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Federalism Update April 27, 2009

Posted by federalist in Federalism, Taxation.

The first assertions of state sovereignty occurred early in the history of the United States: Jefferson authored the Kentucky Resolutions and Madison wrote the Virginia Resolution. One generation later was the notable South Carolina “nullification crisis.”  In February I noted the resurgence of state sovereignty movements.  Christian Science Monitor had a good update last month.  This week Randy Barnett proposes a Constitutional “Federalism Amendment” to reign in the federal government, though I much prefer his simpler fix, which is to repeal the 16th amendment:

What sort of language would restore a healthy balance between federal and state power while protecting the liberties of the people?

One simple proposal would be to repeal the 16th Amendment enacted in 1913 that authorized a federal income tax. This single change would strike at the heart of unlimited federal power and end the costly and intrusive tax code. Congress could then replace the income tax with a “uniform” national sales or “excise” tax (as stated in Article I, section 8) that would be paid by everyone residing in the country as they consumed, and would automatically render savings and capital appreciation free of tax.



1. OverTaxed - May 3, 2009

Realistically, what are the chances that we the public could actually succeed in getting the 16th amendment repealed? And what’s the course of action that is most likely to succeed? Thanks.

2. federalist - May 7, 2009

Professor Barnett, in the essay linked above, notes that the states can effectively threaten Congress into amending the Constitution:

[S]tate 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.

Article V provides that, “on the application of the legislatures of two thirds of the several states,” Congress “shall call a convention for proposing amendments.” Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

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. Congress can then avert a convention by proposing this amendment to the states, before the number of petitions reaches two-thirds. It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.

3. federalist - June 21, 2009

Read Paul Starobin’s essay, “Divided We Stand” about the history and prospects for “devolution,” and see responses in today’s WSJ.

4. federalist - July 6, 2009

From a review of Watkins’s Reclaiming the American Revolution, which delves into the history of Kentucky and Virginia resolutions:

At the Virginia ratifying convention, Patrick Henry expressed his fear that the “necessary and proper” clause of the Constitution (which said that the federal government would have all powers “necessary and proper” to carry into effect the powers granted in Article I, Section would inevitably be interpreted by the federal government as a boundless grant of power, transforming the limited government that supporters of the Constitution promised into an unlimited government that would menace the people’s liberties. He was likewise concerned about the “general welfare” clause, since government could justify practically any action it might take by some strained reference to the general welfare.

Edmund Randolph, the leading Federalist speaker at the convention, argued that Henry’s fears were unfounded. Those phrases could not have the expansive meaning that Henry attached to them because, Randolph explained, the only powers possessed by the federal government would be those expressly conceded to it by the states. “All rights are therein declared to be completely vested in the people, unless expressly given away,” he said. “Can there be a more pointed or positive reservation?”

5. What Doomed Federalism in the United States « American Government and Economics - September 10, 2010

[…] Starobin’s intriguing essay, “Divided We Stand,” covered the history of federalism and the prospects for “devolution,” or secession and geopolitical right-sizing of the United […]

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