The Bill of Federalism: I received a deluge of feedback on my WSJ column, The Case for a Federalism Amendment. The overwhelming response was positive--indeed enthusiastic--but some took issue with aspects of my proposal with well founded objections. Many also had their own favorite provisions they wanted to see included. And there were also objections to the wisdom of the entire project of seeking constitutional changes through the states.

This feedback caused me to reconsider (a) the substance of some aspects of my proposal, (b) whether it might not be a better idea to disaggregate it into constituent parts while (c) adding provisions favored by others.

The result is a tentative draft of a Bill of Federalism with 10 amendments, along with a Preamble and explanation of each provision. I discuss the strategy behind this initiative and proposal on PJTV here. In particular, I address objections to asking states to petition for a convention to propose constitutional amendments, and the advantages of a Bill of Federalism over a single amendment with multiple interrelated parts.

A website has been created to collect comments, some of which are very useful. I intend to rewrite the proposal soon, and make substantial revisions to it. If you want to provide your comments, you can do so here. (Comments are moderated so there will be a delay in their posting.) I encourage anyone with comments or objections to post them on, where others can read them too. What follows are the first draft of the amendments with my explanations in hidden text.

Let me stress once again that THIS PROPOSAL WILL CHANGE SUBSTANTIALLY. Some provisions will be deleted, combined, or altered, and others added.
Resolution for Congress to Convene a Convention to Propose Amendments Constituting a Bill of Federalism

Whereas Article I of the Constitution of the United States begins "All legislative powers herein granted shall be vested in a Congress of the United States"; and

Whereas the Congress of the United States has exceeded the legislative powers granted in the Constitution thereby usurping the powers that are "reserved to the states respectively, or to the people" as the Tenth Amendment affirms; and

Whereas the Supreme Court of the United States has ignored the meaning of the Constitution by upholding this usurpation of the powers of the several states and of the people;

To restore a proper balance between the powers of Congress and those of the several States, and to prevent the denial or disparagement of the rights retained by the people to which the Ninth Amendment refers, the legislature of the State of ________ hereby resolves that:

Congress shall call a convention to propose the following articles be added as separate amendments to the Constitution of the United States, each of which shall be valid to all intents and purposes as part of the Constitution when separately ratified by the legislatures of three-fourths of the several States:

[The Bill of Federalism]

