The Volokh Conspiracy

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Using constitutional amendments to teach federalism


I received a very gratifying message from two high school teachers that (with their permission) I am reprinting here. It turns out that at least one of them is a regular reader of the Volokh Conspiracy!

We are high school teachers at a charter school in Raleigh, NC. I teach AP Government and Politics and most of our students are 10th graders. We've often had trouble getting them to understand how important the concept of federalism is and how it affects so many aspects of their lives.

This year we decided to use your proposed amendments to hold a mock NC ratification convention for five of your amendments as if those amendments had been voted out of Congress. We had read your column about your amendments in the Wall Street Journal and thought your proposals would make a good foundation for the students to delve deeper into these concepts.

The students had to research arguments supporting and opposing your amendments and apply what we've learned to debate in class. We held the convention last week and it was so gratifying to see 15-year old students talking about how the federal government had expanded the Commerce Clause and why that might be a good or bad development for states. Or to hear them debate unfunded mandates when a week previously they hadn't known what a federal mandate was and how that power has been abused.

The kids really enjoyed it and we even heard them discussing federalism at lunch and after school! This is the most successful class activity I've used since I started teaching this class 12 years ago and Melani started four years ago and we wanted to express our gratitude for your proposals. We don't know that we'll ever see any action on any of your proposed amendments, but they did help interest a new generation of students.

In case you're interested, over three sections of AP Government, we ratified Amendments 2 and 8 and they voted down Amendments 3, 6, and 7.

Betsy Newmark
Melani Winter

Here are the proposed amendments as they appear in the newly revised edition of Restoring the Lost Constitution (which also contains an explanation of the rationale for each):

Article [of Amendment 1]-[Restrictions on Tax Powers of Congress]

Section 1. Congress shall make no law laying or collecting taxes upon incomes, gifts, or estates, or upon aggregate consumption or expenditures; but Congress shall have power to levy a uniform tax on the sale of goods or services.
Section 2. Any imposition of or increase in a tax, duty, impost, or excise shall require the approval of three-fifths of the House of Representatives and three-fifths of the Senate, and shall separately be presented to the president of the United States.
Section 3. This article shall be effective five years from the date of its ratification, at which time the 16th Article of amendment is repealed.

Article [of Amendment 2]-[Limits of Commerce Power]

The power of Congress to make all laws which are necessary and proper to regulate commerce among the several States, or with foreign nations, shall not be construed to include the power to regulate or prohibit any activity that is confined within a single state regardless of its effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive regulatory scheme; but Congress shall have power to regulate harmful emissions between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.

Article [of Amendment 3]-[Unfunded Mandates and Conditions on Spending]

Congress shall not impose upon a State, or political subdivision thereof, any obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall Congress place any condition on the expenditure or receipt of appropriated funds requiring a State, or political subdivision thereof, to enact a law or regulation restricting the liberties of its citizens.

Article [of Amendment 4]-[No Abuse of the Treaty Power]

No treaty or other international agreement may enlarge the legislative power of Congress granted by this Constitution, nor govern except by legislation any activity that is confined within the United States.

Article [of Amendment 5]-[Freedom of Political Speech and Press]

The freedom of speech and press includes any contribution to political campaigns or to candidates for public office; and shall be construed to extend equally to any medium of communication however scarce.

Article [of Amendment 6]-[Power of States to Check Federal Power]

Upon the identically worded resolutions of the legislatures of at least one half of the states containing no less than half the citizens of the United States, any law or regulation of the United States, identified with specificity, is thereby rescinded.

Article [of Amendment 7]-[Term Limits for Congress]

Section 1. No person may serve for more than twelve years as a member of Congress, whether such service is exclusively in the House or the Senate or combined in both Houses.
Section 2. Upon ratification of this Article, an incumbent member of Congress whose term exceeds the twelve-year limit shall complete the current term, but thereafter be ineligible for further service as a member of Congress.

Article [of Amendment 8]-[Balanced Budget Line Item Veto]

Section 1. The budget of the United States shall be deemed unbalanced whenever the total amount of the public debt of the United States at the close of any fiscal year is greater than the total amount of such debt at the close of the preceding fiscal year.
Section 2. Whenever the budget of the United States is unbalanced, the President may, during the next annual session of Congress, separately approve, reduce, or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States.
Section 3. Any legislation that the President approves with changes pursuant to the second section of this Article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed in the seventh section of the first Article of this Constitution, separately reconsider each reduced or disapproved monetary amount.
Section 4. The Congress shall have power to implement this Article by appropriate legislation; and this Article shall take effect on the first day of the next annual session of Congress following its ratification.

Article [of Amendment 9]-[The Rights Retained by the People]

Section 1. All persons are equally free and independent, and have certain natural, inherent, and unalienable rights which they retain when forming any government, amongst which are the enjoying, defending, and preserving of their life and liberty, acquiring, possessing, and protecting real and personal property, making binding contracts of their choosing, and pursuing their happiness and safety.
Section 2. The due process of law shall be construed to provide the opportunity to introduce evidence or otherwise show that a law, regulation or order is an infringement of such rights of any citizen or legal resident of the United States, and the party defending the challenged law, regulation, or order shall have the burden of establishing the basis in law and fact of its conformity with this Constitution.

Article [of Amendment 10]-[Neither Foreign Law nor American Judges May Alter the Meaning of Constitution]

The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V; nor shall such meaning be altered by reference to the law of nations or the laws of other nations.