Thanks to readers for their comments on the proposal I posted earlier. Having read them, I am now curious about reader reaction to a more structural approach to restoring constitutional federalism.
FEDERALISM RESTORATION AMENDMENTSection 1. The legislative power of Congress shall not be construed to include mandating, regulating, or prohibiting the private health insurance of any person not an employee of the federal government.
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.
Comments on this proposal are now open.
Monty says:
Would congress still be able to strong arm states in to mandating, regulating, or prohibiting with conditional spending?
Also, would a tax on those who don’t have insurance be a mandate? Could congress just say its a regular tax, and that people are free to choose it over insurance, and it is not therefor a mandate, or would it still be one?
March 26, 2010, 2:11 pmRagspierre says:
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. No branch of the Federal government shall have power to compel economic activity, or alter otherwise legal private contract, except through bankruptcy.
I think that would cover the water-front.
March 26, 2010, 2:11 pmThales says:
Are the States required to have “Governors” under the republican form of government clause? I’d use “Executive authority” or something like that. Interesting idea to include state separation of powers as a mechanism for state nullification.
I don’t think your amendment addresses the taxation point with respect to the current health care proposal [see my comment in your other thread].
March 26, 2010, 2:12 pmtroll_dc2 says:
Section 2 has no time limit. Suppose 30 governors agree to rescind a law in 2010. Then there is an election, and a lot of new govenors are elected. Can the rescission measure pass if four of the new crop of governors sign on? What if two of the newly elected governors seek to overturn their predecessors’ approval?
March 26, 2010, 2:14 pmSteve says:
The second part is more interesting than the first. What’s the point of proposing an amendment that needs a supermajority in order to undo a law that was just passed by a legislative majority? It reminds me of liberals who are worried about Republicans restricting the right to abortion, so they say, “Let’s pass a constitutional amendment to protect it!” Duh. And a strange world it would be, indeed, where the only two items of commerce the federal government is absolutely restrained from regulating are alcohol and health insurance.
March 26, 2010, 2:15 pmAndrew says:
If you’re going to give such a veto power to the governors with respect to legislation, then you ought to let Congress over-ride as in the case of a presidential veto. And I disagree with amending Article V; there’s no need. You also should generalize beyond health to some larger principle. So:
Again, I’m not endorsing this kind of thing (as of now), but merely suggesting improvements.
March 26, 2010, 2:16 pmMonty says:
make it Concurently Concur?
March 26, 2010, 2:16 pmDod says:
I’m not crazy and the “pass and rescind” approach of Section 2. I think it would be better to make certain things clearly off limits to Congress.
March 26, 2010, 2:17 pmDave N. says:
Two thoughts:
1) So how would Congress regulate dependent coverage for family of federal employees?
2) How, exactly, do we know if 2/3 of the Governors agree on anything? A signed, joint letter? Press releases? Speeches a Governor is reading that someone else wrote? Executive proclamations? Do they meet? (I realize they do at the National Governors Association, so does that group now become quasi-governmental as some kind of deliberative body?) Does it have to be in exactly the same form, like legislation?
Those are just off the top of my head. I am against ObamaCare. I am also against this kind of inane Constitutional amendment.
March 26, 2010, 2:17 pmcboldt says:
It seems that would be easy to get around by federal legislation. Simply create a system of PUBLIC insurance, and mandate participation. The public insurance could start out small (only covers million dollar procedures or something), then ratchet the degree of penetration over a period of years. This technique worked like a champ for income tax.
March 26, 2010, 2:18 pmAs for giving state governors the power to initiate federal constitutional amendments, I think that sets the trigger too fine.
Thales says:
Also, I take it one desired policy goal of yours is to prevent a direct government-run or provided health care system–if so I would add “health care services and” and strike “private” in front of “health insurance.” Also change “the federal government” to the “government of the United States.”
March 26, 2010, 2:18 pmB.D. says:
Section 2 does further damage to federalism, IMO. Or at the very least it further blurs the lines and is inconsistent with the federalism inherent in the Constitution’s structure. Do you really want to transform governors into another house of Congress?
March 26, 2010, 2:19 pmDesiderius says:
David Williams:
“I would like to see an amendment that said something to the effect of “While the Federal Government has the power to regulate intersate commerce it shall not be a participant in interstate commerce”.”
Second.
epluribus,
“I mention that only because so many here seem to want to get back to the way things were in the old days.”
Ad fontes.
March 26, 2010, 2:19 pmyankee says:
Hey, as long as we’re indulging in absurd fantasies:
Amendment XXIX—Human Rights
1. All persons have the right to freedom from discrimination based on race, sex, color, language, sexual orientation, gender identity, disability, or circumstances of birth in employment, housing, or provision of any goods or services whatsoever; provided, however, that this section shall not prohibit policies for the alleviation of discrimination against disadvantaged classes.
2. Each person has the right to the necessities of life, including adequate food, shelter, and medical care.
3. Neither the United States nor any State shall discriminate against the poor in the provision of public services, including, without limitation, providing funding for public services in poor areas that is less than funding for public services in wealthy areas.
4. Each person shall have the right to a clean environment.
5. The provisions of this article, and all other rights arising under this Constitution or the Constitution of any State, shall apply to all persons within the United States or any such State, or in any location subject to the authority thereof, without regard to citizenship, residence, or documentation.
6. Congress shall have the power to enforce, by appropriate legislation, the provisions of this article. Such authority shall extend to substantive, non-remedial legislation enforcing this article beyond the minimum standards articulated by the courts.
March 26, 2010, 2:19 pmNaG says:
Wow, the notion of state governors, as a body, being able to strike down federal laws is…well, it seems awfully radical. Also, why should two-thirds of the governors be equal to three-fourths of the state Legislatures when it comes to constitutional amendments? I don’t like that part.
March 26, 2010, 2:19 pmRagspierre says:
The term “concurrently” would be ambiguous. Within any one-year period, beginning with the first such act of rescission, might work.
March 26, 2010, 2:21 pmKent Scheidegger says:
Section 2 needs a lot of work, as you have mixed rescission of statutes and amendment of the Constitution. Does a rescission of a statute become part of the Constitution when ratified by 3/4 of the states?
The amendment does not address the number one federalism problem: federalization of issues by the judiciary’s grafting them on to the Constitution. As Judge Friendly noted long ago, the Bill of Rights has been transformed into a detailed code of criminal procedure, to which a new chapter is added every year.
We need a way to abrogate Supreme Court decisions that declare to be unconstitutional statutes or practices that have coexisted with the constitutional provision in question for many years and were never considered incompatible before.
March 26, 2010, 2:21 pmc.s.b. says:
So what would that mean for the Supremacy Clause?
Seriously, I have absolutely no idea why state executive officials should be able to override their constituents’ elected representatives in the federal legislature.
And I’d just point out–you would be making the federal legislative process even more substantially unrepresentative. Particularly since the thirty least populous states would effectively have a veto power over the nation’s majority in the remaining 20.
March 26, 2010, 2:23 pmA.W. says:
Very interesting idea, but what it does is in effect turns the governors into almost an arm of the US legislature. you could imagine, for instance, that the governors would then be in constant communication with the congress. So this time the cornhusker kickback would be negotiated by the governor, not the senator, or more like congresspersons and governors would both be elbowing each other to get to the trough.
I will say i think you are overcomplicating it with the proposal. If you focus like a laser on health care, you’d have a decent chance of it passing.
And how does that work. If there is a 500 section budget, and they get the appriate supermajority to object to one part, the whole thing goes down? What if RI doesn’t like section 301, CT doesn’t like section 302, Texas doesn’t like 303, etc. all adding up to 2/3 of the states.
maybe the better approach would be to return the senate back to being appointed by state legislators.
But I will say it addresses my concern that the public won’t completely back a return to the original commerce clause, without alot of adjustment.
Another question i have is this. What if the law doesn’t even involve states in a significant way? if congress passes a law pertaining to the government of DC or Porto Rico, should a state have a veto on that? Or there is a law against US companies bribing foreign officials. The relationship between the states and that law is tenuous at best.
March 26, 2010, 2:23 pmDave N. says:
A third thought.
The two provisions are so very different that they really should be in two separate amendments.
