Greg Abbott’s Constitutional Proposals Would Have Sabotaged Heller & McDonald

Texas Governor Greg Abbott is going to ask the Texas State Legislature to call for a Constitutional Convention, growing the number of states who have already called for one. In addition, he’s laid out a number of proposed new amendments in excruciating detail. Key features are:

  1. Prohibit Congress from regulating activity that occurs wholly within one State.
  2. Require Congress to balance its budget.
  3. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.
  4. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from preempting state law.
  5. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
  6. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law.
  7. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
  8. Give state officials the power to sue in federal court when federal officials overstep their bounds.
  9. Allow a two-thirds majority of the States to override a federal law or regulation.

Most of these would represent improvements, but I think number six is a bad idea. It’s a bad enough idea I’d reject the whole proposal just to get rid of this bad idea. If this had been in place, Heller and McDonald would have both lost. You could go through and find numerous other cases that have expanded civil liberties that would have lost.

I’ve never agreed with conservative arguments about judicial activism and judicial restraint. Much of what conservatives call judicial activism are judges doing their jobs. If you ask me, the Court is far too respectful of democratic prerogatives of legislatures.

Perhaps the answer is to subject the federal courts to more democratic accountability. I’ve become convinced more recently that perhaps the founders were wrong to make federal judges appointed for life, with no recourse for the people. I’m open to action on this front, but not the kind of populist, judicial minimalist garbage Abbott is proposing here.

19 Responses to “Greg Abbott’s Constitutional Proposals Would Have Sabotaged Heller & McDonald”

  1. FiftycalTX says:

    I would propose a 12 year limit on elected and appointed officials at the federal level. The voter participation rate is so low that “low info” types show up once every 4 years and elections in between are overlooked. And yah, “elections are the term limits” and that is how you have 95 y/o Byrd and McCain in place for generations. Time to refresh the pool more often.

  2. Brad says:

    Yeah, a fixed 20 year term would be enough to correct most of the flaws of the U.S. Supreme Court, perhaps in conjunction with disallowing any president from appointing more than two justices.

    As for the Constitutional Convention, I say YES! Any proposed amendments still need 3/4 of the States to ratify, and I doubt anything dangerous would.

  3. aerodawg says:

    Judicial restraint is what got us John Roberts stamp of approval on Obamacare. People should remember that…

  4. Bill Twist says:

    I think #5 is just as bad. That means if there is a flip in Congress so the majority have a D after their names, it might also be possible to invalidate Heller and McDonald.

    You can’t depend on always being the majority in Congress.

  5. Alpheus says:

    Every so often, someone I know will rail against Maybury vs. Madison, where the Supreme Court took it upon itself to strike down unconstitutional laws. This power was not granted to the Supreme Court by the Constitution, so they argue that it doesn’t exist.

    Yes, sometimes the Court will strike down a law I consider Constitutional…but at the same time, what is the Supreme Court supposed to do, when it’s faced with an unconstitutional law? Uphold it? That idea just doesn’t sit well with me at all…

    • Publius says:

      I agree. My issue with this is that, in the wake of Marbury v. Madison, the sole arbiter of constitutionality is the Supreme Court. This plus the idea of stare decisis means that it takes at least a generation and a lot of hard work, money, and fighting to deal with bad decisions (and, let’s face it, those happen from time to time). No one, and no body of people, can be infallible.

    • Arnie says:

      I don’t know if this would be a solution, but the supreme Court could simply rule for the parties in the case before them, even to opining that the law involved may violate constitutional limitations, as long as they don’t purport to create new federal powers or jurisdictions, as they did in Sibelius, or new rights, as they did in Roe v. Wade and Obergefell.

      • FiftycalTX says:

        So we’ve got all the “rights” that there are? What about the 9th? The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. So it’s OK for the govt to ban emails because email isn’t mentioned in the constitution? I guess it’s OK to eavesdrop on telephone conversation without a warrant because telephones aren’t mentioned in the constitution? See how that works? Kinda like “gee, the second amendment only applies to muzzle loaders”.