Article [of Amendment 1] — [Limits of Federal Power]
Congress shall make no law nor delegate any authority, pursuant to its powers in the eighth section of article I, respecting any activity confined within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress has power to reasonably regulate pollution between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.
Article [of Amendment 2] — [Unfunded Mandates and Conditions on Spending]
The legislative power shall not be construed to allow Congress to impose upon a State, or political subdivision thereof, an obligation or duty to make expenditures unless such expenditures shall be fully reimbursed by the United States; nor shall the legislative power be construed to allow Congress to place any condition on the expenditure or receipt of appropriated funds unless the requirement imposed by the condition would be within its power if enacted as a regulation.
Article [of Amendment 3] — [Reserved Powers of States]
Subject to the requirements of Article VI, every state has the power to regulate or prohibit any activity that takes place within its borders, provided that no state regulation or prohibition shall infringe any enumerated or unenumerated right, liberty, privilege or immunity recognized by this Constitution.
Article [of Amendment 4] — [Recision Power of States]
Upon application of the legislatures of two thirds of the states, any law, regulation or order of the United States shall be rescinded.
Article [of Amendment 5] — [No Federal Death Tax]
Congress shall have no power to lay and collect taxes upon personal gifts or estates.
Article [of Amendment 6] — [No Federal Income Tax]
The sixteenth article of amendment to the Constitution of the United States is hereby repealed, and Congress shall have no power to lay and collect taxes upon personal incomes, consumption or expenditures, but nothing in the Constitution shall be construed to deny Congress the power to lay and collect an excise or sales tax that is uniform throughout the United States. This article shall be effective five years from the date of its ratification.
Article [of Amendment 7] — [Term Limits for U.S. Senators and Representatives]
Section 1. No p
erson who has been elected or served for a full term to the Senate two times shall be eligible for election or appointment to the Senate. No person who has been elected for a full term to the House of Representatives six times shall be eligible for election to the House of Representatives.
Section 2. No person who has served as a Senator for more than three years of a term to which some other person was elected or appointed shall subsequently be eligible for election to the Senate more than once. No person who has served as a Representative for more than one year shall subsequently be eligible for election to the House of Representatives more than five times.
Section 3. No election or service occurring before this article becomes operative shall be taken into account when determining eligibility for election under this article.
Article [of Amendment 8] — [Balanced Budget Veto]
Section 1. For purposes of this article, the budget of the United States for any given fiscal year shall be deemed unbalanced whenever the total amount of the debt of the United States held by the public at the close of such fiscal year is greater than the total amount of the debt of the United States held by the public at the close of the preceding fiscal year.
Section 2. If the budget of the United States is unbalanced for any given fiscal year, the President may separately approve, reduce or disapprove any monetary amounts in any legislation that appropriates or authorizes the appropriation of any money drawn from the Treasury, other than money for the operation of the Congress and judiciary of the United States, and which is presented to the President during the next annual session of Congress.
Section 3. Any legislation that the President approves with changes pursuant to section 2 of this article shall become law as modified. The President shall return with objections those portions of the legislation containing reduced or disapproved monetary amounts to the House where such legislation originated, which may then, in the manner prescribed under section 7 of Article I for bills disapproved by the President, separately reconsider those reduced or disapproved monetary amounts.
Section 4. The Congress shall have the power to implement this article by appropriate legislation.
Section 5. This article shall take effect on the first day of the next annual session of Congress following its ratification.
Article [of Amendment 9] — [Protecting the Rights Retained by the People]
The rights of citizens of the United States include all the enumerated and unenumerated liberties, and privileges recognized by this Constitution. Nothing in this constitution shall be construed to create any conclusive or irrebuttable presumption that a law, regulation, or order of the United States or of a State does not infringe such rights. In any case or controversy in which an abridgment of such rights is alleged, no party shall be denied the opportunity to introduce evidence or otherwise show that a law, regulation or order is an unreasonable restriction on such rights and therefore is unconstitutional.
Article [of Amendment 10] — [No Judicial Alterations of the Constitution]
The words and phrases of this Constitution shall be interpreted according to their meaning at the time of their enactment, which meaning shall remain the same until changed pursuant to Article V.

The Value of Petitioning for and Article V Amendments Conventions: A new paper by Indiana University-Indianapolis law professor Gerard Magliocca, who blogs over at Concurring Opinions, contends that Article V petitions for a convention to propose constitutional amendments is a useful means to achieve reform by affecting the behavior of Congress and the courts. You can download it from SSRN here. It is entitled, State Calls for an Article Five Convention: Mobilization and Interpretation. Here is the syllabus:
This Essay argues that those seeking constitutional change ought to take a closer look at using the Article Five procedure by which state legislatures can petition Congress for a new constitutional convention. While the chances that such a conclave will occur are slim and none, the process for calling together such a body is a useful tool for getting voters to the polls and influencing the Supreme Court. After looking at some historical examples, the Essay points out that both parties are using state ballot initiatives to increase turnout at election time and that doing the same with Article Five petitions would increase the quality and quantity of citizen participation. Furthermore, a series of such petitions would constitute persuasive authority of contemporary constitutional values no different from the state legislation that the Justices look to in cases under the Eighth Amendment and the Due Process Clause.
Here is the structure of the paper:
Part I reviews prior attempts to use the Article Five petition procedure and shows that, when enough state legislatures join the cause, Congress almost always provides a remedy to halt the march to a convention. Part II looks at how putting federal constitutional issues before the voters in state elections can increase the quality and quantity of citizen participation. Part III explains why a critical mass of state petitions should be taken into account by courts when they are faced with related constitutional issues.

Related Posts (on one page):

  1. The Value of Petitioning for and Article V Amendments Conventions:
  2. The Bill of Federalism:

ON PJTV, I talk with Glenn Reynolds about changes being made to the “Bill of Federalism.”


I continue to make major revisions to the proposal and, by next week, hope to have a revised version posted for further comments on