14 Pages Posted: 4 Aug 2011
Date Written: August 3, 2011
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 grâce, Obamacare.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 summer of 1787. This essay will explore the major themes of these calls for constitutional amendments and conventions, who is behind them, what problems they seek to solve, and their likelihood of success.
Suggested Citation: Suggested Citation
Foley, Elizabeth Price, Sovereignty, Rebalanced: The Tea Party and Constitutional Amendments (August 3, 2011). Tennessee Law Review, Vol. 78, p. 751, 2011. Available at SSRN: https://ssrn.com/abstract=1904656