Fixing the Constitution By Restoring Federalism


At The New York Times' Room for Debate blog, participants are currently addressing the question, "If the U.S. Constitution were being written today, what would you omit, add or clarify?" Florida International University law professor Elizabeth Price Foley says "don't change the text," just bring back federalism:

To some, the F word is constitutional obscenity. It is relabeled "states' rights" and followed by reference to slavery and the Confederacy. This taps into deep emotions but is utterly wrong.
Greater engagement with the existing Constitution is best, but proposed amendments aimed at restoring state power are worth considering.

Federalism isn't about states' rights. It's about individual liberty. The Supreme Court emphasized this in Bond v. United States (2011): "By denying any one government complete jurisdiction over all the concerns of public life, federalism protects the liberty of the individual from arbitrary power. When government acts in excess of its lawful powers, that liberty is at stake." And lest you think this emanates from the court's right wing, Bond was unanimous.

The powers "reserved to the states" under the 10th Amendment are functionally nonexistent if the Constitution's carefully enumerated powers are infinitely capacious. So while the 10th Amendment doesn't tell us what powers belong to the states, its message is clear: preserving federalism requires vigilant enforcement of limited and enumerated powers.

Read the whole thing here.

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  1. If the U.S. Constitution were being written today, what would you omit, add or clarify?

    About 10,000 additional sections to the Bill of Rights outlining in microscopic detail things the government absolutely can’t do — and making government officials subject to prison time for violations.

    1. You only need three rules.

      Rule 1
      No person may initiate force, threats of force, or fraud against any other person’s self or property.

      Rule 2
      Force may be used in defense against those who violate Rule 1.

      Rule 3
      No exceptions shall exist for Rules 1 and 2.

  2. That case couldn’t possibly have been unanimous, because I have been assured on here several times that the liberal wing only votes in the most liberal fashion on every case in which there is an identifiable liberal issue.

  3. The only way stronger state power is amenable to individual liberty is insofar as people can move among the states, a dubious conception of freedom. Otherwise, states trample on freedom far more easily than the feds, as anyone who lives in a red state and hates being told how to live by religious conservatives and/or bigots (or anyone who lives in a blue state and hates being told what to eat and drink) can attest. States should have wide latitude but there should be a minimum acceptable level of abridgment of freedom, which is the principle that underlies all the federal interventions in state abuses of people that southern conservatives still bitch about.

    1. moving to another state is not that hard, in the broader context. Certainly easier than finding a new country. Once the feds can set “a minimum acceptable level”, there is no preventing the minimum from going up. And that assumes folks can agree on acceptable.

    2. You really think federal interference into state affairs is strictly limited to mitigating abuses by southern conservatives?

    3. It’s not about giving the states more power, it about the states putting a check on the feds, and the feds putting a check on the states. It’s not about growing power it’s about decentralizing power.

  4. I’d be scared shitless of a constitutional convention today. But if I could have my way, we’d beef up the language limiting government power, strike the stuff that didn’t work or are currently damaging the republic, and add some additional checks on government power.

    Also, there would be an extremely clear statement that the Bill of Rights is not an exhaustive list of rights and that the 9th and 10th are neither inkblots nor dicta.

    1. There would be an amendment requiring 24/7 coverage of Kim Kardashian and the Real Housewives.

    2. So no 19th Amendment?

    3. strike the stuff that didn’t work or are currently damaging the republic

      Awfully vague… I’m pretty sure everyone would agree with this for their own definitions of “the stuff that didn’t work or are currently damaging the republic”. See Tony and gun ownership

  5. An amendment that somehow regularizes and depoliticizes congressional districting nationwide. An amendment clarifying that money is not the same thing as speech. Delete the 2nd Amendment. Dunno if the constitution needs to be changed, but both the Supreme Court and Congress need to be larger. I could think of more.

    1. Impossible to construct an amendment that wouldn’t somehow infringe on speech. It can’t be done. Because the only way to keep the money out of politics is to keep people from speaking on someone’s behalf. And then you get into the odious in-kind contribution mess.

      It’s the law, Tony, money and power will find eachother. Remove the power, and the money will go elsewhere.

    2. the 2nd is as necessary as the 1st. When constructed, it was meant to give the people the means of rising up against an oppressive govt. It is no coincidence that dictatorships come with a ban on private gun ownership.