It’s like if someone had said, with respect to the Bill of Rights, “Hey, let’s put Freedom of Speech and the right to a public trial in the same amendment.”
March 26, 2010, 2:23 pmFailbook h8tr says:
Off-topic, my apologies
Is there a non-facebook site for those of us that would like to participate in liberty glow but do not wish to give up private information in exchange for a facebook account?
March 26, 2010, 2:24 pmKent Scheidegger says:
c.s.b.,
50 * .75 = 30?
March 26, 2010, 2:26 pmGuest says:
I find section 2 a bit confusing. Are 3/4 of the states’ legislatures required for rescinding a law/regulation? If so, I would suggest not.
Also this section seems to take the place of repealing the 17th Amendment. Therefore I would suggest abolishing the senate, though you may find it difficult to get the senate to actually vote for that.
March 26, 2010, 2:28 pmDave N. says:
or even, 50 * .666 = 30?
March 26, 2010, 2:29 pmAbel says:
That is awesome. Couple of suggestions, if I may.
1) Not 2/3. 1/2. The fact that 1/2 of the Governors voted against it is a sign that there is no majority support (hence, no “consent of the governed”. Also, this allows to rescind trivial stuff. The trivial stuff is sometimes very important to get rid of (for example, some silly fishing regulation from 1947; good luck finding 2/3 majority of governors, if many of them are landlocked states).
2) Rescind *any part* of the law of regulation. Lots of laws are 90% okay. Rescinding the entirety of the law seems excessive and creates instability (see point 3). Again, this also allows to rescind trivial stuff.
3) Ability to propose amendments sounds scary. The ability to propose amendments is very limited now, and seems to be so for a good reason (it is somewhat an indicator of broad social acceptance of the proposed change).
In China there was once an Emperor that pushed through a large number of truly good reforms in short amount of time (100 changes in a month, IIRC). He was overthrown almost immediately by his relative. The relative rolled back some but not all of previous Emperor’s reforms…
In short, there is always a threat of going too fast even in a correct direction. Such an additional method of amending Constitution might scare the general public that does not see the need for many constituitonal changes in a first place.
March 26, 2010, 2:30 pmAnthony says:
In general, a constitution amendment to negate a bill that successfully got through the senate is just a vanity proposal, because it has no realistic chance of working — if it got through the senate in the first place, it probably has over 50% of the states in favor, and nearly certainly has over 25% in favor.
Section 1 seems unnecessary; it is adequately covered by section 2, assuming 2/3 of states are opposed to the health care bill in the first place.
Section 2 is very odd, as it’s sort of turning the governors into an additional branch of Congress. It’s also unlikely to be relevant, if 2/3 of the governors are opposed to something it’s probably not getting passed in the first place. You would probably achieve the same results by repealing the 17th amendment and granting the states the power to recall senators, since at that point the senators would be acting as agents of the state governments.
March 26, 2010, 2:30 pmBilly Brown says:
A supermajority requirement for repealing laws is far to high a standard, especially for a group (state governors) that doesn’t routinely meet to begin with. That makes a simple repeal almost as hard as passing a constitutional ammendment, so it’s probably never going to happen.
Make it a simple majority of governors, with congress being able to override just like a presidential veto, and you’ve got an effective check against wildly unpopular legislation but nothing else. Make it a vote of a new group of representatives with no other duties, and you’ll get gradual repeal of all sorts of unpopular programs.
March 26, 2010, 2:30 pmSean O'Hara says:
How about taking a completely different approach, and codify the individual right of sovereignty over their own body?
“A person’s right to absolute sovereignty over their own body shall not be infringed by any law requiring or prohibiting the consumption, imbibing, inhalation, or injection of any substance, nor the submission to any violation of their person, nor enrollment in any program that would require or prohibit the above, except where absolutely necessary for the execution of law enforcement powers or the effective organization of the armed forces.”
Nitpick phrasing as necessary, but you get the basic idea.
March 26, 2010, 2:31 pmajacksonian says:
Section 1) The sixteenth and seventeenth articles of amendment to the Constitution of the United States is hereby repealed.
Section 2) Article One, Section Two, Paragraph Three reading, ‘…shall not exceed one for every thirty Thousand,’ shall be changed to read ‘…shall be one for every thirty Thousand,’ and all further power of Congress to set its own size is rescinded by the people.
That should do it. At 1:30K the place will be a proper representation of the people, down to the neighborhood level, which ought to stop up the works no end until the folks there start to shrink the size of things to something that can be passed by such a Congress. I do not fear overly representative government… just the opposite, I fear under representation far more.
March 26, 2010, 2:32 pmyankee says:
I think a lot more clarity needs to be added regarding what constitutes “any law or regulation of the United States” and what it means to “rescind.” Could the governors only repeal the entire Affordable Care Act, or could they pick and choose individual provisions? Can they rescind an act of Congress amending a prior act, or only the underlying act itself? (E.g., can they rescind the Americans with Disabilities Act Amendments Act without rescinding the Americans with Disabilities Act?) If the act or regulation “rescinded” repealed other provisions of law, are the repealed provisions thereby brought back from the dead?
Or: the CFR version of Regulation D includes eight separate sections (501 through 508). Can the governors rescind any of those eight sections, or just the entire Regulation D itself? Can they rescind particular subdivisions of those eight sections?
Depending on what the smallest unit of law the governors can “rescind” is, this could give the governors enormous power to alter the shape of federal law.
March 26, 2010, 2:32 pmDangerMouse says:
Randy,
With respect, this amendment will do nothing.
Section 1 is mere word-games, again, about “construing.” A liberal Supreme Court will gut it.
Section 2 will never go into effect, because its high requirements means that it will never overcome the liberal statists who increasingly make up state governments as well.
You need to REALLLLLLLY dig down deep into the structure. For instance, the real problem here is that statists gain power by promising free money and services to those who don’t have them by taking it from those who do. That is, 51% of the populace can steal from 49% of the other. To get at this basic structural problem that is a necessary step towards statist democracy, you can:
1. Limit the right to vote to only those who posess property or have sufficient income. That’s the way it was during the Framers’ time, and it will have the effect of avoiding word games with libs on the court, while serving to combat ambition with ambition by ensuring that those who will suffer from robbery will only be those who would elect the robbers.
2. Prohibit the direct election of Senators – this we know for obvious reasons, but generally to re-state: it would tie Senators to their state needs, separating them from the clamours of the populace who would eagerly vote to steal from 49% of the populace.
Congess’s power is spending, that is their hammer, and every problem is a nail. Limit spending by allowing only those who have property or income to vote. It will naturally follow that their representatives will not be so eager to tax and to spend. With a natural constituency such as these, you avoid all the word-game problems like “is a mandate a tax”, or “is this regulation a taking,” etc. If the people who can vote are those who stand the most to lose, you AVOID ALL THOSE PROBLEMS ENTIRELY.
This is the kind of change that is structurally required.
Try li
March 26, 2010, 2:34 pmJeremiah says:
The section 2 threat in the hands of governors will primarily work to reduce unfunded mandates. It will have little effect, I think, on fully-funded programs, or on conditional aid to states. Budget relief via the federal taxpayer will always, to at least 1/3rd of the states, look less onerous than complying with the conditions attached.
In fact, if the federal money flowing to states does fully fund the programs to which it is attached, Washington will have have all the more justification to reduce the scope of state decision-making in its use. Therefore, if the goal of the amendment is to reduce or restrain the centralization of power in Washington, I do not believe it is likely to be effective.
March 26, 2010, 2:35 pmbyomtov says:
Whenever two thirds of the Governors of the several States concur, they may rescind any law or regulation of the United States, or 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.
JFTR, the 34 smallest states contain about a third of the population of the country. The 41 smallest contain less than half.
That in itself makes this a very bad idea to those of us who see nothing magical in federalism.
March 26, 2010, 2:36 pmDave N. says:
You would probably love the New Hampshire House of Represenatives: 400 members, or one state representative for every 3,300 people in the State.
March 26, 2010, 2:37 pmAngus says:
From the comments in the previous thread, it seems that to conservatives such anti-democratic changes are fully intended, much like repealing the 17th amendment.
As to the actual proposed amendment, you still run into the problem that #1 is aimed at one specific piece of legislation. This makes section #1 more about partisan politics than about the structure of the government.
