Proposing a Federailsm Amendment By Threatening a Constitutional Convention

by Sal on April 23, 2009

in Law,Politics

Randy Barnett, a Constitutional Law Professor at Georgetown, had an interesting article in the Wall Street Journal that proposed a Federalism amendment to the Constitution, which would, among other things, repeal the 16th amendment (providing for the income tax) and require congress to preform only such functions that are enumerated in the Constitution.   Understanding that such an amendment would not pass in the halls of Congress, he proposes a method by which the states could pressure congress into proposing this amendment.

Barnett points out that the states have the power to petition Congress for a Constitutional Convention to propose amendments.  For this to happen, 2/3 of the states need to petition congress, at which point Congress will have no choice.  The problem of a Constitutional Convention is that it does not have boundaries, so there  is no telling what would come out of it.  What Barnett argues is that the fear of such an unpredictable convention could be used by the states to pressure Congress to propose such an amendment.

There is precedent for this.  Such a threat was used back in the early 20th century to pressure the Senate to pass the 17th amendment that provided for the direct election of senators.  While it may be far-fetched, stranger things have happened in the history of our Republic, and with the outrage being expressed at the Tea Parties, along with a movement underway by several states to reassert the 10th amendment (including the recent high-profile example of Gov. Perry (R-TX)), the possibility of the States flexing their muscles is not out of  the question.  While I don’t agree with all of the wording of the amendment, a clarifying federalism amendment that codified the original intent in plain, clear language with little ambiguity and the hindsight of modern jurisprudence would be a good thing, and a worthy goal to restoring the proper balance between the Federal government and the various states.

{ 4 comments… read them below or add one }

Tammy April 23, 2009 at 2:09 pm

This congress would love a con con. The outcome would likely change America in such a way that nobody could even imagine.


Russ N April 23, 2009 at 3:05 pm

I disagree. A con con would take the amendment process out of the hands of Congress and put it into the hands of the states. Even after the con con, it would still require approval by 3/4 of the states, or 38 of the 50 states. Congress would be threatened because they would have no say.


Tammy April 23, 2009 at 4:44 pm

We are in no position either way to risk a con con. We have no guarantee who sits at the table representing us. I am not willing to take that chance. What we do need is a return to the existing Constitution of the United States of America. It needs to be followed to the letter.


Joel S. Hirschhorn April 23, 2009 at 9:10 pm

There is an amazing amount of ignorance about the provision in the Constitution for an Article V convention. There have been over 750 applications from all 50 states for a convention, but Congress has refused for a long time to obey the Constitution, which should really anger people. Learn all the facts at and join our movement to make Congress obey the Constitution. Do not fear a convention; fear maintaining the corrupt status quo political system.


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