Limiting federal authority 0

Here, from the Wall Street Journal, is an article endorsing the idea quoted in the post below (Have they won?), that the states should curb the powers of the federal government; but setting out a more reasoned argument for how it might be done, by constitutional amendment.

For nearly a hundred years, federal power has expanded at the expense of the states—to a point where the even the wages and hours of state employees are subject to federal control. Basic health and safety regulations that were long exercised by states under their “police power” are now dominated by Washington.

The courts have similarly distorted the Constitution by inventing new constitutional rights and failing to limit governmental power as provided for in the document. The aggrandizement of judicial power has been a particularly vexing challenge, since it is inherently incapable of correction through the normal political channels.

There is a way to deter further constitutional mischief from Congress and the federal courts, and restore some semblance of the proper federal-state balance. That is to give to states—and through them the people—a greater role in the constitutional amendment process. 

The idea is simple, and is already being mooted in conservative legal circles. Today, only Congress can propose constitutional amendments—and Congress of course has little interest in proposing limits on its own power. Since the mid-19th century, no amendment has actually limited federal authority.

But what if a number of states, acting together, also could propose amendments? That has the potential to reinvigorate the states as a check on federal power. It could also return states to a more central policy-making role. …

The answer is to amend the Constitution to permit two-thirds of the states to propose amendments directly. To do so, of course, means that the states would have to first call for a constitutional convention—at which they could propose such a change.

What about the risk of a runaway convention? We think that risk is very small. In the first place, the Constitution is not the Articles of Confederation, which were ratified only six years before they were replaced.

By contrast, the American people are profoundly attached to the Constitution. It cannot and will not be replaced by an amending convention. In any event, nothing proposed at such a convention—including a change to the current amendment process—could be adopted without three-fourths of the state legislatures agreeing. …

The Framers of the U.S. Constitution never thought the balance of powers between states and the federal government would ever get so profoundly distorted. James Madison dismissed claims that the new federal government could displace the states as “chimerical fears,” assuring his readers in The Federalist Papers that “[t]he powers delegated by the proposed Constitution to the Federal Government, are few and defined. Those which are to remain in the State Governments are numerous and indefinite.” Indeed, the Framers considered a “vertical” separation of powers—between federal and state authority—just as important as guaranteeing the success of liberty as the “horizontal” separation of powers between the president, Congress and the courts.

True enough, re-establishing a proper balance—where, as Madison wrote in The Federalist Papers, Washington is responsible “principally [for] external objects” and the states for “all the objects, which, in the ordinary course of affairs, concern the lives, liberties and properties of the people”—will not be easy.

The gain will be substantial. Although it seems that permitting the states to propose amendments is a small thing, especially because ratification would still require three-fourths of the states to agree, it would shift the power calculus—and create a potential for action that the president, Congress and courts could never ignore as they consider the proper boundaries of their own authority.

Moreover, the effort to enable the states to check Washington’s power would provide a constructive outlet for much of the growing anger—specially evident in phenomena such as the “tea party” movement—toward the political elites of both parties. It is not a partisan proposal and is difficult to oppose. The purpose is to move significant authority closer to the electorate, but in a measured, “conservative” manner that is in no sense “populist.”

Opponents would have no fig leaf. They would have to openly argue that any effort to limit Washington’s reach is a bad thing. And that is an argument they are likely to lose.

Read it all here.