Section #2 strikes me as unwieldy and undesirable. If you are going to give governors that much power over federal legislation, just go ahead and abolish Congress and replace it with a legislative body made up of the state governors.
March 26, 2010, 2:39 pmJonathan says:
Two issues: First, do three-fourths of the State Legislatures have to ratify the Governors’ decision to rescind federal legislation? I assume the answer is ‘no’, but for the sake of clarity it may be best to divide Section 2 into two sentences.
Second, also with regard to rescinding legislation, I would be concerned about the lack of time limits and of a formal process for exercising this power. The current language seems to give the Governors unlimited authority to rescind federal laws at any time, which is more a legislative power than an executive one. In line with the governors’ status as executive figures, perhaps the language should be revised to make this authority more akin to a veto power. To make the process more formal, you could require that Congress issue quarterly reports to the Governors setting out all bills signed into law by the President, with each law going into effect if not vetoed by two-thirds of the governors within 90 days of the issuance of the report. Some exception would also be necessary for emergency legislation. While I certainly haven’t thought through all of the potential problems with this (for example, six months may be too long a time between passage of a law and its going into effect), I think it would provide the States with a sufficient check on federal power, while limiting potential abuses by governors.
March 26, 2010, 2:40 pmDangerMouse says:
To re-state my lengthy post: if only those who pay taxes or have property elect the representatives, then the legislatures will be much less inclined to spend or to tax those people. A natural limitation of their constituencies to those who stand the most to lose from the exercise of federal power will do much more to prohibit federal power and legislative abuse than any court would.
That’s the way it was when the Constitution was ratified too. Although the federal constitution didn’t set qualifications for voters when it was ratified, it was generally understood at the time that property or income levels were acceptable and GOOD FEATURES to limit the power of governments.
March 26, 2010, 2:42 pmpjwg says:
I think a tax prohibition needs to be included specifically. Otherwise, the Federal government would retain the power to tax individuals’ private healthcare. Also, it wouldn’t prevent the Feds from taxing healthcare industry profits to fund nationalized health care. No doubt, liberals would vote to do so, to the point where it would make insurance unaffordable for most people, and force them into a one-payer, govt. system or simply cause most insurance providers to fail. Taxing an industry out of business has, long ago, been held as contstitutional.
March 26, 2010, 2:43 pmEvan says:
Very well, what would this mean? Say that California has strict environmental legislation, which raises the price of everything manufactured there three times. But Nevada doesn’t, so Nevadan goods are cheaper and outcompete Californian goods. If they were separate nations, California would enact a tariff, just like the EU is thinking of doing. But, the Constitution prohibits that. Currently, what California would do is petition the Feds to enact environmental laws about the manufacture of any goods that go in interstate commerce, but your amendment would prohibit that.
But what if the population isn’t a multiple of 30,000? Say there’re 100,000 citizens – you can’t have 3 1/3 representatives; you need at least some way to round fractions. This’s leaving aside the question of whether a larger House would really be better – it would seem to make meaningful debate even less likely than it is today. Perhaps the gains in better representation would be worth it, but I’m not sure.
March 26, 2010, 2:43 pmTTr says:
People have talked about (proposed) Section 2. But Section 1 is also troubling. Did you really intend to repeal ERISA, Randy?
Not your field, I know. But trust me you’re doing a lot more here than you think, since ERISA regulates 99% of health care law. I’m not sure you have really thought out the resulting consequences.
March 26, 2010, 2:47 pmMichael Brock says:
Section 2 is great, but Section 1 will not be supported by the left, and will lack the support needed for passage. But the results of Section 1 can be achieved at a later date by Section 2. And you could sell section 2 to the right as a means to repealing the health care legislation.
The key is crafting an amendment that can get support from both the left and right. Something that only transfers power to the states will do that.
March 26, 2010, 2:48 pmGuest says:
I also think that a section (or separate amendment) needs to added prohibiting congress or a federal agency from conditioning a dispersal of money based on a state’s (or it’s subdivision)action in order to receive it (e.g. NCLB).
March 26, 2010, 2:50 pmDangerMouse says:
Don’t play word games by writing so-called “construed” limits into the Constitution. The libs on the Court don’t even believe the ACTUAL words of the constitution have limits, so they’re sure as hell not going to be bound with an instruction to construe something a certain way. It is a fantasy to suggest that they would.
Put on your “Framers” hat and think about the psychology of a democracy. There are incentives that naturally create statism, such as who votes for the statists, government dependency, etc. Limit the power to vote for representatives only to those who stand the most to lose, and you’ll do more than any Court to limit government power.
The Framers were not idiots. They were writing a CONSTITUTION. They didn’t play word games in the Constitution. They knew that a would-be tryant would not be stopped by words. Instead, they were building a strucutre of a government of limited powers. And the structure has been torn down by the 16th amendment, the 17th amendment, and the 26th amendment.
Deal with the structure.
Besides the idiocy of thinking that an Amendment that directs a Court to “construe” something a certain way would actually work, it suffers the additional problem that it has NO POLITICAL APPEAL whatsoever. No one is going to march down Main Street to get the Court to “construe” something. But that ARE sure as hell going to march if they can fix the structure.
March 26, 2010, 2:51 pmAngus says:
As a purely political matter, I would favor allowing the states to set such limitations on voting with the additional provision that such excluded voters shall not be counted when apportioning representatives or electoral college votes. My feel is that politically conservative states would reduce their voting populations significantly, thereby reducing their representation in Congress and in Presidential Elections.
Of course, that’s why Constitutional Amendments as a whole are largely a bad idea except in cases of true broad agreement and emergency — that people will start proposing amendments to specifically favor their pet political cause or goal.
March 26, 2010, 2:52 pmyankee says:
byomtov—speaking of there being nothing magical in federalism, here’s another not-going-to-happen proposal:
1. Each bill, upon passage by a majority of the members of the House of Representatives, shall be presented to the President and shall become a law upon his signature, unless the Senate disapproves of such bill by a vote of ninety percent or more within three days of is passage by the House; provided, however, that in the event of such disapproval, such bill shall be returned to the House of Representatives for reconsideration, and it shall be presented to the President for his signature upon the vote of fifty-two percent of the members of the House of Representatives.
2. If the President approves of the bill he shall sign it, but if not he shall return it, with his Objections to the House of Representatives, who shall enter the Objections at large on their Journal, and proceed to reconsider it. If after such Reconsideration two thirds of the House of Representatives shall agree to pass the bill, it shall become a Law. But in all such Cases the Votes of the House of Representatives shall be determined by Yeas and Nays, and the Names of the Persons voting for and against the Bill shall be entered on the Journal of the House of Representatives. If any Bill shall not be returned by the President within ten Days (Sundays excepted) after it shall have been presented to him, the Same shall be a Law, in like Manner as if he had signed it, unless the Congress by their Adjournment prevent its Return, in which Case it shall not be a Law.
March 26, 2010, 2:52 pmyankee says:
What makes you think Randy doesn’t intend to repeal ERISA?
March 26, 2010, 2:58 pmSpitzer says:
Randy: won’t work. (1) The use of the terms “private”, “health” and “insurance” are going to be confusing in constitutional law (what is “insurance” as a matter of fundamental law? Can the government mandate that insurance companies give coverage to all? How about pay-for-service – can the government regulate that market? What about Medicare/Medicaid? What about drugs – what limits does this set on the G’s ability to regulate drug markets?); (2) the federalist council sounds cool, but won’t work – state and local monies increasingly come from the Feds; politics being what it is, if the Feds are paying the piper (and the states letting thm), doesn’t that mean the Feds will call the tune?
The cleaner way to do this is (1) repeal the (domestic) Commerce Clause (leaving the Feds little wiggle room), and (2) replace your federalist counsel with a federalist court – compose a court consisting of, say, the chief justices of each state’s supreme court; give them exclusive jurisdiction to hear any and all cases in which the states assert the Feds have breached federalism boundaries, and empower them to overrule those statutes. Let them run their own affairs, but let them sit in large panels of, e.g., 9 or 11, as well as en banc (all 50!). Finally, give their decisions equality with those of the Supreme Court.