        • Arnie says:

          Dear Fiftycal,
          Your point is valid and I hope the following response will sufficiently address it:

          The Ninth Amendment recognized that there were countless unalienable rights of the people that were not enumerated in the first eight amendments because such an exhaustive list would be impossible. The fear was that a future Congress would consider those eight the only limit to its powers, and would consequently arrogate powers to itself in excess of those enumerated in Article I, and thereby threaten the unalienable rights that weren’t listed. It is key to note that these were all fundamental rights, such as self-defense, unrestricted travel, raising children, etc., recognized by centuries of historical jurisprudence and English and American common law. They were not esoteric “emanations” or “penumbras” to be discovered by progressive imaginations in unconventional pursuits (such as “same-sex marriage,” obviously). For the protection of these unlisted rights, as well as of the sovereign authorities of the individual States, both the Ninth and Tenth Amendments were added to limit federal powers to those enumerated in Articles I through III. Notice both Amendments provide no list of the rights or powers they protect, for they are “many and undefined;” rather such protection is afforded by simply limiting federal powers to a defined maximum enumerated in the Constitution, thus rendering the Central government legally powerless to infringe on these rights and authorities.
          Cornell University Law School does a better job below of describing what I’m trying to say in the following excerpt from the link at the bottom of my post:

          “Aside from contending that a bill of rights was unnecessary, the Federalists responded to those opposing ratification of the Constitution because of the lack of a declaration of fundamental rights by arguing that inasmuch as it would be impossible to list all rights it would be dangerous to list some because there would be those who would seize on the absence of the omitted rights to assert that government was unrestrained as to those. Madison adverted to this argument in presenting his proposed amendments to the House of Representatives:

          ‘It has been objected also against a bill of rights, that, by enumerating particular exceptions to the grant of power, it would disparage those rights which were not placed in that enumeration; and it might follow by implication, that those rights which were not singled out, were intended to be assigned into the hands of the General Government, and were consequently insecure. This is one of the most plausible arguments I have ever heard against the admission of a bill of rights into this system; but, I conceive, that it may be guarded against. I have attempted it, as gentlemen may see by turning to the last clause of the fourth resolution.’

          “It is clear from its text and from Madison’s statement that the Amendment states but a rule of construction, making clear that a Bill of Rights might not by implication be taken to increase the powers of the national government in areas not enumerated, and that IT DOES NOT CONTAIN WITHIN ITSELF ANY GUARANTEE OF A RIGHT or a proscription of an infringement.” [emphasis added]

          Therefore, the Ninth Amendment protects unlisted fundamental rights by not allowing Congress to arrogate unenumerated powers that are limited only by the first eight Amendments. Hence, your right to use telephones and send emails is protected as much (or more) by the fact Congress has no enumerated power to abridge “electronic speech” as it is by a modernized interpretation of the First Amendment. The same could be said of modern rifles, although I would contend the universal term “arms” in the Second Amendment clearly covers them without the need for a “modern” re-interpretation.

          What the Ninth Amendment does not provide is a deep, magical well from which the supreme Court can draw new and unhistorical “rights” to impose its desired fundamental changes upon society without the consent of the people. New fundamental rights can only be created by “the explicit and authentic acts of the people,” through the ratification of Amendments by 3/4 of the State legislatures. The supreme Court’s “judicial amendments” were what I was objecting to in my previous post.
          I hope this explains my reasons for calling for a Convention of States while also allaying the concerns you brought out.

          Thank you, Fiftycal.

          Respectfully, Arnie

          Link to Cornell Law article:

  6. The Jack says:

    #6 is also off from the others.

    While the others limit government action to impose laws.

    6 makes it *harder* to remove laws, and /only/ remove laws.

    5 is also dangerous because it means that potentially changing the Constitution could be done at Treaty or Veto-override levels.

  7. Chris from AK says:

    The simplest fix simply seems to be (1) eliminate direct election of Senators and (2) make it clear that states may use any method to select state senators, to include “one senator per county” (invalidating the Warren court’s insistence on “one person/one vote” which gives huge power at the state level to large urban areas).

    Those two changes would swing the balance of power long term towards rural areas, which has its own problems (farm subsidies, anyone?) but would cripple the efforts of coastal elites, which seems the more pressing threat.

