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Source link: http://archive.mises.org/14862/randy-barnetts-federalism-amendment/

Randy Barnett’s Federalism Amendment

December 3, 2010 by

Last year I discussed Randy Barnett’s proposed constitutional amendment in Randy Barnett’s Proposed “Federalism Amendment” and Randy Barnett’s “Federalism Amendment”–A Counterproposal. The amendment would give a two thirds majority of the states the power to repeal any federal law or regulation.

As noted in recent blogposts (Does Amending the Constitution Dishonor the Founding Fathers? by Damon Root on Reason‘s Hit & Run blog and Reflections on the Repeal Amendment by Ilya Somin on Volokh Conspiracy), the idea has now been endorsed by a number of congressional Republicans, including soon-to-be House Majority Leader Eric Cantor. I doubt it will go anywhere, but it’s good to see it getting more attention.

As I noted in my posts from last year, Barnett’s proposal could be improved by explicitly recognizing the constitutional right of states to secede, and other changes. And a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction (on this, of course, see Tom Woods’s Nullification).

{ 24 comments }

J. Murray December 3, 2010 at 11:46 am

20% sounds like a better target number. There needs to be some mechanism for the minority to protect itself from the tyrrany of the majority.

Daniel Kuehn December 3, 2010 at 11:46 am

I’m not sure if you realized, but this has also been discussed recently in the Virginia state legislature. I wrote about that, and my support for the amendment, here:

http://factsandotherstubbornthings.blogspot.com/2010/11/states-rights-and-constitution-in.html

Although you’ll see I support it precisely because it’s federalism but not nullification/secessionism. My view is that nullification and secession as conceived by Woods defeat the whole purpose of a federal republic – but yes, I agree – this amendment is a very good idea.

RWW December 3, 2010 at 9:32 pm

What is “the whole purpose of a federal republic”?

scineram December 3, 2010 at 12:10 pm

“explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction”

Which would defeat the whole point of having the union in the first place.

Daniel Kuehn December 3, 2010 at 12:19 pm

Right.

I wish Tom Woods and other nullificationists would simply come out and say they don’t think federalism is a good idea – that they want a mutual security compact between independent states or something like that.

Did Jefferson and Madison similarly not like federalism? I think that’s harder to say because in the early republic everyone was necessarily groping around in the dark. I feel pretty comfortable saying they probably wanted a meaningful federalism, not just a mutual security compact, and that they were simply reacting to a shocking overreach by Adams. Jefferson and Madison I expect were closer to states and localities saying “I’m not going to wait for the Supreme Court to tell me the Patriot Act is unconstitutional” than they were to the secessionist doctrines that would emerge in the 1860s.

David Bratton December 3, 2010 at 12:31 pm

I’ll say it. Federalism is a mere confidence game and it always has been. There is no such thing as divided sovereignty. Divided sovereignty is a contradiction in terms because sovereignty is the power to act as the final judge in all disputes. There cannot be two opposing final judges, so either the states are sovereign and the Federal Government is not, or it’s the other way around.

Daniel Kuehn December 3, 2010 at 12:42 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government. Biases may emerge from time to time and the decision making isn’t perfect, but I don’t see any reason to believe it is systematically imperfect. The case that the Supreme Court is beholden to the Federal Government is very weak, and it’s always a case that is made by citing innuendo and personal dissatisfaction with decisions, rather than evidence or even logic.

Now – that’s not to say the actual institutions of governance couldn’t be more balanced – they can be. The actual institutions of governance are quite imbalanced, which is why we see a drift towards the federal government (the Supreme Court can’t make all adjustments… some disputes never come before it). That’s why I support the Federalism Amendment. But that’s a very different argument from the argument that federalism itself is a “contradiction in terms”.

nate-m December 3, 2010 at 1:32 pm

And I gather you think the Supreme Court is going to be a lap dog to the Federal government… an institution which essentially has no authority or sway over the justices at all?

Um. I don’t know if this comes as a shock or anything, but the USA Supreme Courts is part of the Federal Government. You can’t say that ‘Sumpreme Court has sway over the Federal Government’ because they are one and the same. It’s like saying that my arm is a significant influence over the behavior of my liver.

I think people who make your case vastly overstate this issue of a “final judge”. Our final judge may not always agree with you, but that is hardly the same as saying they are biased in favor of the federal government

Seeing how Supreme Court justices are appointed by the actions of the other two branches of government then I don’t see why it would come as a shocker that the they are going to appoint people that agree with their political viewpoints.

In case your not getting what is being said here:

The Supreme Court is a balance for government power in the same way that Congress controls the government budget and the Executive branch has the power of the veto. This is designed to _slow_down_ bad legislation to prevent politicians from taking advantage of shocking events and temporary extreme sways in public opinion to pass power-grabbing legislation.

The Supreme Court is made up of pro-federal-government judges because that is what the other branches of the federal government wanted to be in there. The Supreme Court, like everybody else in the planet, are just going to act on their own self interest. Nothing more, nothing less.

The Supreme Court is NOT the ultimate power or counterweight for Federal power. It is PART of the Federal power.

The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.

But that is thrown out the window with everything else a hundred years ago.