      Of course, money is speech. It’s how organizations from PTA’s to unions to big companies participate in the process.

      If you can figure out how to end gerrymandering, it may be the rare issue on which folks here would agree with you. Drawing districts should not be a spoil of having a majority.

      1. “Of course, money is speech. It’s how organizations from PTA’s to unions to big companies participate in the process.”

        Lemme ‘splain something to ya, brother.

        First, we have you. You have 1 vote. This is your “voice” in politics.

        Now we take 100 other people. These people have 100 votes. They can vote in unison if they so choose, giving them the power of… wait for it… 100 votes. All they’ve added to the 100 votes is unified intent, which is fine. You too, if so motivated, could collect 100 others and vote in opposition — because collecting like minded folk is a 0-cost enterprise. But you don’t even need to do that. Because out there, there will be 100 people who agree with you.

        Now… we call this group of others, say, “the PTA.” Now, the PTA applies itself to the political process, leveraging the group’s 100-ness in various ways. PLUS they will vote.

        Now these people have MORE political power than 100 votes.

        You, however, still have exactly one, and it is no longer worth 1/100th of the PTA’s.

        Do you understand now why allowing corporations and club-like collections of the loony and/or well-meaning etc. to apply leverage other than the votes they had in the first place is bad?

        If your vote is to mean anything, it has to be measured against other votes in an equitable manner. As soon as you allow entities that are not voters per se to tamper with the politics, your vote becomes very much smaller than it otherwise would be, and your opinion becomes irrelevant.

        1. Buying ad time IS NOT LEVERAGE.

          I’ve read some retarded shit here, but that little screed is definitely in the top 10.

    3. An amendment that somehow regularizes and depoliticizes congressional districting nationwide.

      You actually started well.

      An amendment clarifying that money is not the same thing as speech. Delete the 2nd Amendment.

      Only to try to use the Constitution to ban people from doing stuff you don’t like. My next proposal: An amendment to clarifying that gay stuff doesn’t count as stuff protected from the government!

      Dunno if the constitution needs to be changed, but both the Supreme Court and Congress need to be larger.

      Besides the Senate the size of those is not part of the Constitution.

    4. So, you want to write inequality and classes straight into the Constitution?

  6. A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms shall not be infringed.

    1. …nor limited in any way via regulatory measures such as licensing.

      1. That’s actually 100% covered under “infringed”.

        But unless you get rid of the legislators and judges who make stuff up on the spot, it won’t matter how you word it. The constitution isn’t very broken, with the exception of the 2nd, which really needs to be amended to say “except nuclear, biological, and chemical effect weaponry.” I don’t mind if you own an armed frigate and park it in the river, or a tank in your driveway, or even a quite formidable fighter jet in your hanger, but I’m sorry, no nukes, no chemical effect weapons, and no biological weapons.

        1. “except nuclear, biological, and chemical effect weaponry.”

          What about crossbows?

          /Invention of the Devil

          What about RRRRaaaiid!?

          /Dual use

          What about phased plasma rifles in the 40-watt range?


  7. [The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes;

    Congress shall make no law abridging the voluntary transactions of a free people.

    The Congress shall have the power to remove state-erected barriers to commerce among the several states.

  8. The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States…

    1. If they can’t collect taxes, how are they going to pay for defence?

  9. Oh, I have something else. The Constitution would be printed in graphic form. You know, like a comic book.

    1. I still say the second amendment should be written in that badass heavy metal font, with umlauts.

      1. In the comic book version, it will be explained by Ozzy.

  10. Repeal the 16th and 17th amendments.

  11. I think the important thing to remember about federalism is that states don’t have the right to surrender their prerogatives to the feds. In many cases, state politicians WANT the feds to come in and take some of the burden of funding and the blame for bad policies. Plus every state politician is a would-be federal politician, so they are fair-weather friends of federalism at best.

    By the same token, Congress should not be able to delegate its power to make legislation. Every regulation written by bureaucratic agencies should be advisory until passed by Congress and signed by the President, like any other law.

    If we’re adding stuff, then we definitely need a burden-shifting amendment establishing the presumption that any government act is unconstitutional unless specifically authorized somewhere. Also a provision protecting the right to ingest whatever you want. And an explicit amendment on property and contracts.

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