August 5, 2009
Introducing the Bill of Federalism to Rhode Island
Forget your wimpy resolutions reaffirming the Tenth Amendment; Professor Randy Barnett of Georgetown Law School has a much stronger suggestion for you.
Professor Barnett has proposed recalibrating the relationship between the Federal Government and the states -- and more importantly, between the Federal government and the people -- that has drifted over time towards ever-increasing Federal power through a set of 10 amendments to the US Constitution that he has labeled a "Bill of Federalism".
Remember, according to Article V of the Federal Constitution, the amendment process can originate in the state legislatures…
The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof,…so for the same scale of time and effort that would be involved in getting a 10th amendment resolution passed, it would be possible involve a state in the more decisive action of amending the Constitution.
For each of the next 10 days, I'll post one of the proposed Federalism Amendments, and invite commentary, pro or con.
The First amendment of the Bill of Federalism would redefine the taxing power of the Federal Government…
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.This is probably the most radical amendment of the group, as it proposes the biggest substantive change to how the Federal government currently operates. Professor Barnett offers the following commentary...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shall be effective five years from the date of its ratification, at which time the sixteenth Article of amendment is repealed.
The income tax has vastly increased the power and the intrusiveness of the federal government, far beyond what the framers of the Sixteenth Amendment ever imagined. The first proposed amendment restores the original taxing power of Congress by denying it the power to enact income estate or gift taxes, or to circumvent this restriction by levying an annual tax on net consumption or expenditures. Lest the prohibition on an aggregate consumption tax raises any doubt, the provision makes clear that Congress retains the power to impose a sales tax that is uniform. Sometimes called a "fair tax," a national sales tax would be paid by all persons residing in the United States, whether legally or illegally, without the need for intrusive reporting of their activities. As people buy and consume more, they would pay more in taxes, but all their savings and investments would appreciate free of tax. To give Congress ample time to fashion an alternative revenue system (and do away with the IRS) the implementation of this amendment is delayed for five years. Of course, Congress may end the income or estate tax sooner if it so chooses.Is this a good idea? And if you think it is, do think it's so good that it belongs in the first slot?
"Professor Barnett has proposed recalibrating the relationship between the Federal Government and the states"
Lest we forget, this has been done once before, it was called the "Civil War". Aside from the issue of slavery, one of the issues decided was the supremacy of the Federal Government. No one has really argued it since. Before it was the "War to end Slavery", it was called the "War to preserve the Union". Read a monument to the war from before about 1910.
More than the Income Tax, I think "Federal Funds" have purchased the rights of the states. The will of the states is easily bent by a simple threat "we'll withhold your Highway Funds". In short, I don't think that "States Rights" have been taken away, they have been "sold".
There has been talk of states withholding federal taxes and applying them for their own purposes, that might be a way to buy back "States Rights". The old cry of "I paid mine, they should pay theirs" always seems to prevail in tax discussions. We could have another Civil War. If the taxpayers in Minnesota were made to realize that they had paid for the Newport Ferry for several years, I don't think that would sit well.
Posted by: Warrington Faust at August 5, 2009 12:32 PMWarrington,
The Civil War and the Constitutional Amendments that followed certainly played a large and sudden (on a historical time-scale) role in redefining the relationship between the Federal Government and the states, but there have been other influences too. I don't want to overload the conversation right away, but if you take a peak ahead at the other Amendments proposed by Prof. Barnett, I think you'll see that they address some issues outside of the scope of changes originating in the 1860s. (In particular, I think Friday will be the day for a discussion of the relevant issues you raise about conditions for Federal funds).
This is the amendment I think I’m most on-the-fence on, but it may be just a small-c conservative fear on my part of not knowing the consequences of changing a large, entrenched way of doing things. On the other hand, if some people think the government can take over health care, I supposed they could take over the IRS too, or something like that…
What does this line mean? "and shall separately be presented to the President of the United States." It's not at all clear what the intent or purpose of it is.
Posted by: BobN at August 5, 2009 5:54 PMWhat does this line mean? "and shall separately be presented to the President of the United States." It's not at all clear what the intent or purpose of it is.
I think the purpose is to create a "line item veto", which the President does not have. In other words, if the tax bills were lumped together or other wise joined with other bills, the President would have to veto "all, or nothing".
Posted by: Warrington Faust at August 5, 2009 6:45 PMI read the separate-presentation section the same way Warrington does.
Posted by: Andrew at August 5, 2009 7:03 PM(In particular, I think Friday will be the day for a discussion of the relevant issues you raise about conditions for Federal funds).
Friday? Have I missed something?
Posted by: Warrington Faust at August 5, 2009 10:52 PMA proposed-amendment-a-day, for the next 10 weekdays!
Check back tomorrow, around noon, for the second of Prof. Barnett's proposed amendments.
One thing that must be remembered in all of this is that the professor said the purpose of his amendment proposal was to "scare" Congress into passing it by the threat of an Article V Convention.
Problem is, Congress can't be scared because the two thirds threshold the Constitution speaks of has long since been reached. All 50 states have submitted 750 applications for a convention. They can be read at www.foavc.org. All the Constitution requires is 34 applications.
Moreover many of the ideas the professor advocates have already been proposed by the states and in some cases in such numbers as to be sufficient for causing a convention call on their own number.
Posted by: Bill Walker at August 6, 2009 10:52 AM