A commenter raises the perennial question of whether it is possible to interpret the commerce clause in a way that would allow us to argue that, say, the enforcement of drug laws against individuals growing under a state license would be unconstitutional without undermining other New Deal programs or the centerpiece of the Obama administration’s first term, even though applying such logic would seem to. Well, I have a solution! In keeping with the true spirit that almost always animates invocations of federalism, I believe that these amendments harken back to the golden age of the true sage of federalism, John Calhoun. (The older Calhoun, I mean, the one who came to believe that the federal government would not reliably advance the slave power and hence abandoned his fervent nationalism. The earlier Calhoun was the kind of liberal fascist who would pass a law that stuffed broccoli down your throat.) These two amendments will permanently clarify the Tenth Amendment and the Supremacy Clause, and will empower good people to do good things while preventing bad people from doing bad things, so I assume we can all agree to support them:
AMENDMENT I. The government of the United States shall have the power to pass any law necessary and proper to the regulation of the national economy or that addresses a problem that the several states lack the capacity to address individually. Unless the application of these powers produces a policy outcome that Scott Lemieux finds undesirable, in which case this law shall be deemed a violation of the Sacred Principles of States’ Rights.
AMENDMENT II. In cases of a conflict between state and federal law, the law embodying the policy outcome that Scott Lemieux finds more desirable shall take precedence over the other.