Sovereignty, Rebalanced: The Tea Party & Constitutional Amendments
![handle is hein.journals/tenn78 and id is 757 raw text is: SOVEREIGNTY, REBALANCED:
THE TEA PARTY & CONSTITUTIONAL
AMENDMENTS
ELIZABETH PRICE FOLEY*
[E]xperience hath shewn, that even under the best forms, those
entrusted with power have, in time, and by slow operations, perverted it
into tyranny. . . . -Thomas Jefferson'
Jefferson's words ring true today. Arguably since the Marshall Court
and undoubtedly since the New Deal, the U.S. Constitution has been
subverted to the point where its original meaning has been substantially lost
inside a tangled knot of Supreme Court case law. Like termites eating away
at the constitutional architecture, Supreme Court interpretations of
provisions such as the Commerce Clause, taxing and spending power,
Privileges or Immunities Clause, Ninth Amendment, Tenth Amendment,
and Eleventh Amendment have so rotted them that they no longer serve the
critical functions originally envisioned.
One of the most pervasive themes in this journey into constitutional
Wonderland-where constitutional law professors teach at least six
impossible things before breakfast-is the loss of vertical separation of
powers, or federalism. Year after year, the drumbeat of expanding federal
power grows louder, drowning out objections and concerns voiced by the
states. The noise has recently reached a fevered pitch, fueled by actions of
the Obama Administration: massive industry bailouts overloaded with
federal strings, mind-numbing trillion-dollar stimulus programs laden with
earmarks, aggressive use of federal powers to shut down states' efforts to
fight illegal immigration, and, the coup de grdce, Obamacare.2
The six-million-dollar question is how to untangle this constitutional
Gordian knot. The most intriguing proposals call for specific constitutional
amendments or a constitutional convention, the latter of which has not
occurred since the grand convention in Philadelphia that fateful, hot
Institute for Justice Chair in Constitutional Litigation and Professor of Law,
Florida International University College of Law. Professor Foley is the author of LIBERTY
FOR ALL: RECLAIMING INDIVIDUAL PRIVACY IN A NEW ERA OF PUBLIC MORALITY (2006) and
THE LAW OF LIFE AND DEATH (2011). She is currently working on a book about the Tea
Party that will be published by Cambridge University Press in early 2012.
1. Thomas Jefferson, A Bill for the More General Diffusion of Knowledge, in 2 THE
WORKS OF THOMAS JEFFERSON 414 (Paul Leicester Ford ed., 1904).
2. See generally THE HERITAGE FOUND., Federal Budget and Spending, ISSUES 2010:
THE CANDIDATE'S BRIEFING BOOK 39-43 (2010), http://issues20l0.com/pdf/FullPDF.pdf;
Jackie Calmes, Obama to Seek Spending Freeze to Trim Deficits, N.Y. TIMES, Jan. 26, 2010,
at 1.
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Sovereignty, Rebalanced: The Tea Party & Constitutional Amendments
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