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There exists a strain of political thought in the United States roughly as follows:

Most of the day to day government action (ie: not national defense) should be handled by state governments. This would be better, because state governments are more democratic; each individual vote matters much more. State governments are also freer, because if any person feels especially tyrannized by the majority within a specific state, that individual can move to a state that better matches his or her values. Such an escape is much more difficult with respect to a national majority. Furthermore, state governments are still big enough to have geographic redistribution, where such things might be appropriate, like using taxes in wealthy areas to fund public schools in poorer areas.

The main barrier to such a power distribution between state and federal governments currently seems to be an interpretation of the commerce clause and elastic clause which give the federal government vast powers to regulate human action and, via the supremacy clause, prevent any state government from behaving differently.

One obvious way to empower state governments would be to amend the US Constitution to explicitly state that the commerce clause is not a blank check to regulate anything, only things explicitly related to interstate trade and that no individual state could regulate unilaterally. The elastic clause would similarly need to be amended to ensure money was only spent in accordance with explicitly enumerated constitutional powers. What is the furthest any constitutional amendment to make such changes has gotten? Which groups stopped the amendment and what was their reasoning?

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    Possibly useful: govtrack.us/congress/bills/subjects/… – Bobson Nov 4 '14 at 15:15
  • You need to clarify if the Balance Budget Amendments would qualify as a repeal / reinterpretation of the Elastic clause. In my mind they would in practice, completely in practice. It would also impede significantly the commerce clause adventurousness of Congress. – K Dog Jun 1 '18 at 19:21
  • @KDog I always thought of the balanced budget amendment as a separate issue. If you can explain how that would solve this problem, that might make a good answer. – lazarusL Jun 1 '18 at 19:23
  • I will leave it out. – K Dog Jun 1 '18 at 19:24
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    The U.S. Civil War. – ohwilleke Jun 2 '18 at 7:50
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Scope and background

In mid-2013 Mark Levin, conservative talk show host provocateur and Constitutional scholar, proposed 11 amendments through what's referred to as an Article 5 Convention of the States. Those 11 amendments include in part:

Limit the Commerce Clause to preventing states from impeding commerce and trade between the states, and specify that it does not extend to activity within states (whether or not it affects interstate commerce) or to compelling an individual to participate in commerce;

In addition, while there is no direct move to limit the Elastic Clause, there are several to limit the power of Congress and buffer the power of States including:

Require a 30-day waiting period between agreement upon the final version of any congressional bill (engrossment) and the final vote to approve it, and allow three fifths of the states to override any federal statute or any federal regulation with a cost exceeding $100 million within 24 months of passage or approval; and

Establish twelve-year term limits for members of Congress and the Supreme Court;

Repeal the 17th Amendment;

Require a federal budget to be enacted by May or impose an automatic across-the-board 5 percent cut, and the budget may not exceed total tax receipts or 17.5 percent of GDP;

Rationale

The rationale for this course of action is to rectify the imbalance of power between States (which fills the intent of the OP in spirit) and the federal government, specifically the Courts and Congress:

Levin also describes the effects of key Supreme Court decisions, including Wickard v. Filburn (1942) and the recent approval of Obamacare in NFIB v. Sebelius (2012), outlining how the Court has vastly expanded the power of both the judiciary and Congress far beyond what was intended. His account of how the Supreme Court surrendered to President Roosevelt’s threats in the 1930s and relaxed its strict adherence to the Commerce Clause, destroying the limits on the power of the federal government in the Constitution, is depressing.

Status

Mark Levin's project gained support and more or less merged with efforts of with the Citizens for Self-Governance (CSG) in 2013.

In September 2016, CSG held a simulated convention to propose amendments to the United States Constitution in Williamsburg, Virginia. An assembly of 137 delegates representing every state gathered to conduct a simulated convention. The simulated convention passed amendments relating to six topics, including requiring the states to approve any increase in the national debt, imposing term limits, restricting the scope of the Commerce Clause, limiting the power of federal regulations, requiring a supermajority to impose federal taxes and repealing the 16th Amendment, and giving the states the power to abrogate any federal law, regulation, or executive order.

As of 2018, CSG's application for a Convention of States has been passed in 12 states.

Other applications

I've reviewed the rest of the state applications and see no other references. It's very unlikely these amendments would come from the Congress.

No other proposed amendments from Congress exist either

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    "with a cost exceeding $100 million" is one of those things that sounds like a lot to the common man, but is actually minuscule for the government. The restriction would apply to virtually everything. A 3/5 majority of states is also not actually in support of the idea of elevating the importance of an individual's vote. California's Donald Trump supporters (as measured by the presidential election) alone nearly outnumber the entire populations of the six least populous states, and Texas's Hillary voters outnumber the five least populous states. – zibadawa timmy Jun 2 '18 at 4:35
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An interesting "fix" for the commerce clause is the currently unfolding with the states themselves.

As of 2018, eight states and the District of Columbia have legalized marijuana for recreational use in direct violation of federal law (specifically, the Controlled Substances Act -- which derives its authority from the commerce clause). It's unclear how this fight will play out with future administrations, but all signs point to more states following suit even though Congress has expressed no interest in amending the Controlled Substances Act, and nether the DEA nor the FDA have plans to reclassify cannabis under less restrictive drug schedules.


Another noteworthy action by a state was the Montana Firearms Freedom Act of 2009. In an act which I can only describe as a colossal middle finger to the Federal government, the MFFA specified that a firearm which is:

  • Manufactured and clearly stamped "Made in Montana" on a central metallic part, and...
  • Purchased by a Montana resident, and...
  • Carried and fired within the state of Montana...

... Is not interstate commerce under the U.S. Constitution and is therefore exempt from all federal firearms laws.

The law was struck down by the Ninth Circuit because "Congress can regulate the internal manufacture of firearms within Montana because the creation and circulation of such firearms could reasonably be expected to impact the market for firearms nationally", which is exactly the kind of interpretation that commerce clause is criticized for.

Several other states have passed similar legislation, but the Supreme Court has twice declined to hear the case.


These two cases represent direct challenges to federal authority over the interpretation of commerce clause by the states themselves. The only practical difference between them is that people are a lot more sympathetic to weed than they are to guns. Plus, a "fight" with the ATF would be more literal than a fight with the DEA.

  • The first one is neither a challenge to federal authority nor a violation of federal law. Congress has no authority to force states to regulate something, so states saying "we won't punish people for using marijuana" doesn't violate federal law. The states can't stop the federal government from enforcing federal marijuana laws, but they aren't asserting any right to do that. – cpast Jun 1 '18 at 23:57
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    @cpast; Not exactly. What's true is that local authorities cannot be deputized to enforce federal law. But states cannot interfere with federal enforcement either (that would be obstruction). Decriminalizing pot by repealing state law is far different than actually legalizing, licensing, and taxing it (which is what the states have done). Under federal law, marijuana remains classified as a schedule 1 drug; the same as heroin, cocaine, meth, etc. for which posession and use is illegal. The states are violating the Supremacy Clause. What exists right now is a détente. – Wes Sayeed Jun 2 '18 at 4:09
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    This requires a fairly broad interpretation of the OP's request. I do think these are meant as challenges to federal authority, and where weed in particular is meant to pressure federal change by mounting public opposition against the federal position (but not so much as to divest the federal government of the power to enforce it; just make it too unpopular and impractical to exercise that particular position). But the OP specifically wants (federal) constitutional amendments, not state level laws and amendments. – zibadawa timmy Jun 2 '18 at 4:39

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