I doubt that I’ll find any interest in trying to change D.C. and would prefer to resist it – if anyone asks what I consider a good constitutional amendment, I’ll certainly be referring back to your suggestions!

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