Daniel Kuehn December 3, 2010 at 1:44 pm

I didn’t think I needed to clarify the initial point. Are you being sarcastic? In case you’re not I’ll clarify – yes, the Supreme Court is a part of the Federal Government but it has no role in providing federal-level governance outside its task of judging. It therefore has no interest in expanding power at the federal level. Clear?

Now – you are exactly right that Supreme Court justices are appointed by other branches of government. This is precisely why I think it would be better to have election of Senators by state legislature and repeal authority for the state legislatures. But there’s nothing about the Supreme Court being a court in Washington D.C. that introduces a problem here.

“The system is designed so that the power resides in the state so that the state is the final arbitrator and that the individual states are ultimately answerable to local constituents.”

Are we reading the same Article 3? Power resides in the states to be sure. I am struggling to see support for your conclusion that final arbitration does. Could you cite something to that effect?

Beefcake the Mighty December 3, 2010 at 1:48 pm

“It therefore has no interest in expanding power at the federal level. Clear?”

This statement, if honestly put forth, is naive, I’m afraid.

Daniel Kuehn December 3, 2010 at 2:18 pm

Beefcake –
Well note also what I agreed on with nate regarding the incentive structure of the Supreme Court.

If you’re willing to note other incentives I’m all ears and happy to agree if they seem sensible.

My point is simply that they are not beholden to the federal governing bodies or dependent on them in the way that the modern nullification view insinuates.

J. Murray December 3, 2010 at 12:28 pm

A Federation is a group of sovereign nations that band together and agree on common rules. The United States isn’t a nation. It’s 50 nations engaged in a pact of common economic rules and military protection. Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.

The Federal government was meant to be the steward of the common military defense and to ensure the individual states weren’t violating the rules lain out in the Constitution, mainly ensuring the free movement of people and goods between the borders. Anything that extends beyond this duty can be nullified.

Daniel Kuehn December 3, 2010 at 12:45 pm

“Because the USA isn’t a nation, no state or Federal elected body can force any other state to engage in practices that violate the terms of the original pact. That’s the purpose of nullification.”

Nobody is arguing that a Federal elected body can force a state to violate the terms of the original pact.

The argument is that nullification is wrong because it would allow individual states to violate the terms of the original pact when constitutionally legitimate Federal action is deemed inconvenient.

It’s precisely because of the anti-Constitutionalism of nullification that people are opposed to it.

Stephan Kinsella December 3, 2010 at 12:49 pm

No, it wouldn’t. You speak from ignance. Read Woods.

and if it did–good.

Daniel Kuehn December 3, 2010 at 1:04 pm

I haven’t read Woods but I’ve listened to several versions of his lecture on nullification. Unless Woods takes a completely different approach in his book than he does in his lectures, I have to agree with scineram.

Might I submit, Stephan, that you are wrong to say that scineram is arguing from ignorance and that the wedge between you and scineram emerges from a difference in your views on “the whole point of having the union in the first place”.

It seems unnecessary for you to accuse others of ignorance, when this seems like the far more likely explanation for your disagreement.

Stephan Kinsella December 3, 2010 at 1:07 pm

MAdison and Jefferson favored nullification. Were they against the Union? Come on, this is nonsense.

Ben December 3, 2010 at 1:55 pm

I think the whole crux of the argument is that if the Federal Government is telling the states to do something that the state believes to be unconstitutional, then the state has every right to nullify that law. After all, the Federal government is only allowed as much power as the states grant it, not the other way around. As long as the states are not doing anything outside the bounds of the constitution, then there is really nothing the Federal government can do.

Mark December 3, 2010 at 2:33 pm

I’ve often entertained different constitutional amendment ideas that would reign in the federal government, but I decided the only one that will work is an amendment that takes away the federal government’s power to tax and forces it to subsist on voluntary contributions from the state. That’s the only one that transform the federal government from master into the agent of the states intended by the original ratifiers of the Constitution.

Ben December 3, 2010 at 3:24 pm

I’ve often wondered (since I got my first paycheck at 15 and saw how much I was paying in tribute), why do the states tolerate the federal government taking their money and then making them jump through all kinds of hoops to get back the money that belonged to the state in the first place?

J. Murray December 3, 2010 at 4:06 pm

40 out of the 50 states are net tax recipients. It’s just another matter of tyranny of the majority. The 40 states simply outvote the 10 states that send up more in forced tribute than ever get back.

Nikolaj December 3, 2010 at 8:12 pm

Stephan you said:
“And a far better improvement would be an amendment explicitly recognizing the right of individual states to nullify any federal law from being enforced within the state’s jurisdiction”

Would not such a request be an explicit recognition that now the right to nullify does not exist (when it clearly exists, see Woods, Nullification)?

Stephan Kinsella December 4, 2010 at 9:25 am

Fair point; and one advantage of nullificaiton is that it can be done NOW by one state standing up to the feds. They don’t need to wait for such an amendment. But I’d take it anyway.

Same with secession: it is a right too, but the feds have muddied the waters so I would be happy with an amendment making it clear, even though arguably it’s “unnecessary”. The state has made unnecessary things necessary by its predictable chicanery.

RWW December 3, 2010 at 9:36 pm

States don’t have rights. This whole discussion puzzles me.

Stephan Kinsella December 4, 2010 at 9:24 am

This is a tired old argument. Everyone knows that “states rights” doesn’t mean states have rights, any more than “property rights” means property has rights. IT simply refers to the limited and enumerated powers nature of the federal state.

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