936                                    ARIZONA LAW REVIEW                                   [Vol. 31


tax dollars clearly produces benefits to the states,193 the unrestrained taxing and spending by the federal government has produced a national fiscal situation that is fundamentally out of balance.194

Furthermore, because of the seventeenth amendment, the states are limited in their ability to influence senators in this matter. Since the members of both houses of Congress are now popularly elected, they can be expected to respond similarly to the political demands of national constituencies. The seventeenth amendment, in essence, abrogated the Framers original concept that the Senate act as a constitutional check over the House195 and eliminated a check that may have helped prevent the fiscal problem that we face today.




Presently, the states face a formidable challenge in trying to maintain some level of autonomy.196 Now, they must act in a political environment where the federal government is far more influential and pervasive197 and is fiscally unrestrained.198 To attain some level of autonomy, several alternatives exist.

First, Congress could statutorily delineate the express rights and powers of the states. One author, Robert Freilich, advocates a "Statute of Federalism."199 He suggests that this statute should expressly state that no federal preemption of any field would occur without express congressional intent.200 While Freilich's approach may have some advantages, it also places the states squarely within the will of Congress by relegating the states to an "official" servile status that Congress can change at its discretion.201

A second alternative is that the states could ask for a Constitutional Convention and attempt to pass an amendment.202 Proposed amendments

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effective at the federal level, Id. at 47, even though the federal government has the ability to print money to pay off its debt. Id. at 46. One can imagine the effect on the value of the dollar and the potential to fuel inflation if the debt was paid off in this manner. Implementing the right solution for the federal government may be a challenge. Id. at 23-34. The opportunity may present itself, as the states are just two votes short of compelling Congress to call a Constitutional Convention on the subject of a balanced budget amendment. Id. at 31.

193. Garcia, 469 U.S. at 552-53.

194. STATE EXPERIENCE, supra note 185, at 1.

195. ELECTION, supra note 169, at 212.

196. Garcia, 469 U.S. at 552 (by being subject to the federal political process the argument is that the states lose their authority).

197. See generally supra discussion at notes 179-84.

198. See supra note 192.

199. Freilich, A Proposed Congressional "Statute of Federalism," 19 THE URB LAW 539, 539-49 (1987). Freilich suggests that the "Statute of Federalism" should: (1) mandate judicial interpretation that protects traditional government functions from regulation; (2) provide for tax immunities for financing instruments of states and their political subdivisions; (3) limit enforcement of grant conditions to the specific conditions that are in the accepted grant and, in particular, limit the use of direct orders, crosscutting, and crossover sanctions; (4) give political subdivisions, deemed "persons" by Section 1983 of the Civil Rights Act, full judicial redress and standing to assert rights; and (5) establish committees in the Senate and the House of Representatives to monitor any legislation that may impact the states and their political subdivisions. Id.

200. Id. at 545-46.

201. New York, 326 U.S. at 594-95 (Douglas, J.. dissenting).

202. "[O]n the application of the Legislatures of two thirds of the several States, [Congress] shall

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