March 26, 2010, 2:59 pmEvan says:
As long as we’re talking about amendments that aren’t going to get passed, why not:
Every bill, when first introduced in either House, must be read aloud to a meeting of said House in its entirity by any Member introducing it, and if the text has changed since said reading, it must again be read in the same manner immediately before it is voted on, and no item not so read shall have force of law. No law of the United States may continue in force for more than sixty years from the date of effect.
Every bill introduced in the Congress of the United States shall either be passed or defeated in full house before the election to the House of Representatives next succeeding.
When the legislatures of three fourths of the several States propose the identical Amendment to this Constitution, it shall go to referendum in every one of the several States at a time not after the next general election for the House of Representatives. If it is approved by XX percent of the population in each of a number of states which, when taken together, constitute ZZ percent of the population of these united States , it shall be valid to all intents and purposes, as part of this Constitution. Provided that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate or its right to secede from this Union.
March 26, 2010, 2:59 pmFiftycal says:
Enough with the lawyer speak. The Constitution was written in the language of the day. And amendments should be written in our language. Thus;
CONGRESS SHALL MAKE NO LAW that creates a national healthcare system or that requires payment by an individual to any national insurance scheme.
And while we are at it;
No person shall serve in Congress more than 12 years in their lifetime.
March 26, 2010, 3:00 pmNo federal judge shall serve more than a 10 years in their lifetime.
The Senate will approve or reject all Presidential appointees within 30 days of having their names submitted for approval.
Congress shall approve only balanced budgets starting with the budget for fiscal year 2012, unless there is a war declared by Congress.
Whadonna More says:
Part 1 Pushes liberal thinkers TOWARD socialized medicine, since it only regulates one possible payment scheme. It won’t take long for Obama to figure out that fixing prices gets the desired result without mandating insurance.
Term limits do what 2 does, only better.
March 26, 2010, 3:00 pmStephen Lathrop says:
Here’s my spin. What’s driving a lot of the expansion of federal power is a perceived need for something to counter corporate power. Corporate power to affect policy, law, living conditions, resource allocation, and other fundamentals normally within the purview of government now exceeds anything the founders anticipated. Likewise the expansion of federal power.
If you want less federal power I think you need smaller challenges to federal power. Do the conservatives commenting here prefer that corporations freely compete for sovereign power? Or could they imagine increased scope for personal freedom won by stricter restraints on corporate power?
I would prefer federal chartering of larger corporations. I would prefer a model for corporations taken from nautical practice, in which the corporation is envisioned in the role of a ship, and its various interests analogized to crewmembers, passengers, cargo owners, and others who’s assets and interests may be put at hazard by the ship’s operations.
I would expect corporate officers to be trained and licensed for their roles, like ship’s officers, and to exercise professional responsibility on behalf of the aforementioned stakeholders in the manner of ship’s officers. Failures to perform adequately would be judged professionally, as in a maritime inquest. Licenses of failed officers could be revoked.
The standard for the performance of maritime officers is conservative by any reckoning. Can conservatives imagine applying it to the officers of corporations? If so, then I think the prospects for restricting government power might improve. Otherwise, citizen stakeholders will demand to protect themselves by means of something commensurate with ever-growing corporate power. Ever-growing government power seems the likely outcome. It’s not a good situation.
March 26, 2010, 3:04 pmtde says:
This is a joke, right?
March 26, 2010, 3:04 pmSpitzer says:
Better than term limits is, I think, the original 1st amendment to the Bill of Rights (12 states voted for it, 1 short): in practical effect, it would mandate congressional districts of 60,000 people each, less than a tenth of the current size. That would mean, say, 5,000 congressmen. Setting office space issues aside (the Brits do well with a parliament building that is much smaller than ours, but they have about 50% more members of the House of Commons, not to mention the 700 or so members of the House of Lords – and if they can manage, why not us?), the proposal would do a lot to restore real democracy: (1) the cost of campaigning would go way down (heck, that’s just a fairly small town, easy to knock on doors); (2) the ability to gerrymander all those districts would be limited; (3) the campaign-finance issue would largely go away; (4) congressmen in smaller districts would be less anonymous, and more eager and attentive to individuals (every vote really would count); (5) it would be easier to mount primary challenges; and (6) out of 5,000 congressmen, maintaining party discipline would be much more difficult – so more factions, more politicking, and far, far less ideological purity.
Keep the Senate the same, of course. We’d still need the rule-laden house, and the contrast between a rollicking house and a staid Senate would be fun.
March 26, 2010, 3:10 pmManekiNeko says:
Amend Article V as follows below to allow 2/3 the Legislatures of the States to propose constitutional amendments without requiring Congress to call a convention. The States’ power to call a convention is predicated on Congress acting, and there is simply no way to prevent Congress from doing nothing or applying extra-constitutional requirements to avoid making a call when it is required to, e.g., requiring that Applications be contemporaneous or have the same subject.
“The Legislatures of two thirds of the several States, whenever they shall deem it necessary, or the Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, the Congress shall call a Convention for proposing Amendments, which, in either Case, 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 or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
March 26, 2010, 3:10 pmMichael Brock says:
Maybe tweak Section 2 a little.
Instead of the state governors having the sole power, maybe leave this to the states to decide the exact process.
Also, maybe just a simple majority of states to rescind a law.
March 26, 2010, 3:10 pmThales says:
So what would be DangerMouse’s property cutoff to return us to pre-Jacksonian voting qualifications, and what if this had the result of making the electorate substantially whiter and maler–any problem with that from a substance or “optics” perspective?
Why do I suspect that DangerMouse doesn’t really like the 14th, 15th or 19th amendments either?
March 26, 2010, 3:12 pmSebastian the Ibis says:
How about adding:
The root cause of the problem is the taxing and spending power of the Federal Government. The Federal government can tax the citizens of a state and offer to return those funds to the state only if the state adheres to the will of the Federal government. If this were done away with Medicare, Obamacare and numerous other programs could be restrained. South Dakota v. Dole, found grants in aid constitutional, so it looks like an amendment is the only way to go.
March 26, 2010, 3:18 pmc.s.b. says:
Randy, these two “constitutional amendment” threads really undercut the credibility of your legal arguments re: the health care bill.
It’s not even that you are arguing for a view of the Commerce Clause that is out-of-line with nearly the last century of Supreme Court jurisprudence.
But now you are trying to push a kind of “federalism” in which the national government is substantially weaker than what the framer’s themselves have actually intended. This isn’t even originalism; I don’t know what you would call it. A return to the Articles of Confederation? Because you know how manageable that was.
March 26, 2010, 3:19 pmNeil says:
Maybe think about this:
Period, full stop. It’s not a libertarian wet dream, but it addresses the fundamental issue–it’s not “health care” that’s the problem, but the whole precedent of requiring the purchase of goods and services. And this one might actually be something that could get passed.
March 26, 2010, 3:20 pmGuest says:
What if making the qualification contingent on whether paid taxes > entitlements received plus losses.
March 26, 2010, 3:21 pmNunzio says:
How about we leave the Constitution as is?
March 26, 2010, 3:21 pmZSorenson says:
All I know about the commerce clause is that as opposed to the federal republic, the articles of confederation were considered insufficient in terms of commerce because of the way states restricted trade between each other.
So maybe a simple ammendment that specifies that the proper and indeed original and sole interpretation of congress’s commerce powers is to limit the extent to which states can intefere with commerce between states.
This means that the federal government has no power itself to regulate the economy at all. It is only a check against states that interfere too much with interstate commerce via intervention.
To prevent this from being too big a change, the ammendment would specify that implicit in the income tax powers achieved via ammendment itself is the ability to spend that on whatever congress pleases.
So: congress can still do welfare, even Medicare for all. But it can’t regulate insurance. It can still print greenbacks and operate the fed, but not mandate the fed’s currency as sole legal tender.
Since the Feds now would have only the power to restrict states, you may want to consider the part 2 of this ammendment still. You’d want states to be able to prevent insurance fraud. In any event, this would take care of part 1.
March 26, 2010, 3:27 pmKen Arromdee says:
The problem with this isn’t just that it might bias the electorate towards white males. The general problem (and the problem with other franchise limits, such as Heinlein’s in Starship Troopers) is that the law is used for more than just collecting and distributing taxes.
