In response to an unprecedented expansion of federal power, citizens have held hundreds of "tea party" rallies around the country, and various states are considering "sovereignty resolutions" invoking the Constitution's Ninth and Tenth Amendments. For example, Michigan's proposal urges "the federal government to halt its practice of imposing mandates upon the states for purposes not enumerated by the Constitution of the United States."
While well-intentioned, such symbolic resolutions are not likely to have the slightest impact on the federal courts, which long ago adopted a virtually unlimited construction of Congressional power. But state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
An amendments convention is feared because its scope cannot be limited in advance. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.
Here's how: State legislatures can petition Congress for a convention to propose a specific amendment. To restore balance between federal and state power and better protect individual liberty, the repeal of the income tax amendment could be folded into a new "Federalism Amendment."
Section 1 of the Federalism Amendment would expand the power of Congress to include any interstate activity not contained in the original meaning of the Commerce Clause.
Section 2 allows state policy experimentation by prohibiting Congress from regulating any activity that takes place wholly within a state.
Section 3 adopts James Madison's reading of the taxing and borrowing powers of Article I to limit federal spending to that which is incident to an enumerated power. It explicitly allows Congress to honor its outstanding financial commitments to living persons, such as its promise to make Social Security payments.
Section 4 eliminates the federal income tax, after five years, in favor of a national sales or excise tax.
Finally, Section 5 authorizes judges to keep Congress within its limits by examining laws restricting the rightful exercise of liberty to ensure that they are a necessary and proper means to implement an enumerated power.
Could such a Federalism Amendment actually be adopted? Stranger things have happened--including the adoption of each of the existing amendments. States 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.
Randy Barnett is a professor of constitutional law at Georgetown University, a senior fellow with the Goldwater Institute, and the author of "Restoring the Lost Constitution: The Presumption of Liberty." A longer version of this article originally appeared in the Wall Street Journal.
Wall Street Journal: The Case for a Federalism Amendment
Randy Barnett: "Restoring the Lost Constitution: The Presumption of Liberty"