Amendment Unmended

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.?

18 Responses to Amendment Unmended

  1. Black Bloke April 23, 2009 at 3:17 pm #

    “The world has never had a good definition of the word liberty, and the American people, just now, are much in want of one. We all declare for liberty; but in using the same word we do not all mean the same thing. With some the word liberty may mean for each man to do as he pleases with himself, and the product of his labor; while with others the same word may mean for some men to do as they please with other men, and the product of other men’s labor. Here are two, not only different, but incompatable things, called by the same name-liberty. And it follows that each of the things is, by the respective parties, called by two different and incompatable names-liberty and tyranny.”—Abraham Lincoln, Baltimore address, April 18th 1864.

    I figured that Randy would’ve foreseen this issue and proposed his polycentric legal order idea to address it. I suppose writing for the WSJ means he’ll have to check his black flag at the door. It seems that the first one would demand an examination of unenumerated rights. But then again the 9th amendment already calls for an examination of unenumerated rights and that hasn’t been worth a damn.

    Section 2 seems to do nothing more than reiterate the plain meaning of the federal government’s powers as defined by the constitution and the 10th amendment’s prohibition, but at least this is somewhat stronger than some judicial precedent declaring just that. Of course this is in the end meaningless as this will be re-interpreted by future power grabbers, as we have seen so clearly in the case of the US.

    Section 3 seems to demand that the American government perpetually plunder the American people for obligations made by their forebears. This means permanent world empire I guess.

  2. Keith Preston April 23, 2009 at 8:07 pm #

    I’m quite sure the Federalism Amendment will be about as successful as the Balanced Budget Amendment, Equal Rights Amendment, Human Life Amendment, ad nauseum. It ain’t gonna happen. Why not simply advocate secession instead?

  3. Robert Paul April 23, 2009 at 9:11 pm #

    At best, this would slow down the descent. I suppose there comes a time for all radicals when it’s difficult to be enthusiastic about any measure like this.

  4. Logan April 23, 2009 at 9:29 pm #

    What a confusing amendment. Why not just amend Article I, Section 8 to restore federalism. Here’s how to do it:

    Article 1. Amend Article I, Section 8 of the Constitution to read as follows:

    The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States only what is expressly enumerated in the remainder of this section; but all Duties, Imposts and Excises shall be uniform throughout the United States;

    To borrow money on the credit of the United States;

    To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

    To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;

    To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;

    To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;

    To establish Post Offices and Post Roads;

    To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;

    To constitute Tribunals inferior to the supreme Court;

    To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;

    To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

    To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;

    To provide and maintain a Navy;

    To make Rules for the Government and Regulation of the land and naval Forces;

    To provide for calling forth the Militia to execute the Laws of the Unionsuppress Insurrections and repel Invasions;

    To provide for calling forth the Militia to suppress Insurrections, except in the case of a State proposing and approving a motion for secession from the United States according to their own laws;

    To provide for organizing, arming, and disciplining the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;

    To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings; And

    To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

    Article 2. States, as sovereign powers, have the right to approve a motion of secession according to the laws of that State; upon approving a motion of secession, a State is no longer subject to the laws of the United States and is regarded as a foreign Nation; any foreign Nation is allowed to join in union with the United States upon approval of both the United States and the foreign Nation.

    The changes in Article I, Section 8 would limit the United States government to basic military protection of enemies foreign and domestic. Nothing left in the revised section would give the federal government any justification in regulating domestic matters or economic matters. I revised the Insurrections part to exclude a lawful secession from being defined an Insurrection. Article 2 defines the right of secession and provide for annexation in case a State decides to re-enter the United States.

  5. Sheldon Richman April 24, 2009 at 6:30 am #

    “…the 10th amendment’s provision that Congress is denied whatever power is not explicitly granted. ”

    I have to take issue with the word “explicitly.” When the Amendment was being debated in Congress, someone proposed that the word “expressly be inserted before “delegated,” so that powers had to be expressly delegated to the U.S. government for them to be denied to the states. Madison objected to the addition on grounds that any constitution must have “powers by implication.” Congress agreed with him. In contrast, the Articles of Confederation did use the construction “expressly delegated.” The constitutional historian Crosskey argues that the Constitution was always intended to make a general grant of power to the national government and that the addition of the Tenth A. changed nothing.

    Re Barnett, he’s wrong to think that repealing the 16th A. would mean incomes cannot be taxed. The Supreme Court has never said that taxing wages and salaries is unconstitutional. In fact, in the 1895 Pollock case, it said the opposite.

  6. Sheldon Richman April 24, 2009 at 9:25 am #

    P.S.: “Power To lay and collect Taxes, Duties, Imposts and Excises, to … provide for the common Defence and general Welfare.” It doesn’t get any more plenary than that!

  7. Anon73 April 24, 2009 at 10:49 am #

    If anybody deserves a time machine it’s clearly Logan!

    • Roderick April 24, 2009 at 3:23 pm #

      Ah, yes — Logan.

      • Logan 6 April 24, 2009 at 4:13 pm #

        Don’t make me come after you Runners (from lawful government authority :-p)

        If I had a time machine, I’d go back as Aaron Burr 1 and save the country a good deal of trouble 🙂

  8. Black Bloke April 26, 2009 at 9:23 am #

    Are regular commenters allowed to put pictures in their posts?

    • Roderick April 26, 2009 at 11:48 am #

      As far as I know, anyone can. Though I don’t know whether you can do it directly. I do it indirectly, by putting in an “img src” link.

    • Brandon April 26, 2009 at 2:17 pm #

      You can do anything in a comment you want, including add images, youtube clips, text styling, blockquotes, whatever.
      Just insert the HTML yourself. If it doesn’t work, let me know and I’ll address it at that time.

  9. Robert Paul April 26, 2009 at 3:07 pm #

    You can do anything in a comment you want, including add images, youtube clips, text styling, blockquotes, whatever.
    Just insert the HTML yourself. If it doesn’t work, let me know and I’ll address it at that time.

    Great. OT, but what’s the best way to follow different threads? (I use the Recent Comments list now.)

    • Brandon April 26, 2009 at 3:31 pm #

      Well, that’s what that widget is for. There’s no objective “best” way to follow threads. If you want to use RSS, you can find the RSS comments feed link on every post page (just scroll up to see the one for this post).

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