The Bill of Federalism
Article [of Amendment 1] — [Limits of Federal Power]Proposed Text:
Congress shall make no law nor delegate any authority, pursuant to its powers in the eighth section of article I, respecting any activity confined within a single state, regardless of its effects outside the state or whether it employs instrumentalities therefrom; but Congress has power to reasonably regulate pollution between one state and another, and to define and provide for punishment of offenses constituting acts of war or violent insurrection against the United States.
Commentary by Professor Barnett
As Congress has exercised powers beyond those delegated to it by the Constitution, the powers of states that were reserved by the enumeration of delegated powers have been usurped. The first proposed amendment restricts the power of Congress to prohibit or regulate whollyintrastate activity under the powers enumerated in Article I, Section 8, thereby leaving wholly intrastate activities to be prohibited or regulated by the several states, or be left completely free of any regulations as states may choose. And it negates two constructions adopted by the Supreme Court to expand the reach of Congress under the Necessary and Proper Clause—sometimes called the “Sweeping Clause”—of Article I: that Congress has power to regulate wholly interstate activity that either (a) “affects” interstate activity or (b) uses instrumentalities obtained from outside the state. Lest this restriction on federal power create any doubt, this amendment makes clear that Congress retains the power to regulate interstate pollution and the power to define and punish acts of war and insurrection against the United States, for example, the possession of weapons of mass destruction. This provision leaves untouched the delegated powers of Congress to regulate wholly intrastate activities to enforce civil rights as expressly authorized by, for example, the Thirteenth, Fourteenth, Fifteenth and Nineteenth Amendments; it only restricts the improper construction of the powers enumerated in Article I, section 8 to reach wholly intrastate activity.
Public Comment Section on the First Amendment of the Bill of Federalism