…state legislatures have a real power under the Constitution by which to resist the growth of federal power: They can petition Congress for a convention to propose amendments to the Constitution.
Barnett’s prescriptions, the content of the Amendments he proposes, are different from mine, which is both well and inevitable; we have different backgrounds and different prejudices. Some of his ideas strike me as foolish — the income tax, to me, is not a basic enough problem to warrant inclusion in the effort, and an attempt to abolish it would strike to the heart of the self-interest of enough people to attract strong opposition to the whole enterprise. If I were to seek to modify it, my suggestion would be that taxes falling under the definition of “head”, “capitation”, or “income” enacted by the Congress should be collected by the States, and the proceeds forwarded to the Treasury, after deduction of administrative costs, with strict accounting made public. I’ve not thought out the wording of such a provision; perhaps you could help. It would require that the States not have any hand in the specification of the tax, only in collecting it according to Law passed by the Congress.
My interest is in the procedure for getting Amendments passed, and here Barnett and I agree fairly well, although he points out something I had forgotten:
It was the looming threat of state petitions calling for a convention to provide for the direct election of U.S. senators that induced a reluctant Congress to propose the 17th Amendment, which did just that.
That is, a credible threat on the part of the State Legislatures might move the Congress to do the right thing. Alas, in this case I think not so. The 17th Amendment did not, after all, reduce the powers, privileges, and perquisites of the Congress, and arguably it increased them — certainly it had the effect of making the Senate almost totally independent of State direction, whether its original proponents intended that or not.
What I would like is to limit the powers of Congress to something more nearly approximating what I consider the intent of the Founders to have been, and the likelihood of Congress itself enacting any such limit, even under threat, is nil or worse. The procedure I propose is to pitch the matter to State Legislators as a reclamation of power from a greedy Federal Government running roughshod over their powers, privileges, and perquisites; select Amendments to include in the proposal that have the effect of giving the State Legislators power at the expense of the Congress, or plausibly take power from the Congress and award it to no one; put it in such a way that the Congress has no choice but to comply if its members wish to retain any legitimacy; and hem the proposal about with restrictions that make it less likely the resulting Convention would go off the rails.
Done that way, it can be made to appeal to the vanity, cupidity, and self-interest of the State Legislators to whom the actual proposals will be made, and who must follow through with them if anything is to be accomplished. Like any sane person, I would strongly prefer that vanity, cupidity, and self-interest be banished from the political process, but, like anyone who pays even minimal attention, I reckon that the possibility of that is even smaller than the likelihood the Congress would voluntarily yield power. People who lack vanity, cupidity, and self-interest do not enter politics in the first place, so it is useless to search for them there and madness to count on them for success.
Commenter I Callahan, elsewhere, notes a rock in the road:
Unfortunately, state legislators want to become federal legislators. It’s essentially the farm system for congress.
But does it really have to be? If the powers of the States are increased vis-a-vis those of the Congress, might there not be enough Legislators in the States who either do not care for, or don’t see a reasonable probability of, promotion to the national stage to get something useful through? It is a question that cannot be answered until the experiment is made.