Proposal for Constitutional amendment

Vanity

[y2gordo]

Laying in bed unable to sleep last night, my mind drifted to the problem of too much federal power in the country today. Well, the federal government is able to exercise its excessive power in part due to its ability to compel the states to enact certain laws by withholding or restricting federal funding if the states enact laws that do not comply with federal “guidelines”. The primary examples I thought of were the mandatory drinking age of 21 and the required drunk driving BAC of .08. If I am not mistaken, if a state does not follow those guidelines, then the federal government can withhold or restrict federal highway money to the state. (Please correct me if I am wrong, but even if I am, this kind of thing goes on frequently today.)

Now, I am not in favor of kids drinking or people drinking and driving, but I do think it is within the Constitutional rights of the state to decide at what age or at what BAC levels those acts should be considered crimes. We can send kids off to war who cannot legally have a beer before they go off to potentially die, and different people react differently to BAC in the .08 to .15 range. (If you disagree with the latter, that's fine. This post isn't meant to discuss the technicalities of drunk driving, just the way those laws are enacted by the states.)

The issue of state sovereignty has always been rather vague constitutionally, but up until now it was generally assumed that the states could enact the laws they desired so long as those laws did not infringe on its residents’ overall constitutional protections. However, we have reached a point where I think it is time to clarify that a bit more since we are coming up against some major attacks on the constitutional rights of the states and their citizens (health care, gun control, etc.).

Now, there are two ways to combat this attack and mend the damage done over the past 80 years. The first would be to push laws through Congress that would clarify the states’ rights to permit or allow various behaviors. However, those laws would probably be somewhat narrow in scope, and it would require getting full control of both houses of Congress and the Presidency. By the time that is possible, it may be too late.

However, the other way to do this would be to amend the Constitution itself. Yes, it requires two-thirds of both Houses plus three-fourths of the states (37, if my math is correct). However, I think it is a much more attainable goal for the additional reason that, if my understanding of the process is correct, amending the Constitution does not need the approval or signature of the President (nor can the President veto an amendment).

So here's what I thought of, and I would like to hear comments from legal people on this since the wording would be absolutely essential:

"Congress shall make no law which permits or restricts federal funding of a state based on the laws enacted by that state excepting where those laws violate other clauses and amendments of the Constitution."

What I am trying to get at is an amendment which guarantees equal protection for the states, while still adhering them to the U.S. Constitution. It would allow states to decide for themselves what they will and will not allow within their borders without fear of retribution from the federal government. I don't know if mentioning federal funding is the right wording, since I don't really like the idea of most federal funding in the first place, but it was what came to mind when I thought of this. (In other words, I’m looking for a term which isn’t restrictive to just federal funds.)

I am also trying to find wording that further establishes that the power of the federal government stems from the states, not the other way around. It would be a very subtle change in words, but I haven't quite come up with it yet. After I've gotten out of class and had a nap, I'll try to get closer to the right wording, but I would love to hear ideas on this matter.

In any case, I think it would be a popular amendment among enough of the states that it would stand a decent chance of passing through the process. It would certainly be popular in places like Montana and Texas, though I think a state like Texas would just assume not get any federal money anyway if possible (which is why I want to find a more general way to word this that doesn't specifically mention cash payments from the feds). States like Vermont and Washington could also get on board as well. Basically, my goal with this amendment is to start the process of getting states back to being individual entities coming together around the federal government and not, as is increasingly occurring today, being merely political districts of the federal government.

Anyway, just had the thought while tossing and turning and thought it was good enough to mention on here for public consumption.

[ClearCase_guy]

I’d rather just get rid of the 17th amendment. Let senators be chosen by the state legislature (rather than by popular vote) and the Senate will end up supporting the interest of their state. That’s what you’re looking for, right?

[Sharkfish]

Gordo, I too have struggled to understand the erosion of state sovereignty as intended by the founders. I do know that the U.S. Supreme Court did consider the issue of the withholding of highway funds based on a state's drinking age. The decision upholding the law basically turned on an esoteric argument that driving is a privilege not a right, or some other such BS. I no longer practice law, but in law school, my professors could not rationally support the supremes decision.

