Legal Commentary

Help Draft the Federalism Restoration Amendment

By Randy Barnett

Nearly one year ago I proposed a Federalism Amendment in the Wall Street Journal followed four weeks later by a Bill of Federalism containing ten amendments, which appeared on Forbes.com. This has led me to hear from hundreds of citizens, and state legislators from around the country, about the pros and cons of constitutional amendments in general and my proposal in particular.

Given the enactment of the health insurance legislation this week, the time is now ripe for a stripped down amendment proposal that would address the issue of national control of health insurance, as well as the construction of Congressional commerce power by the courts that has greatly exceeded the original meaning of the Constitution. A proposal that is clear enough for concerned citizens, activists, state legislators, and candidates for Congress in 2010 to understand and support with confidence. A proposal that would unite all who believe in the original constitutional scheme of limited and enumerated federal powers, whether their politics are left, right, or libertarian.

To this end, I have drafted a new proposed amendment and am seeking the critical comments of Volokh Conspiracy readers to dissect the proposal to expose any weaknesses, ambiguities, or unintended consequences. (You can also say why you like it, but that is not the point of this post.) Here is the wording of

THE FEDERALISM RESTORATION AMENDMENT

The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity?s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.

To be clear, I am NOT proposing this now. I am sure that there is lots I have not thought of and I cannot make any proposal until I get the sort of feedback I know our readers can provide?including all the reasons why this is a terrible idea.

So Volokh readers, here is your chance to make history?or to stand athwart history and yell ?stop??civilly, of course. If you hate the idea, it is in your interest to sweetly persuade me just how rotten an idea it is. Comments are open.

PS: This proposal would have no affect on the power of Congress under Section 5 of the Fourteenth Amendment.

Full post as published by The Volokh Conspiracy on March 26, 2010 (boomark / email).