Randy Barnett and the Destruction of Federalism

Written by Michael Boldin on April 24, 2009 – 7:10 pm -

The king of the centralizing “libertarians” is at it again.  In a recent Wall Street Journal Op-Ed piece, Randy Barnett is now arguing that a Constitutional Convention – along with a constitutional amendment authorizing even more power to the federal government – is somehow going to raise the principles of federalism from the dead and decentralize power in this country.

Is anybody buying this stuff?

In my rebuttal at the Tenth Amendment Center, I argue – with some significant backing from people like Kevin Gutzman and Kurt Lash – that Barnett’s proposal is far from good…it’s quite dangerous.

Here’s what Professor Lash had to say:

Section 5 appears to grant courts constitutional authority to invalidate any state matter which a court perceives to be a liberty interest.

Indeed, since the amendment is to be interpreted according to today’s public meaning, Section 5 opens the door to judicial invalidation of any number of state regulations which traditionally have been left to the states, but which an individual judge or justice believes “today” should be considered a matter of individual liberty.”

Kevin Gutzman is always a joy to read, and he weighs in as well:

In explaining his proposal, [Barnett] calls this section “entirely consistent with the original meaning of the Constitution. It merely clarifies the boundary between federal and state powers, and reaffirms the power of courts to police this boundary and protect individual liberty.”

This is a blatant falsehood.

I take the position that at this point, the only way we’re going to get the federal government in check (short of eliminating it, of course!) is non-compliance.  In constitutional theory, the concept is called nullification.  Basically, all this means is that state governments should refuse to comply with federal legislation that goes beyond the limitations of the constitution.

There’s a great, real, practical example of this working quite well in just the past few years.  So read the article, I hope you’ll find it worthy of your time.


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Posted in constitution | 5 Comments »

5 Comments to “Randy Barnett and the Destruction of Federalism”

  1. James OstrowskiNo Gravatar Says:

    Exactly.

  2. James OstrowskiNo Gravatar Says:

    Randy also called for repeal of the income tax but failed to explain how to pay for that.

    Any tax cut must be paid for or else it is meaningless.

  3. Michael BoldinNo Gravatar Says:

    It’s even worse than just explaining how to pay for it. Here’s his big idea:

    “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”

    Great job, Randy. Replacing the tax with……..a tax.

  4. Patrick KreyNo Gravatar Says:

    I saw this too and thought to myself “Randy’s Ego is at it again” but I didn’t have the guts to post it because he’s such a big-wig in the libertarian movement. Kudos to you, Michael, for taking the intiative! I have to have you back on the show to discuss how terrible this idea is. I’ve heard quite a few activists mention this approach and I’m worried they might be duped into supporting it.

  5. Robert OwensNo Gravatar Says:

    Here are legal opinions of legal scholars (including two supreme court justices) to the effect that a Art. 5 Con Con is a terrible idea.

    http://files.meetup.com/684064/ScholarsOpinions.pdf

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