The Bill of Federalism: Amendment #6

In a very important sense, the sixth proposed amendment of the Bill of Federalism is compensation for the change brought about by the Seventeenth Amendment to the US Constitution, which provided for the direct election of Senators, when they had previously been chosen by state legislatures.

Now, as a resident of the state of Rhode Island and an observer of its politics, I am definitely NOT in favor of repealing the Seventeenth Amendment.

However, it must be noted that passage of the Seventeenth Amendment dissolved the only direct check that States had on the power of the Federal government. Given this fact, should we be surprised that the power of the Federal government has grown at the expense of the states?

In order to remedy this problem, the sixth proposed Federalism amendment would create a new mechanism that allows states to check Federal action…

Upon the identically worded resolutions of the legislatures of three quarters of the states, any law or regulation of the United States, identified with specificity, is thereby rescinded.

Professor Randy Barnett of the Georgetown University Law School and author of the Bill of Federalsim offers this rationale for the sixth proposed amendment…

At present, the only way for states to contest a federal law or regulation is to seek an amendment to the Constitution by applying for a constitutional convention to propose amendments that must then be ratified by three-quarters of the states. This proposed amendment provides an additional check on federal power by empowering the same number of states to rescind any law or regulation when they concur it is necessary. Such a power provides a targeted method to reverse particular Congressional acts and administrative regulations without the risk of permanently amending the text of the Constitution.

Links to earlier proposed amendments are below the fold…

• Article V: Reaffirming the freedom of expression
• Article IV: Treaties are not a basis for governing within the US until their provisions are explicitly written to law
• Article III: Limits on unfunded mandates and on conditions applied to Federal disbursements to states
• Article II: Limiting Federal Powers under the Interstate Commerce Clause
• Aritcle I: Reconstituting the Taxing Power of the Federal Government