You should also look at various web sites and organizations supporting a renewed commitment to the 10th Amendment. The discussion on those sites is compelling. Start with http://www.tenthamendmentcenter.com/.

The 10th amendment has often been cited as a basis to challenge Obamacare, but given the vast expansion of the Commerce Clause and even something called the "Dormant Commerce Clause" and the "Necessary and Proper" clause, Supreme Court precedent is not favorable.

[GOP_Party_Animal]

Just enforce the 10th Amendment.

[ExGeeEye]

The federal government shouldn't be funding the States period...especially since it has no real money with which to do so until they extort it from the States, or the People, first.

Rather, the States should fund the federal government for the purposes outlined in the Constitution, and no others. Any other stuff the State governments want to do, they may do within their borders.

[Bean Counter]

If we want to talk about amending the Constitution, let’s talk about doing it right...

“In the three years following the elections, nine constitutional amendments were ratified by the state legislatures in rapid succession. The Document went through some major changes.

The 27th Amendment granted blanket immunity from prosecution for any crimes committed before or during the Second Civil War to anyone who actively fought for the resistance.

The 28th Amendment repealed the 14th and 26th Amendments. It also made full state Citizenship a right of birth, only applicable to native-born Citizens who were the children of Citizens. It allowed immigrants to buy state citizenship. It clarified “United States Citizenship” as only having effect when state Citizens traveled outside the nation’s borders, and outlawed titles of nobility such as “esquire”.

The 29th Amendment banned welfare and foreign aid, removed the United States from the UN and most foreign treaties, capped Federal spending at 2 percent of GDP, capped the combined number of foreign troops in the fifty states and on Federal territory at one thousand men, and limited the active duty Federal military to a hundred thousand men, except in time of declared war.

The 30th Amendment amplified the 2nd Amendment, confirming it as both an unalienable individual right and as a state right, repealed the existing Federal gun-control laws, preempted any present or future state gun-control laws, and reinstituted a decentralized militia system.

The 31st Amendment repealed the 16th Amendment, and severely limited the ability of the Federal government to collect any taxes within the 50 states. Henceforth, the Federal government’s budget could be funded only by tariffs, import duties, and bonds.

The 32nd Amendment outlawed deficit spending, put the new United States currency back on a bimetallic gold and silver standard, and made all currency “redeemable on demand”.

The 33rd Amendment froze salaries at six thousand dollars a year for House members and ten thousand for Senators, limited campaign spending for any federal office to five thousand per term, and repealed the 17th Amendment, returning Senators to election by their state legislatures.

The 34th Amendment restored the pre-Erie Railroad v. Thompkins system of Common Law, invalidated most Federal court decisions since 1932, and clarified the inapplicability of most Federal statutes on state Citizens in several states.

The 35th Amendment reinstated the allodial land-title system. Under a renewed Federal Land Patent system the amendment mandated the return of 92 percent of the Federal lands to private ownership through public sales at one dollar in silver coin per acre.

The nation’s economy was slowly restored. But with the nine new amendments, the scope of government- both state and Federal- was greatly reduced from its pre-Crunch proportions. Small government was almost universally seen as good government. For the first time since before the First Civil War, it became the norm to again refer to the nation plurally as “these United States”, rather than singularly as “The United States”. the change was subtle, but profound”

“Patriots”, by James Wesley Rawles, “The Amendments” pp 381-382

Good Food for Thought...buy the book.

[y2gordo]

My only problem with eliminating the 17th amendment is that I don't know if we could get past the media's portrayal of that as being an effect to take democracy away from the people. I agree with the notion that state legislatures choosing the senators is a better way to represent the states’ desires than the current system, but I don't see it being a practical solution at this time.

[Scotsman will be Free]

Until such a time as we rein in the federal judiciary, any amending would be a wasted effort.

