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).