Randy Barnett proposes a new amendment to the Constitution. (Conical hat tip to Tom Ford.) But I don’t like it. In particular, although it has federalist intentions, it seems to me that sections 1 and 5 might actually expand federal power.
Section 1 seems to grant Congress the power to do whatever is not prohibited, reversing the 10th amendment’s provision that Congress is denied whatever power is not explicitly granted.
And section 5’s granting the federal judiciary the right to “nullify any prohibition or unreasonable regulation of a rightful exercise of liberty” sounds great if it’s going to be interpreted by libertarian judges, but otherwise who knows what statist judges might regard as a “rightful exercise of liberty” – perhaps the right of electoral majorities to exercise their “liberty” to guarantee that their towns be “free” of guns, drugs, cigarettes, porn, immigrants, ugly buildings, etc.?