I’ve been thinking for a long time about how there ought to be a constitutional amendment to restore federalism and establish proper jurisprudence. Randy Barnett, in a piece for the Wall Street Journal, goes one step further and proposes actual text, and a strategy for getting it adopted:
Section 1: Congress shall have power to regulate or prohibit any activity between one state and another, or with foreign nations, provided that no regulation or prohibition shall infringe any enumerated or unenumerated right, privilege or immunity recognized by this Constitution.
Section 2: Nothing in this article, or the eighth section of article I, shall be construed to authorize Congress to regulate or prohibit any activity that takes place wholly within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress may define and punish offenses constituting acts of war or violent insurrection against the United States.
Section 3: The power of Congress to appropriate any funds shall be limited to carrying into execution the powers enumerated by this Constitution and vested in the government of the United States, or in any department or officer thereof; or to satisfy any current obligation of the United States to any person living at the time of the ratification of this article.
Section 4: The 16th article of amendment to the Constitution of the United States is hereby repealed, effective five years from the date of the ratification of this article.
Section 5: The judicial power of the United States to enforce this article includes but is not limited to the power to nullify any prohibition or unreasonable regulation of a rightful exercise of liberty. The words of this article, and any other provision of this Constitution, shall be interpreted according to their public meaning at the time of their enactment.
One very clever thing about this proposal is section 1, which actually expands federal power to grant it much of what is has already claimed. The power to regulate interstate commerce has been read expansively to constitute the power to regulate interstate anything, and a lot of important legislation (some of it even worthy) is based on that power. By explicitly giving the federal government such power, it removes one major pressure on the courts to do violence to the Constitution.
Sections 2 and 3 remove powers the federal government was never supposed to have (but explicitly allow it to continue paying social security and the like), and section 5 states that the Constitution means exactly what it says. I suspect that repealing the income tax (section 4) is a bridge too far, but it’s worthwhile as a starting point.
I think the biggest blunder in the framing of the Constitution was its failure to enumerate the federal government’s interstate commerce powers. By giving it a blanket power to regulate interstate commerce, it opened the door for most of the mischief the government practices today. If I could go back in time to the convention, that is what I would try to fix. But given where we are today, Barnett’s proposal is the best I’ve seen.