Category: Politics

Randy Barnett has a different variation on a federalism amendment. Section two is the one I find most interesting:

Section 2. Whenever two thirds of the Governors of the several States concur, they may rescind any law or regulation of the United States, or they may propose amendments to this Constitution, which shall be valid to all intents and purposes, as part of this Constitution, when ratified by the Legislatures of three fourths of the several States.

I actually would suggest something even a little more radical. To allow the state legislatures of just 1/5th of the several states, which would be ten states currently, to propose repealing federal laws by putting the matter to a referendum vote. So if ten states vote to, say, repeal ObamaCare, it would go on the ballot to be voted on by the people. It would look something like this:

Section 2. Whenever one fifth of the legislatures of the several states shall concur, they may propose to rescind a law the United States, which shall be rescinded for all intents and purposes, whenever the people in two thirds of the states shall approve through direct vote, to be held on the election day for members of the United States Congress, according to the law of each state in which the ballot measure shall be held.

I think the barrier to amending the constitution needs to be pretty high, but I’m not too concerned about the people being able to rescind federal laws, especially if they are unpopular. What do you think?

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.

Jennifer makes a really good point that if health care is a right, so the government can force you to buy it, why can’t they force you to buy a gun? I’ll take it a step further and argue that at least forcing people to buy a gun and keep it would likely be a legitimate exercise of Congress’ military powers, and power to arm, train and discipline the militia. Such a law certainly would not be without precedence in this country, and the practice certainly wasn’t unknown to our founders.

It is at least an enumerated power of Congress to force everyone to buy a gun. It’s a bit of a stretch to say forcing me to buy health insurance is a necessary and proper component of Congress’ regulation of the national health insurance market. If forcing me to engage in commerce is necessary and proper, what isn’t? Congress’ power is effectively limitless because they can force me to subject myself to its jurisdiction.

I agree with what Uncle says here:

Aside from my moral objection from congress mandating that I have to purchase goods and services, the US is creating a dependent class along with a vast entitlement program. That, in addition to the fact we can’t afford the two entitlement programs we already have. Yes. I see the pattern. A government creating a dependency on a significant portion of the population. This, folks, is the issue. And they’ve done it before with Social Security and Medicare. They’re creating a group beholden. A group that will vote a certain way or risk losing benefits. Another lobby group rivaling the AARP can spring from this and be a player under the guise of preventing what I talked about earlier from happening. But still complicit in the dependence.

The bill is so long there’s bound to be a lot of crap it in it that are really going to piss off voters. There’s even vending machine requirements that require posting nutrition information. That could be a problem for my club, who has a machine for members. I suspect given federal requirements, we’d just as soon scrap the whole thing. Nice thought, you see, but we don’t want to risk offending the federal requirements. You’d think the vending machine industry would be against such practices, but probably not. It’s regulatory capture. Vending providers will make out because they’ll be the only ones that can afford to deal with the regulations. Vending machine makers will make money on an entirely new class of machines that meet the requirements. How many other nanny state requirements are in this bill? Plenty, I’m sure. The people need to get pissed, and ride these mothers until things change. You can’t depend on the free market to save you. Corporations are now in bed with big government, and it’s all of us who will be the losers.

As for vandalizing private property, it would seem the three percent movement has adopted the tactics of Palestinian school children, and I expect all this to work out just about as well for liberty in this country as it has for the Palestinians. The brick hurlers can wrap themselves in the imagery of the founders all they like, but the founders deplored this kind of mob violence:

Some modern scholars have argued that this interpretation is a myth, and that there’s no evidence that Adams had anything to do with the Stamp Act riots.^[58] After the fact, Adams did approve of the August 14 action because he saw no other legal options to resist what he viewed as an unconstitutional act by Parliament, but he condemned attacks on officials’ homes as “mobbish”.^[59] According to the modern scholarly interpretation of Adams, he supported legal methods of resisting parliamentary taxation—petitions, boycotts, and nonviolent demonstrations—but he opposed mob violence, which he saw as illegal, dangerous, and counterproductive.^[60]

The mob violence was mostly instigated by a gang leader and well known rioter and instigator Ebenezer McIntosh. Fortunately for this country, the movement against the Stamp Act would be taken up by cooler heads. There will always be “herds of fools, tools, and synchophants,” as Sam Adams once said, in any movement. The trick is identifying them and distancing yourself from them. Vandalizing private property is not civil disobedience, or righteous protest. It is, to borrow a term from Sam Adams, “mobbish,” and is not at all within the realm of what the founders would have viewed as legitimate action. If you want to stand with the founders, use the system they created and join us in helping vote these bastards out come November. Then we can see what our options are in terms of getting rid of the monstrosity.