[y2gordo]

And this is precisely why I think we need a new amendment to clarify the meaning of the 10th amendment. The Commerce clause and the 10th amendment being so vague, I think it would be helpful to establish a clearer guideline for establishing states’ sovereignty.

Simply renewing a commitment to or better enforcing the 10th amendment will take too long since the courts are so overly dominated by progressives/liberals. I also fear it wouldn't be a lasting solution since it would require the constant, active drive of the people to maintain it. People and generations can be prone to be lazy, and an amendment might help to protect the country in those times.

[Little Ray]

Ummmm, where in the Constitution does it say that Feds can “fund” a State a state at all?

[y2gordo]

I agree, which is why I am trying to find wording that doesn’t specifically mention “federal funding”. Other steps, such as the repeal of the income tax, can be taken later. I’m just trying to think of an amendment to propose now that could be passed immediately (relatively speaking) to combat the damage that this administration and Congress (and future similar ones) are doing to the country.

[y2gordo]

lol, it doesn't. I was thinking of federal highway money when the idea popped in. Like I said, it's a wording in progress.

[y2gordo]

Reigning in the judiciary is a task that must be undertaken anyway, but I think clear enough wording could combat the current state of the judiciary enough to give the states some breathing room.

[piroque]

Let's simplify that amendment , "Congress shall make no law"

[Scotsman will be Free]

I don’t know. They are so good at conjuring up things that don’t exist in the Constitution or coming to some weird understanding totally contrary to the plain english in the Constitution.

[ClearCase_guy]

Excellent list. I’ve seen you post it before, and I just wanted to say that it is the reason I picked up “Patriots” and read it. A very fine book. I recommend it to all — and “Unintended Consequences” by John Ross. of course.

[MosesKnows]

but I don't see it being a practical solution at this time

It is the correct first step. The amendment process is not a simple one but that should not discourage one from trying.

What we think, or what we know, or what we believe is, in the end, of little consequence. The only consequence is what we do. John Ruskin

Nobody made a greater mistake than he who did nothing because he could do only a little. Edmund Burke

[Bean Counter]

Yah, I’ve put that up a couple of times in the past few months whenever I see a CA thread; and I’m amazed at how little comment it generates. Granted you have to do some digging to find out exactly what these Amendments are talking about, along with what the hell it was that brought them about...

It may come to something like this some day here. I hate to think that’s possible, but I am one of the people who has been taking the repeated warnings to “prepare” seriously for quite some time. Thirteen Thousand Billion Dollars of fiat money makes the possibility of an economic collapse all too real.

I’m not building my own private militia ala “Patriots”, but I assure you if that time comes I’ll show up with something besides my dick in my hand...

[DNME]

Agreed. And thanks to Bean Counter for that superb post!

The Constitution most certainly needs some fine-tuning, particularly the Commerce Clause and a reconsideration of the 16th and 17th amendments. (There are other changes needed but I’ll leave them to our ConLaw scholars.)

The amendment process is what makes the Constitution a “living document” and not the weathervane whims of activist judges. We can change it, and we should change it when the need arises, which now seems to be the case.

I’d like to see all sorts of amendments proposed, to make corrections and clarifications. If the people don’t want these amendments, the measures can be easily killed by the three-quarters state vote requirement. If nothing else it would get people thinking about the Constitution and how it affects us.

I expect Congress to battle tooth and nail against many of these corrections (unless we REALLY clean house in November) so give some serious thought to calling a Constitutional Convention, so we can ram the changes down THEIR throats for a change!

As for the “dangers” of a Constitutional Convention, I’m not really worried. I can’t think of anybody with the brains or the stones to try and rewrite the Constitution. (And the required ratification by the states would keep any radical ideas from becoming law, in any case.) The Founders wisely added the Constitutional Convention for exactly the problem we now have — An out-of-control Congress and a government at the edge of tyranny!

So yeah, I’m all in favor of making amendments! Bring ‘em on and let’s start the discussions!