A poor person might not pay taxes and you could argue he shouldn’t get to decide how to redistribute someone else’s taxes. But it’s hard to argue that he shouldn’t get to decide whether it’s okay to put him in jail for speaking out against the government.
March 26, 2010, 3:34 pmKen Arromdee says:
There’s also the dodge of “we’re taxing everyone, but we’re giving deductions if you buy insurance”. That has the same effect as taxing people who don’t buy insurance, but it’s presented differently and is a loophole in the rule.
March 26, 2010, 3:36 pmPersonFromPorlock says:
So, do we want a second Revolution, or a Reformation? I suspect most of us who’re talking about amendments really want the latter. Maybe the way to go isn’t changing what’s already there, but adding something to mandate immediate removal of members of Congress who vote for, say, five laws subsequently found to be unconstitutional. I imagine this would suddenly create 535 intensly conservative constitutional scholars.
March 26, 2010, 3:37 pmMark Field says:
I think this proposal needs a snappier title. I suggest “The John C. Calhoun Honest Nullifier’s Amendment”.
March 26, 2010, 3:38 pmThales says:
“Guest says:
Thales: “‘So what would be DangerMouse’s property cutoff to return us to pre-Jacksonian voting qualifications, and what if this had the result of making the electorate substantially whiter and maler–any problem with that from a substance or “optics” perspective?Why do I suspect that DangerMouse doesn’t really like the 14th, 15th or 19th amendments either?’”
“What if making the qualification contingent on whether paid taxes > entitlements received plus losses.”
Great–so if I am too poor to pay taxes but receive only the umbrella of national defense, the court system and other desiderada of libertarian minarchy should I be disenfranchised? Don’t you then turn the government of the minimal state into an out and out plutocracy?
March 26, 2010, 3:39 pmGuesty says:
Section 3: Pi = 3.
I mean, why not?
March 26, 2010, 3:49 pmFro says:
while we’re restoring federalism, can we add:
Congress has the exclusive power to regulate corporate entities who conduct business in interstate or international commerce, including holding legal or equitable property interests outside its state of incorporation.
March 26, 2010, 3:52 pmAngus says:
I don’t think DangerMouse and a lot of other conservatives would object to a plutocracy.
March 26, 2010, 3:53 pmyankee says:
Well, we can’t let the peasants govern their betters, can we?
March 26, 2010, 3:56 pmSarge6 says:
Wouldn’t you also need a Section 2 directed to the Article III courts to restore the 10th Amendment from a mere truism or something to that effect (then make your current Section 2 to 3)? And for that matter could you take the 9th Amendment and beef it up into the libertarian-federalism amendment?
March 26, 2010, 3:58 pmSpitzer says:
ZSorenson – I think the free-trade issue you refer to is covered not by the Commerce Clause itself, but by Art I Section 9, clauses 5 and 6 (no tax or duty on exports from any state; and no harbor/shipping preferences) and Art IV section 2 (privileges and immunities). The Commerce Clause just lets Congress regulate interstate commerce.
Get rid of the Commerce Clause and the world does not fall apart. The states start regulating economic things (or, better to put it, regulate commerce more thoroughly than they do now). We would still have patents, federal bankruptcy, naturalization, weights and measures, a uniform currency, post offices (and post roads, e.g. interstates); and, of course, civil rights. Congress could enforce anti-discrimination laws, drug patents, and bankruptcy, but not, say, mandate how much water is flushed in a toilet, or ban guns near schools (oops, they can’t do that already!). The changes would be both bigger (i.e. no more FTC, DOE, DoEd, SEC, FCC) and smaller (i.e. State, DOD, most of Justice, Treasury, Fed Reserve) than you might expect at first blush. And before one claims that this will lead to social darwinism, don’t forget that we already have things like state regulation of securities (i.e. blue sky laws), state consumer protection laws, state regulation of health insurance, state roads, state schools, state labor and wage laws, and state police, and it wouldn’t be a big push to expand them. Moreover, adding things like state regulation of the airwaves and cable, or state regulation of drugs(already in place, in part), and state certification or licensing of doctors and lawyers (oops, already have that!) would not be difficult or hard to imagine. Frankly, all it would really do is shift the economic regs to the several states, letting them compete for jobs, growth, happiness, science, or whatever. It is not a libertarian amendment, but a federalist amendment – that would allow a libertarian-minded populace to have more libertarian policies if they wanted.
March 26, 2010, 3:59 pmDJR says:
The proposal doesn’t pass the laugh test.
March 26, 2010, 4:00 pmDJR says:
Spitzer,
You would also say goodbye to pretty much all federal law enforcement, including the FBI.
March 26, 2010, 4:02 pmcboldt says:
– or ban guns near schools (oops, they can’t do that already!) –
March 26, 2010, 4:07 pmYes, they can. Congress remedied the infirmity identified by SCOTUS in the Lopez case. The “improved” gun-free-school-zone act is on the books, rarely (but not NEVER) enforced, and has been upheld through at least Circuit Court decisions.
The threshold for being constitutional is “or affects” interstate commerce.
PatHMV says:
While I hate the most recent legislation on health care, I think the amendment goes far too far. I could easily see a role for the federal government in regulating (not mandating or micro-managing) the health insurance market, just as it does with banking, and for similar reasons. Right now, interstate commerce in health insurance is inhibited because of a conflicting patchwork of state regulations. While the preferred libertarian policy might be have the federal government mandate that all states allow policies to be sold in their state as long as the policies are acceptable under the laws of the insurance company’s state, that’s very unlikely to happen. Ideally, I’d like to see the feds establish a national insurance regulatory scheme WITHOUT preempting the state regulatory scheme… again, just as with banks, some of which are federally chartered and others state chartered. This language would prohibit such a course.
Also, as a practical matter, what impact would such language have on federal contractors? It would by its strict terms prohibit the government from requiring, for example, that the contractors’ employees (at least those assigned to the federal project) have health insurance.
The structural provision regarding the governors is definitely intriguing. I doubt it would be useful in practice, because rarely if ever is one party going to control 2/3rds of the governorships. But definitely a thought in the right direction. A lesser measure might be to allow a majority of governors be sufficient to require Congress to revote on a bill.
Another structural amendment to consider is one that requires (except with a 2/3rds vote for emergency matters) that all bills be laid over before final passage by 30 days, in their final form. In other words, a waiting period after all amendments are in and have been voted on, so that the public has a chance to review the final bill before the actual, final vote. While you’re at it, prohibit the “deem and pass” maneuver, too.
March 26, 2010, 4:08 pmyankee says:
I think this whole thing is actually a fascinating illustration of the extent of conservative elitism. We have endless complaints from conservatives about supposed liberal contempt for the average American, and then they turn around and say that the middle class shouldn’t even be allowed to vote.
March 26, 2010, 4:11 pmMack says:
This is redundant, and a better solution was already rejected – having senators appointed by the State (as the representatives of the State rather than as directly elected legislators).
Additionally, to the extent that the gubernatorial veto is used or threatened, it would skew to an even greater extent the already existing preponderance of power given to small and mostly rural states via the current federal representational system.
Cheers,
March 26, 2010, 4:13 pmMack
DJR says:
A question, for Randy and anyone who thinks some sort of federalism amendment is desirable:
What problem exactly are you trying to fix that could not be fixed by democratic means?
For example, if you don’t like the new health care bill, what’s wrong with the remedy that if you get a majority to repeal it, you can repeal it?
March 26, 2010, 4:13 pmcboldt says:
– and then they turn around and say that the middle class shouldn’t even be allowed to vote –
March 26, 2010, 4:16 pmMiddle class? I read the proposal as advocating the dependent class not be allowed to vote.
ZSorenson says:
So, get rid of the commerce clause and otherwise specify what congress can do. I’d say include a provision for congress to prevent interference in interstate commerce by state gov. For example, a state that subsidizes a legal monopoly that also engages in interstate commerce – congress could restrict that if they wanted.
I also think you need some tax reform. Like someone said, there’s no difference between a mandate with fines and a preferential tax break to those with health insurance. The way congress taxes must be simple and clear.
