Reining In Leviathan by Amendment

“We no longer have sovereign states,” I told my friend when he mentioned that term in conversation. “We fought a war over that,” I told him. “When the dust settled, we had redefined our system of government so that we now have a central authority with vassal states rather than sovereign states with a central power that manages limited common concerns.” And it has only become more centrally focused and sprawling since then.

Constitutional law professor Randy Barnett thinks it’s time to take the Constitution back to its original meaning (plus most amendments). The way to do that, argues Barnett in this WSJ op-ed, is through a new constitutional amendment that “would restore a healthy balance between federal and state power while protecting the liberties of the people.”

Barnett’s article is a reduction of arguments made in part of his 2003 book Restoring the Lost Constitution. (You can read part of the book online at this Google Books link.) In his 2000 book The Structure of Liberty, Barnett promotes the idea of legal libertarianism. He explains individual rights and our duties to each other as defined by natural law and lays out the reasoning behind a properly limited government.

Trying to pass a constitutional amendment that would limit federal power would be a nearly insurmountable task. After all, two-thirds of both houses of Congress would have to vote to limit their own power. Rarely has there been an instance of a politician actively working to reduce his own power, let alone a large group of politicians doing so. In general, politicians will always seek to limit their own accountability but will fight tooth and nail to avoid giving up the least scintilla of power.

But the reality is that the collective number of state politicians vastly outnumbers that of federal politicians. Barnett suggests that states could do much as they did when promoting the 17th Amendment. Back then enough states petitioned for a constitutional convention over the issue of direct election of senators (as allowed by Constitution Article V) that Congress acquiesced, rather than risk a “runaway convention that states can exploit to bring Congress to heel.”

Would states actually petition for a constitutional convention in this day and age? Quite a number have passed toothless resolutions reaffirming their sovereignty under the 9th and 10th Amendments. But many states are so beholden to the federal gravy train that it is difficult to imagine them threatening that revenue stream.

Still, these are unusual times. “States,” claims Barnett, “have nothing to lose and everything to gain by making this Federalism Amendment the focus of their resistance to the shrinking of their reserved powers and infringements upon the rights retained by the people.” Well, nothing but a load of cash with strings tied to it. Those strings, ladies and gentlemen, translate into jobs that employ real people like your neighbors and mine.

You can argue until you’re blue in the face that cutting the federal apron strings would ultimately lead to better, more productive jobs, but libertarians knows that it’s very difficult to get people to buy that line. People losing jobs makes the news big time. Job creation by entrepreneurial businesses makes small time news if it makes the news at all. Job losses are very real while promises of future jobs are ethereal. Little will turn a feisty politician into a lap dog quicker than threatening to pin job losses on him.

Barnett’s suggested language for a Federalism Amendment is somewhat bold. On first reading, I figured that it would cause a significant sea change in the way things currently work in the U.S. On second reading, I think that it would result in sweeping changes, but not quite as broad as I first imagined.

Perhaps the greatest change Barnett is proposing is one he discusses rather lightly: the repeal of the 16th Amendment. Federal income tax would go away five years after the Federalism Amendment was ratified. “Congress,” explains Barnett, “could then replace the income tax with a "uniform" national sales or "excise" tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax.”

Without using the actual words, Barnett is proposing replacing the federal income tax with the FairTax, a national sales tax system (but perhaps without the revenue neutrality element). Doing so, claims Barnett, “would strike at the heart of unlimited federal power and end the costly and intrusive tax code.” Yes, but would it only be replaced by another costly tax code? There are legitimate concerns about the FairTax from various perspectives (see here and here for example). Much debate would be needed on this issue.

Another of Barnett’s provisions would reign in a judiciary that has become quite comfortable with legislating from the bench and applying supposedly modern nuance to the language of the Constitution. This provision states (in part), “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 have often argued that we follow this same precedent with respect to every other legal document in the nation. How is it that we fail to do so with respect to our most important legal contract? Members of the judiciary would go nuts over this provision. They would say that it is unworkable. But it would re-enthrone the amendment process outlined in Article V as the only way to bring the Constitution up to date. Changes would require a general national consensus rather than a ruling by the majority of an elite few.

While Barnett’s proposal is intriguing, he seems to assume that most Americans would welcome something like the Federalism Amendment. I’m not at all sure that is the case. For one thing, there is a nearly dogmatic pursuit of uniformity that runs through many facets of society. In our increasingly interconnected world, there is a decreasing level of tolerance for diversity in state and local policy. It’s just too darn inconvenient for some people.

Another significant issue is that all Americans are either currently financially beholden to the federal government or will be so in the future. Barnett suggests that his amendment would get rid of most federal wealth transfers, including Social Security. Although the amendment would grandfather everyone living into Social Security, few want to consider relegating future generations of Americans to the poverty situation in which many elderly found themselves in the days before Social Security.

Trying to sell such a plan at a time when people have seen their 401k balances evaporate simply isn’t going to fly. Besides, most Americans can’t believe that Social Security will eventually become insolvent. How can it be that we can’t afford to bolster Social Security, they wonder, when we can afford to throw around trillions of dollars of ‘stimulus’ money? You can lecture people about Social Security being a pension plan with a limited balance, but too many shenanigans have occurred for people to believe that anymore.

At any rate, a Federalism Amendment would have to be carefully worded, since experience shows that the potential for mischief in constitutional language is substantial. Could a Federalism Amendment be something that conservatives could get behind, as Barnett suggests? That’s quite possible. But unless it appeals to a much broader segment of the population it will be relegated to permanent fringe status.