Bill of Federalism is here!

Geek that I am, I sometimes outline ideas for a Constitution that follows my beliefs about government.  Usually, I just end up tossing it away after a day or two because I quickly realize that no piece of paper, however self-consistent and respected by society, can truly arrest the creep of corporation and state power over the functions of force in society.  The people must do that, constantly and vigilantly.

Randy Barnett over at Forbes has drawn up a "Bill of Federalism," 10 proposed Constitutional amendments that he would like the states to convene to ratify.  Some thoughts:

Amendment 1: Limit the taxing powers of Congress to a flat sales tax.  I love it.  Economists are not unanimous about this, but in general it's a better idea to tax things at consumption rather than production - it increases savings (and therefore investment) and can really help to avoid the kind of debt hole we are currently letting our government dig us deeper into.  I would be very very careful about defining "uniform tax" and "sales" to prevent loopholing as much as possible.  The amendment also creates a necessity for a 60% vote of both houses for any tax or duty increase.  Again, this is just a great idea - although I would have started at 2/3rds and let the bastards negotiate it down.  This wouldn't work at all without Amendment 8 below though, and probably A3 as well.

A2: This amendment appears to be attempting to limit the uses and abuses of the Commerce Clause.  I am not really sure the wording here would do the job.  I think the Commerce Clause should be revoked in favor of a Commerce Court under the judiciary - so states can sue each other over, say, sulphur emissions floating downwind or contaminated produce being shipped in, but the Federal government cannot actively regulate.  Unfortunately, Eisenhower did a great disservice to the Commerce Clause by using it as an excuse to de-segregate the South... instead of having the chutzpah to just do it on humanitarian grounds.  Now its meaning is continually stretched to include intra-state commerce that might affect market prices and other ridiculousities; all without consent of the states being "protected."

A3:  This one seems to be aimed at getting rid of "strings attached" federal grants to states, but in reality it is aimed at significantly reducing federal grants to states.  This is a Good Thing - states that are financially dependent on the federal government are not federalist states.

A4:  Tries to stop the government from entering into treaties that enlarge the power of the government.  This amendment has no teeth in my opinion.  I don't see what is to stop the legislature from ratifying a treaty and simultaneously passing a bill that increases its powers or some-such.  If you want include a check on federal power, change the ratification process so that treaties must be ratified by 2/3rds of state legislatures.

A5:  Extends freedom of speech to campaign contributions.  It won't be popular among the Republicrat party heads, because campaign finance laws are how they make sure 3rd parties never get a foothold.  I like it nonetheless, and we might just have enough independent voters out there to make it real.

A6:  Grants state legislatures the ability to rescind federal law by a majority vote of 75%. The idea of states having direct power over national law is a good one.  However, it's almost unheard of for the states to form even a constitutional convention, never mind getting together to unseat a federal law.  If you want state review of federal laws, then it might be a better idea to make this the province of governors of states rather than legislatures.  The strength of the legislature approach is that governors are few and easy to corrupt, whereas even the most spendthrift congress probably can't get a check to every one of the thousands of state legislator and senators.  Or, why not go straight to the people with the California model?  We have the technology to put national iniatives on the ballot, why not make it a popular vote?  With no ability to create law, only to rescind it, I would support this.

A7:  Term limits for Congress (sky opens, choir of angels sings "Hallelujah")!  Our government is run by politicians and lawyers, not citizens.  This is bad for, pretty much, everyone except the politicians and lawyers.  Make the bastards find a real job, or at least change  jobs.

A8:  Balanced budget amendment.  The technical problem with a balanced budget amendment is that there is no way for the congress to know how much revenue will come in for a given year due to business cycles and other factors.   This amendment defines deficit, and gives the president a stick - a line-item veto for the next year.  This is self-defeatism dressed in the clothing of checks and balances.  If the president allows congress to run a deficit, he gets more power.  It essentially puts the power to balance the budget in the hands of the president, but not the incentive to do so.  I'm not sure what do to about this - perhaps the debt from one year should be constitutionally required to be an untouchable budget item for the next year.  Or, the president should be ineligible for re-election if his first term saw 2 or more years of deficits.

A9:  Section 1 is feel-goody libertarianese with little teeth.  Section 2 is a beautiful thing: it explicitly legalizes jury nullification.  This needs to happen.  I would be somewhat concerned that it would just lead to dumber juries; but adding a clause that juries must be informed of their powers granted by this amendment before trial would help.

A10:    It basically says that the constitution must be interpreted according to its meaning at enactment.  This is another toothless amendment, but it may be useful in decisions.  By which I mean, I could see this being totally ignored by most judges, but I can also see it being wielded as a catch-all argument for the strict constructionist side, kind of like an anti-commerce clause.  The Supreme Court pretty much acted according to this until about 1937, and since then it has been activist.  Codifying the conduct of federal judges probably won't help a whole lot, but it can't hurt.

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