Finally, the fed can operate how it pleases, but cannot have a currency monopoly. The macroeconomics behind monetary policy have always seemed absurd. The only thing that has proven to work in terms of policy is: to inflate lots and spend or to inflate little and not. Managing the business cycle through monetary policy has not worked and should be the power of no one.
March 26, 2010, 4:17 pmMark Field says:
Guesty has the best suggestion.
March 26, 2010, 4:20 pmZSorenson says:
About democracy: we’ve degenerated into a ’50 + 1′ democracy. That’s not functional. Not when you have 49% that are diametrically opposed to the desires of the 51. And it’s not even that simple. Still, federalism is a brilliant check against 51%-ism, especially when congress isn’t. That’s what makes this proposal is desirable.
March 26, 2010, 4:22 pmRobert Bloomfield says:
IANAL,but I simply don’t understand the motivation for either part of this amendment? What is special about health insurance? Why should governors have this power?
Also, I think it is worthwhile considering businesses’ desires not to face a patchwork of regulations. I would read this amendment as meaning that states have the absolute right to regulate insurance sold to their citizens or used to pay health care within their state–no insurance across state lines unless the state wants it. I sincerely doubt that is what you want.
March 26, 2010, 4:23 pmRepeal 16-17 says:
1 – In order to get such an amendment submitted to the States for ratification, an Article V Convention would have to be called. The Congress will never pass an amendment limiting its authority.
2 – Remove Section 1. The amendment should deal with the authority of the federal and State governments in general; no one political issue should be mentioned.
3 – Write your amendment with the thought that there will be those that will intentionally misinterpret it.
4 – Reference to “Governors” should be changed to “Legislatures”.
5 – I’m very hesitant to agree with changing Article V. Such a change could lead to the Constitution being amended at least as often as the Federal Rules of Civil Procedure.
March 26, 2010, 4:27 pmcboldt says:
– Guesty has the best suggestion. –
March 26, 2010, 4:28 pmIf we’re free to repeal physical laws, I say repeal the 2nd law of thermodynamics, and in that vein, make sure the law of gravity is addressed.
DangerMouse says:
A poor person might not pay taxes and you could argue he shouldn’t get to decide how to redistribute someone else’s taxes. But it’s hard to argue that he shouldn’t get to decide whether it’s okay to put him in jail for speaking out against the government.\
That’s an understandable concern. But given the broad structural protections that already exist, it doesn’t seem that the lack of a vote would strip people of their rights in that regard. The right to vote is just incidental to the existing protections.
what if this had the result of making the electorate substantially whiter and maler–any problem with that from a substance or “optics” perspective?Why do I suspect that DangerMouse doesn’t really like the 14th, 15th or 19th amendments either?
The whiteness or maleness of the property/income voters is incidental to the broader democratic interest that those who have the most to lose should be the ones to have the most say.
However, you do provide a roadmap of the opposition: that the amendment will be attacked as racist, sexist, etc. Since libs have been crying wolf on racism and sexism for years now, and are doing it today with regards to the tea party to little effect, I see that opposition as having little force.
March 26, 2010, 4:30 pmCJColucci says:
A question, for Randy and anyone who thinks some sort of federalism amendment is desirable:
What problem exactly are you trying to fix that could not be fixed by democratic means?
For example, if you don’t like the new health care bill, what’s wrong with the remedy that if you get a majority to repeal it, you can repeal it?
The problem they are trying to fix is that their vision of federalism has been tested by “democratic means” — mainly a long line of genuinely popular laws that they don’t like and that don’t fit their vision of federalism — and people don’t want it.
March 26, 2010, 4:31 pmThales says:
At an actual constitutional convention reflecting the contemporary popular will [assuming delegate Barnett is unable to sway everyone else], the following would be more likely to be adopted:
“1. The legislative power to regulate commerce among the several States herein granted shall be construed to authorize Congress to create a national health care or health insurance entitlement or to regulate the private health insurance market.
2. Congress shall have the power to enact provisions pursuant to Section 1 of this Article of Amendment by using the taxation power granted under the Sixteenth Article of Amendment to this Constitution.”
Given that the polling reveals a clear majority for at least Obamacare (including those who support the specific legislation plus more stringent regulation, national health service, single payer, etc.), and I’m fairly sure that a strong majority of those opposed to Obamacare don’t also believe it to be unconstitutional [i.e. Professor Barnett has a distinctly minority viewpoint] why wouldn’t the foregoing be a more likely result of such a revision effort?
March 26, 2010, 4:34 pmDangerMouse says:
That’s correct. But think of it as a solution not only to dependent classes like welfare, but also for corporate subsidies like ethanol, sugar, etc. Do you think that those sort of multi-decade subsidies would exist in a system in which property-owners/income-payers would have a much more significant voice than the vocal minority that exists right now which fights for their subsidies?
March 26, 2010, 4:34 pmxon says:
My God.
Only on a Lawyer Blog would we need to solicit input on a replacement for:
“The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”
and
“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”
Of course, the shenanigans of the SC certainly call for response, but it should be enforcement, not experiment. (Kind of like the Second Am. . .)
March 26, 2010, 4:36 pmThales says:
“The whiteness or maleness of the property/income voters is incidental to the broader democratic interest that those who have the most to lose should be the ones to have the most say.”
That may be a certain kind of civic republican interest, but it is definitely not democratic (unless you define the demos to mean a distinct minority). When you say “the most” you slight that those with no or little property have their lives and liberty to lose.
March 26, 2010, 4:38 pmyankee says:
Wow, this is one of the most impressive examples of doublethink I’ve seen in a while.
WAR IS PEACE
March 26, 2010, 4:39 pmFREEDOM IS SLAVERY
OLIGARCHY IS DEMOCRACY
yankee says:
They also have the property that they do have to lose. In plutocracy, the middle class and the poor may have property rights on paper, but the rules get set up to make those rights unenforceable. If the poor get their property eminent domained away for less than fair value now, just imagine what it would be like if they didn’t even get to vote.
March 26, 2010, 4:43 pmjab says:
Health Care Reform passed with a majority in the House and a supermajority of 60 in the Senate… all this after elections in 2008 in which a president and many new senators were elected who campaigned on passing health care reform. That is democracy. All this gnashing of teeth because a law got passed that you don’t like. (Not to mention that the reform that was passed was modeled after the Republican counterproposals from the 1990′s in response to HillaryCare… you know, back then it was the Republicans who proposed the health insurance mandate for private insurance… )
Elections have consequences. You don’t like it? Campaign and elect representatives, senators and a president who will repeal it. Seriously, the GOP needs to stop with the temper tantrums and come back from the edge of the cliff.
March 26, 2010, 4:44 pmDangerMouse says:
Spoken like a true limousine liberal, who purports to value the people but has no problem enslaving them via statism. Libs never want the peasants to govern. Libs want peasants on the dole, so that the peasants’ energy is directed not towards more freedom or better conditions for individual expansion, but is instead directed towards higher welfare payments and “getting what they deserve.”
I’m not going to waste time explaining why statist programs like the healthcare bill are anti-freedom. History has proven that. Starting with the basic understanding that a large government is a dangerous government is entirely consistent with history and the American conception of the Framers. The solution towards preventing the growth of government is to empower those that the government needs in order to operate. (Hell, there’s a case to be made that treasury bondholders should have the right to vote, but I digress). We are fast approaching a system in which 51+% of the people are robbing 49% of the others. That is not a viable model for democracy and needs a solution. What do you propose to do about it?
March 26, 2010, 4:45 pmNico says:
You ought to specify a time limit on the gathering of governors’ signatures, ratifications, and so on. A period that includes one or two cycles of governorship elections for most states should do. Say, seven years.
I also would leave it to legislatures to do this, rather than governors.
Finally, I think it’d be nice if constituent assemblies were a reasonable vehicle for amendment that could be used more frequently, but, alas, they have too much freedom of action, are too hard to constrain, and since there’s not concurrent competition with any one assembly, the states would come under much pressure to ratify a flawed assembly’s output rather than start over.
March 26, 2010, 4:46 pmNico says:
Also, why stop at healthcare? And why mention insurance? The wording has to be airtight, yet simple. On the other hand, it has to be politically feasible, which is probably why you’d stop at healthcare law and not bother with other aspects of commerce (otherwise it’d be too easy to deny Congress the ability to legislate, say, minimum car pollution standards).