    • Arnie says:

      I like your suggestions. I would add returning the choosing of presidential electors to the State Legislatires as the Constitution reads and the Founders intended. That, along with your suggestions would help preserve a balance between State and General government power.
      As a farmer, I agree with your distaste of farm subsidies. They are just another example of government violating the free market in agriculture (along with the grain embargoes of the past) so they can control farming and keep picking the winners and losers, and the winners are those who dance to the government’s tune. Fortunately, most of them were eliminated in the last farm bill (as they should have been). But always wanting to keep some control over farm practices, the Feds still offer subsidized crop insurance at rates that make those farmers who accept it more competitive than those who turn it down, making it improbable any farmer will turn it down lest he lose out to his subsidized neighbors. And so the government continues to control how and what we farm. Groan.

    • Ian Argent says:

      How do you propose “elimintaing” direct elections? Repealing the 17th Amendment won’t be enough; the states can (and mostly still will) hold “advisory” elections prior to the appointment. And the states that don’t – well, there’s the reasons that the 17th Amendment was passed in the first place. That genie is well and truly out of the bottle.

      (Next up – election of replacement senators. That’s basically what Gov Christie did a few years back).

  8. Jack says:

    #5 and #6 are both bad and I would toss the whole thing for either of them. I would love to add my own amendment.

    Clear Law and Personal Freedom Amendment.

    Any law that is vague or unclear shall be interpreted and enforced so as to allow the greatest amount of personal freedom.

    This amendment will apply to laws from all levels of government.

    “Law” will include all laws, statutes, rules, regulations or other government edicts.

    “Allow the greatest amount of personal freedom” shall mean if it is unclear if an individual is required to perform a specific act the act will not be required, if it is unclear if an individual is permitted to perform a specific act the act is permitted.

  9. Arnie says:

    I am not familiar with Governor Abbott’s petition, but I am absolutely in favor of an Article V Convention of States for the specific purpose of reigning in the unconstitutional overreach of all branches of the General Government. Both history and human nature prove that the federal government will not voluntarily limit, let alone reduce, is monstrous powers back within the confines intended by the Founders (“chained down by the Constitution”).
    Oh sure, the supreme Court is only too happy to strike down or limit State and local powers (which only enhances its own – e.g., Heller’s “reasonable regulations” which are actually unconstitutional federal infringements made necessary by MacDonald’s emasculation of the States’ authorities in this area); but State and local authority is no inescapable threat to me. I can always leave for a different State or locality where the majority agree with my values and Liberty. But if the Central power can strike down everywhere the liberties I enjoy in my State (e.g., providing for my own health care, baking cakes for weddings of my own choosing, keeping and bearing military “assault” rifles on my own property and in public places where I have a right or duty to be), or create new rights out of evil practices that I am now required to endorse or even subsidize (Planned Parenthood, subsidized birth control, etc.) in violation of my local community standards,” I have no where else to go, but to leave the Country I spent twelve years of my life defending it and its Constitution against enemies little different than those now in government who trample its clear meanings into the sewage of their “progressive interpretations.”
    Consequently, I am presently pushing for priority passage in my own State’s legislature a petition to Congress to call for an Article V Convention of States for the sole and specific purpose of proposing Amendments to restrain and reduce the power of the government of the United States with strict wording that no court could possibly re-interpret to its own aggrandizement. The link below details the process, the amendments thus far suggestd, the reasons we need this Convention, and its prospects for success. I urge every one on this site to investigate this movement and consider proposing a petition in your respective States.
    Respectfully, Arnie

  10. asdf says:

    Heller and McDonald basically lost anyway.

  11. Philbert says:

    Supreme Court decisions are overturned by other decisions that become part of the jurisprudence. How are states going to insert themselves into this? It’s not enough for states to simply nullify a decision, because that just turns back the clock to before the Supreme Court case happened. It doesn’t solve the underlying legal dispute.

    • Arnie says:

      That’s an excellent point. If the case was originally between parties within the same State, I imagine the decision made by that State’s supreme Court would become final, as occurred in Dred Scott. But if the case involved interstate parties, or was between two or more States, nullification would bring chaos, perhaps conflict. I don’t see a solution to that.

  12. Donny Anonny says:

    Lifetime appointment for judges was probably a good idea back when 35 was the average life expectancy.

    Nowadays, with the average life expectancy closer to 80 (and projected to continue to rise for the foreseeable future) it’s probably not such a great way to limit judicial appointments.


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