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Constitutional Amendment Time

I think freedom loving people need to start thinking about amending the constitution. We’re fast approaching a point where that might even be possible if people get angry enough. I’m glad to see Randy Barnett already thinking about it over at Volokh. He’s proposing an amendment hat goes like this:

The legislative power of Congress shall not be construed to include mandating, regulating, prohibiting or taxing the private health insurance of any person; nor shall the power of Congress to make all laws which are necessary and proper to regulate commerce among the several states be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.

My feeling is that a proposed amendment needs to be a very simple idea, boiled down into a few issues as possible. I also think it needs to avoid tying the issue of the day (now HCR) up into it. I would simplify it a bit:

The power of Congress to make all laws which are necessary and proper to regulate commerce among the several states shall not be construed to include the power to mandate, regulate, prohibit or tax any activity that is confined within a single state and subject to the police power thereof, regardless of the activity’s economic effects outside the state, whether it employs instrumentalities therefrom, or whether its regulation or prohibition is part of a comprehensive federal regulatory scheme.

I’d just cut the health care issue out of it. That would make the individual mandate pretty clearly unconstitutional, and leave the issue of HCR out of it. It’s probably better of people don’t think about what the effects are, because this would also weaken a lot of popular federal legislation. The other thing I might consider is that I believe it would be appropriate for federal regulation of commerce among the several states to allow Congress to prevent states from discriminating against products which met a federal standard. For instance, if Congress passes a law that suggests if you do X, Y, and Z, you can call it organic food, California can’t then come in and ban those products because they want Q, R, and X to be done too. Otherwise states could do significant damage to the interstate market in goods by creating ridiculous regulatory requirements. California is quite good at this.

Also, someone in the comments suggests we ought to amend the constitution to allow for referendums, but only on the subject of repealing laws or treaties. If it were so limited, I would agree that’s not a bad idea.

16 Responses to “Constitutional Amendment Time”

  1. bombloader says:

    You forgot the “not” in there. It currently reads the opposite of how I think intend it.

  2. Jake says:

    A good start, but it still needs work, I think. For example, your version would still allow the Feds to mandate the purchase of health insurance (or any other item) if it is sold across state lines. I’m not sure exactly how it would need to be worded to prevent that without causing other issues, though.

    Also, I think it would need to read something like “…the power to mandate, regulate, prohibit or tax any activity or good that is confined within a single state…” so that it would affect tangible goods and not just activities.

  3. Bram says:

    Let’s keep it simple and get to the root causes with 4 Amendments:

    1. Term limits for all federal pols – 3 terms for Reps, 2 for Senators.

    2. A 20-year expiration for all federal laws.

    3. A House of Repeal. A 3rd legislative body that can repeal any piece of legislation or (non-military) spending with a straight up-down vote. No committees, no filibusters, no Presidential approval needed.

    4. The Commerce Clause is hereby revoked.

  4. Sebastian says:

    I think our current constitution is fine, we just need to clarify what the commerce clause means and what it doesn’t. I’ve never been convinced that term limits will solve any problem. The idea of a sunset provision is interesting. I’d like to see a state try that. I also think you should have a provision to pass a permanent law if 3/4ths of each house agrees.

  5. Fiftycal says:

    Congress is not going to limit it’s own power, EVER. Only a Constitutional Convention, called by the states, has a chance of reigning in Congress. I propose the following series of amendments.
    * Forbid the U.S. government from participating in health care other than for Veterans
    * A requirement that the budget be balanced starting with 2012
    * Term limits
    * line item veto for the President
    * Putting a “germaness” clause so bills other than the budget could not address more than one subject

  6. Fiftycal says:

    And a 10 year term on all federal judges, including the Supreme Court.

  7. Jake says:

    “I also think you should have a provision to pass a permanent law if 3/4ths of each house agrees.”

    I don’t know that I’d go that far – it’s easier to renew a good law than it is to repeal a bad one, and a bad law can still easily get 3/4ths of each house (like the Patriot Act did).

    Personally, I’d like to see the following amendment (as brought up at LawDog’s blog, with one change).

    “Only excepting such limited protection as offered by Article One, Section Six, Congress is hereby prohibited from exempting its Members, employees, or staff from each, any, and all effects, duties or obligations rendered upon any citizen, or citizens, by any Law, Tax, or other action passed by Congress.”

    Maybe expand it to the President and the Cabinet, too. That would take care of some of this garbage before it even gets started.

  8. Arnie says:

    I have heard this before from liberals, that the Interstate Commerce Clause empowers Congress to mandate my purchase of a commercial product against my will. I can’t believe that (even with the wildest interpretation of the word “regulate”).
    Can anyone please tell me of any other commercial product Congress has been empowered to mandate the private purchase of ever in history?