March 26, 2010, 4:49 pmRPT says:
Great idea! Make the income threshold $250,000! Must own a home! At least B.A. degree! There’s is no end to this game.
March 26, 2010, 4:52 pmDjDiverDan says:
Section 1 is much too specific — I much prefer the following:
I do not like Section 2 at all – State Governors should NOT have a veto over Federal Legislation, and a change to Artticle V on proposing Amendments to the Constitution is neithe necessary nor desireable. Frankly, I would much prefer a simple set of Amendments which said something along the lines of (1) When Article I of the Constitution provides for LIMITED Federal Powers, it REALLY REALLY MEANS IT. (2) The Power to regulate interstate commerce is limited to laws which directly affect some actual (not hypothetical) interstate transaction involving the transfer of goods or services across state lines, and does not extend to activities which merely “affect” interstate commerce, nor does it permit Congress to encroach upon the State’s police powers respecting purely intrastate transactions; and (3) Congress may use the Commerce Clause power to effect uniform regulatory regimes and standards for goods and services sold in interstate commerce only when (a) a substantial number of States have adopted standards or regimes which impose conflicting or inconsistent requirements upon participants in interstate commerce, AND (b) such conflicting or inconsistent standards or regimes impose a substantial burden on interstate commerce, AND (c) the enactment of a single national standard or regime is necessary to minimize such burden.
March 26, 2010, 4:53 pmNico says:
A “we really meant the 9th, 10th, 13th and 14th amendments” amendment would also do. Except that one has to write text such that the SCOTUS and Congress have a harder time weaseling broken interpretations in.
March 26, 2010, 4:53 pmyankee says:
Yeah, that’s why Sweden’s a totalitarian hellhole.
March 26, 2010, 4:53 pmGuy says:
I think I see where this is headed, let me suggest the best way to accomplish this amendment’s apparent goals:
Repeal the 16th Amendment
March 26, 2010, 4:56 pmRepeal the 17th Amendment
Repeal the Tax Clause
Repeal the General Welfare Clause
Repeal the Necessary and Proper Clause
Repeal the Commerce Clause
Repeal the 14th Amendment
Repeal the 13th Amendment
Repeal Article I
Repeal Article II
Repeal Article III
Repeal the remainder of the Constitution
Reenact the Articles of Confederation. (this last one’s optional)
DangerMouse says:
Give me a break. There is an inherent linkage between taxation and representation. This country was founded on the idea of “NO TAXATION WITHOUT REPRESENTATION.” That would be destroyed if 51% of the populace voted to tax to death the other 49%. What do you propose to do about it?
March 26, 2010, 4:57 pmDangerMouse says:
No taxation without representation. If this country will devolve into a situation in which 51% continuously steal from the 49%, then you’re only ensuring the conditions for another revolution.
March 26, 2010, 4:58 pmNico says:
The States already have the power to amend the Constitution, but only by calling constituent assemblies, which in turn could do whatever they wanted, which makes them so dangerous that they’ve never been tried. If the States could propose scope limitations on the assemblies, or propose amendment text outright that the assemblies can only vote on, then they’d be used more often. Perhaps _that_ is the change that should be made here. And it could be made by calling a constituent assembly. Perhaps Republicans should try that approach.
March 26, 2010, 4:59 pmjab says:
Well, Republicans did call HCR a “war of yankee aggression.” And as we all know, the Texas School Board passed new history requirements so that the inaugural address of Jefferson Davis and other Confeds get more equal time to counter all those Lincoln speeches.
March 26, 2010, 5:01 pmGuy says:
Why not just give each state representation in the senate equal to the size of its economy? As a resident of California I would support such a measure.
March 26, 2010, 5:02 pmDangerMouse says:
I’ve thought about that. But is there anything which requires such a constitutional convention to be so open-ended to begin with? Why can’t the states call a constitutional convention only to consider a limited question? It’s likely that any attempt to go beyond the scope of the convention would fail, because states wouldn’t ratify the changes in that case.
March 26, 2010, 5:02 pmjab says:
Yes, please… more of this talk… and get your Republican senators, representatives, and governors to talk more about open rebellion… please, sir, more of it!
March 26, 2010, 5:03 pmKen Arromdee says:
Not being jailed for speaking out against the government is an example, and not everything is as well-protected as the example. Suppose the poor person wants a legally recognized same-sex marriage? Why shouldn’t he be able to vote for someone who promises to make that the law? And even the rights that are protected may not be protected at the margins. Suppose the guy’s black and living in an area where the police like to harass blacks? Shouldn’t you let him vote for a mayor that wants to clean up the police?
March 26, 2010, 5:06 pmyankee says:
No taxation without representation =/= no representation without taxation. Try again.
The rich are amply represented by their bought-and-paid-for Congress.
March 26, 2010, 5:08 pmJB says:
If I’m not mistaken, wasn’t giving a veto power to states expressly rejected in the Constitutional Convention? The first part seems like a standard originalist rejection of the current interpretation of the Commerce Clause, but the second part just seems out of place. I think it’s interesting, though.
March 26, 2010, 5:10 pmarch1 says:
Guesty, re: “Section 3: Pi = 3.”-
Yikes, this is a tad ambiguous. Are you proposing that “3″ henceforth denote the transcendental number 3.141…? That “pi” denote the number 3? That they both denote some other number, and if so, did you have a specific number in mind, and if so what is that number?
Or is this a law about numbers not numerals, and if so are you proposing that everyone be required to act as if the number of Little Pigs was 3.141.., or act as if all circles were warped such that their circumference/diameter ratio is 3, or to act as if both of these are unspecified but definitely equal so that e.g. my youngest must be taught Circumference = (num Little Pigs) * Diameter (and must her elders be reeducated?)?
Or is this a proposal to change the meaning of “=” such that Pi = 3 becomes true, and if so what is the new meaning? Is it “Not equal”? “Greater than”? “Equal when truncated toward 0 to the nearest integer”? “same as before, unless left operand is Pi and right operand is not a wall clock in which case the new meaning is ‘Neither the left nor right operand is a radical environmentalist’”? Etc.
Depending on your answers to the above, we next come to a set of questions about Section 3′s reflexive applicability…
March 26, 2010, 5:11 pmChrisTS says:
RPT says:
Wouldn’t it be easier to just start moving the laws so that those people simply cannot own property at all? Worked for suppressing women for a very long time.
March 26, 2010, 5:13 pmDangerMouse says:
Well, I’m open to ideas. I think that a statist government necessarily requires an enervated populace devoted towards taxing the producers to death. I’m not convinced that amendments directing Courts to “construe” words are productive, nor do I believe that defining words in the Constitution will work since the Court already disregards plain meaning of words for its own ends. Do you have any better idea for protecting freedom, protecting people from being taxed to death, regulating the hell out of people, and structurally preventing Congress from overspending and putting the country into endless debt?
A situation that cannot continue will not continue. The gravy train is over because of the debt crisis. This political reform is all designed to stave off much worse consequences, as those with a historical background will understand. Or are you fine living in a world in which America defaults on its debt and the entire system goes belly-up?
March 26, 2010, 5:18 pmBrian John Murphy says:
Let’s leave the amendment of the Constitution as difficult as it now is. I would fear this amendment if there were ever that many Democrat governors. This clause in effect makes the governors a super-legislative house. How would they convene? How would the vote be handled? Who would keep a journal of their proceedings?
Unfortunately, the era in which a difficult question could be settled by a few deft phrases in a constitutional amendment is long gone. Unless the amendment in question anticipates all the possible ways it can be twisted, the courts will seize on the faintest penumbra of meaning to write broad, society-altering legislation from the bench.
March 26, 2010, 5:21 pmSteve says:
Libs want peasants on the dole, so that the peasants’ energy is directed not towards more freedom or better conditions for individual expansion, but is instead directed towards higher welfare payments and “getting what they deserve.”
This is classic. Once we finally free the peasants from the burden imposed by participatory democracy, they will finally be free to better themselves!
The real humor lies in the belief that, notwithstanding the billions of dollars spent by corporate America on lobbying each and every year, it’s really the underclass that persists in trying to enrich themselves at public expense.
March 26, 2010, 5:22 pmTimothy Sandefur says:
I’m quite troubled by the wording of your section 2, which if it were ever enacted, would signal a radical transformation in the nature of the federal union. But I’m curious to begin with why the “governors” of the states should be given this power? Why not the legislatures of the states?
March 26, 2010, 5:22 pmcboldt says:
– Or are you fine living in a world in which America defaults on its debt and the entire system goes belly-up? –
March 26, 2010, 5:22 pmLOL. As if “we” have control over that! I’m not “fine” with hurricanes, floods or tornadoes ripping up my stuff, but the only sensible action to take is preparation.
Sit back, relax, and let the mandarin wizards work their magic.
Thales says:
DangerMouse is awfully worried about oppression of the rich by the poor–this in a country where the Gini coefficient is the highest in the industrialized democratic world. I realize that all free people rightly worry about tyrannies of majorities or minorities, but is U.S. progressive income taxation and quite mild (again by the standards of industrial democracies) redistribution really the biggest threat to your freedom, Dangermouse? What about a runaway military clearly way out of step with anything reasonably called “the common defense” or near-corporate ownership of Congress?
March 26, 2010, 5:22 pmfirst history says:
Limit the right to vote to only those who posess property or have sufficient income. That’s the way it was during the Framers’ time, and it will have the effect of avoiding word games with libs on the court, while serving to combat ambition with ambition by ensuring that those who will suffer from robbery will only be those who would elect the robbers.
If we are going back to the Framers, let’s limit the vote to white male property owners. This country has gone downhill ever since the 19th Amendment.
March 26, 2010, 5:23 pmDangerMouse says:
Read what I said earlier about how corporate subsidies are part and parcel of a statist system that should find less support if those who are taxed have more of a say.
March 26, 2010, 5:25 pmDangerMouse says:
What about a runaway military clearly way out of step with anything reasonably called “the common defense” or near-corporate ownership of Congress?
Corporate “ownership” of Congress (and the military-industrial complex) is a byproduct of statism. If the state had less control over the life and direction of corporations, there would not be a need for such influence. A smaller government is a government less bribed.
I’m open to other alternatives aside from voting qualifications, but what else is there? Any attempt to describe the meaning of words in a Constitution is going to fail against lib judges. You need a structural change. What else is there?
March 26, 2010, 5:30 pmSteve says:
Read what I said earlier about how corporate subsidies are part and parcel of a statist system that should find less support if those who are taxed have more of a say.
Yes, of course, it’s only the existence of a voting underclass that keeps those subsidies intact.
March 26, 2010, 5:31 pmGuy says:
Btw, section 2 is a perfect formula for a legislative ping-pong game. Pass-rescind-pass-rescind…
March 26, 2010, 5:31 pmanomdebus says:
DM,
March 26, 2010, 5:34 pmIf I could change only one thing, it may be to change the winner takes all voting system that encourages two party rule. For all of the talk of how different the two parties are, they are way too similar.
Otis says:
Wouldn’t it be simpler to repeal the 17th Amendment?
March 26, 2010, 5:34 pmWouldn’t that accomplish more?
DangerMouse says:
Ken, of course that’s all important. Maybe the answer is as simple as repealing the 16th amendment and replacing it with a Prohibition on income and certain other taxes, so that the tendency towards statism is significantly hampered by “starving the beast.” Of course, in that case you’d also have to have a structural limit in printing debt. “No representation without taxation” can be fixed by changing the structure of representation, or the structure of taxation. Would you support replacing the 16th amendment with an active prohibition on many of the powers of taxation?
March 26, 2010, 5:36 pmThales says:
“first history says:
Limit the right to vote to only those who posess property or have sufficient income. That’s the way it was during the Framers’ time, and it will have the effect of avoiding word games with libs on the court, while serving to combat ambition with ambition by ensuring that those who will suffer from robbery will only be those who would elect the robbers.
If we are going back to the Framers, let’s limit the vote to white male property owners. This country has gone downhill ever since the 19th Amendment.”
Yeah, but what happens to all of the freed slaves and their descendants? Do we un-do the Civil War and the Reconstruction amendments or just take the more moderate step of leaving the “peculiar institution” up to the states? It worked for the first 160 years or so . . .
In seriousness, I’d note that the generation of Framers and ratifiers were famously progressive (for the time) in setting qualifications for delegates to the ratification conventions–maybe they were on to something even then . . . for more details see Akhil Amar’s chapter on the Preamble in his America’s Constitution: a Biography.
March 26, 2010, 5:44 pmThales says:
Dangermouse: Wasn’t the country as a whole significantly *more* statist when the states had significantly more rights (in that actual enslavement of human beings was permitted in no less than half the country, and then near-enslavement was permitted for most of the history until the modern civil rights movement)? Doesn’t your position reduce to the rather awkward proposition that America was really only truly free for the brief period when radical Republicans dominated after the Civil War but before southern retrenchment and the rise of populism/progressivism (and weren’t the radical Republicans really antithetical to much of what you stand for?)
March 26, 2010, 5:48 pmDon says:
The 18th amendment of the constitution shows how much the “commerce clause” has been perverted over the years. (For those of you who don’t remember, the 18th amendment is Prohibition). Even though distilleries, breweries and wineries even then clearly operated across state borders, it still took a constitutional amendment in order for it to be regulated.
Today, though, under the “Commerce Clause” jurisprudence, at least as I as a lay person understand it, that the Government of the United States could pass and enforce the Volstead act without the 18th amendment, thus making both the 18th and 21st amendments (repeal of the 18th) an historical anachronism, since as I understand it, given the current interpretation of the commerce clause, the Governrnment of the United States could do this, anyway, since this is “interstate commerce”.
Am I missing something, or in the space of less than 100 hundred years has constitutional jurisprudence really changed that much, and what does that mean for the state of the consititution in another 100 years?
I hate to admit it, but it scares me.
March 26, 2010, 5:48 pmJeffrey Simno says:
Re: Section 1
Ridiculous to have an amendment focused solely on the health care law. In my opinion, the problem is not the government in health care; the problem is the government breaking the Constitution (via the Commerce Clause) to get into health care. We need to have an amendment that stops Congress from manipulating the Commerce Clause to extend the reach of their power beyond the Constitution’s original intent. May I suggest the Freedom of Autonomy Amendment below.
Re: Section 2
2/3′s of the Governors is way too small a number and would result in states with the largest populations being unfairly controlled by the more plentiful small states. It would have to be 3/4′s of the Governors.
Proposed Constitutional Amendment:
FREEDOM OF AUTONOMY
Congress shall make no law mandating, regulating, or prohibiting the right of the people willfully to engage in or willfully to abstain from activities that do not directly cause harm.
March 26, 2010, 5:49 pmDangerMouse says:
Today, though, under the “Commerce Clause” jurisprudence, at least as I as a lay person understand it, that the Government of the United States could pass and enforce the Volstead act without the 18th amendment, thus making both the 18th and 21st amendments (repeal of the 18th) an historical anachronism, since as I understand it, given the current interpretation of the commerce clause, the Governrnment of the United States could do this, anyway, since this is “interstate commerce”.
Don, I’ve said this many times. Yes, you’re right. Current understanding of commerce clause jurpsirudence is DESIGNED to make statist Constitutional amendments like the 18th Amendment unnecessary. That is ENTIRELY the point.
March 26, 2010, 5:54 pmDanube of Thought says:
I would strike this clause from Section 2:
they may rescind any law or regulation of the United States, or
I would do so simply in the interest of increasing the likelihood of getting the amendment passed. If it were passed, then perhaps two-thirds of the governors might at some point propose an amendment empowering them to rescind US laws and regulations.
March 26, 2010, 5:56 pmAnym_Avey says:
You mean to say the founders were unaware of the Honourable East India Company?
March 26, 2010, 5:56 pmGuy says:
This supports what has been my view of the situation all along- most opponents of the health care bill who raise Constitutional objections are really making a substantive due process argument, not a commerce clause argument. Setting aside the difficulty of determining what constitutes a “direct” harm, or possibly even an “activity”, I see no reason why such an amendment should restrict the federal government but not the states.
March 26, 2010, 5:57 pmRandy Barnett says:
Thanks for all the comments. They were very useful.
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