    Fellows, we don’t need a new amendment. The 10th is quite sufficient. We only need to enforce IT, either through the ballot, or through the bullet. But we can NOT let this tyranny succeed! Not one inch!!!

    Arnie

  9. Ian Argent says:

    Term limits are BAD, ok? I know we all hate other people’s senators and can’t vote them out because they bring home the bacon. But unless you’re going to also BAN any and all unelected federal bureaucracy, and term-limit the congressional staff at the same time; it’s just going ot make the problem WORSE.

    Think about the BATFE for a second, and think of how much worse they could be…

  10. Billll says:

    I believe I’ve hit on an easy way to solve a lot of problems. My Amendment limits the annual federal budget to a fixed percentage of the previous years GDP, say 18%, collectible in any manner the congress shall chose.

    Note that the percentage is part of the amendment, so not easily changeable. Note also that borrowing excess monies is not mentioned, thus not allowed. If the congress wants more money, they have to do whatever it takes to increase the GDP. If it works, they get more money NEXT year.

  11. I also think that its unlikely to get Congress to pass this, so a Con-Con called by the states is probably most likely. I get very nervous whenever modifying the constitution comes up, especially a Con-Con. A Con-Con means that everything is up for grabs, and I don’t see a whole lot of Thomas Jeffersons running around right now.

    While I would agree with some changes such as those you propose, I think the extreme risk of a Con-Con is not worth the potential gains at this time. I see a Con-Con as being the next-to-last resort.

  12. Ian Argent says:

    Or, we could pass them the way the 18th amendment was passed, by approval of state legislatures. No congressional approval necessary.

    That’s why the various state sovereignty amendments are so important, BTW. Not that the SCOTUS can’t negate them (they can) but they indicate that the state in question would be in favor of passing an amendment to do the same. That’s the message they’re sending – “back off before we make you back off”.

  13. Jake says:

    “That’s why the various state sovereignty amendments are so important, BTW. Not that the SCOTUS can’t negate them (they can) but they indicate that the state in question would be in favor of passing an amendment to do the same. That’s the message they’re sending – “back off before we make you back off”.”

    Good point. They also illustrate one of the consequences of the Seventeenth Amendment. Considering how many states have passed or are working on passing laws against requiring people to buy health insurance, do you really think this health care monstrosity would have passed if Senators were still selected by the state legislatures?

  14. Ian Argent says:

    17th amendment followed the states; it didn’t lead it. After all, it was ratified by a super-majority of state legislatures, indicating that they WANTED the country to be bound to the same rules they had themselves been bound to.

    That’s why I find arguments to repeal the 17th amendment to be faintly silly – it was broadly popular across the super-majority of states at the time it was passed. Better amendment would be one that required that federal voting districts be apportioned in a non-partisan fashion (attacking the gerrymandering that has led us to the point that house seats are less competitive than senate seats. Senator Specter has to please all of PA – Congressman Brady only has to please part of Philly; and the part of Philly that he has to please is at least partially under his control). Not that I expect such an amendment to be practical, much less pass.

  15. Jake says:

    After all, it was ratified by a super-majority of state legislatures, […] That’s why I find arguments to repeal the 17th amendment to be faintly silly – it was broadly popular across the super-majority of states at the time it was passed.”

    So was Prohibition. That turned out to be a bad idea, too.

    Popularity != Good (or bad) idea

    The original mechanism was intended as another one of the checks and balances on the power of the federal government. The House represented the people of each state, while the Senate represented the governments of each state. Since Senators were not directly answerable to the people (only indirectly, through the elected state government), they were somewhat insulated from popular-but-ill-conceived sentiment.

    That system had its own problems, but do you think we’d have anywhere near as many unfunded mandates as we have now if Senators had to answer to the same state legislatures that they were dumping the funding problem on? And like I said before, we probably wouldn’t have this healthcare garbage if the Senators had to answer to the same legislatures that are passing laws meant to nullify it.

  16. Ian Argent says:

    The 17th amendment represents an oddity in politics, though – the state legislatures voluntarily reducing their power.

    I don’t find the argument that if Senators were no longer popularly elected the states would gain in power relative to the federal government to be persuasive, quite frankly. There’s too many different ways for the feds to control the states at this point for the change to the method of choosing senators to be effective; and for that matter, the states could still popularly elect senators if they wanted to by various dodges (as they were already doing at the time the 17th amendment was ratified).

    Senators are broadly popular in their states; changing how they are chosen won’t change that. Lautenberg would still be the senator for NJ in either case, and it would be easier for someone who wanted to influence the selection of Senator to bribe the NJ Assembly than to bribe the NJ electorate.

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