How Do You Like Greg Abbott's New, Improved Constitution?
The Texas governor suggests nine amendments "to restore the rule of law."
Last week Texas Gov. Greg Abbott proposed nine constitutional amendments "to restore the rule of law." I am not convinced that all of them would have that effect, but there is some good stuff in there, from both a constitutionalist and a libertarian perspective.
I particularly like Abbott's first idea: an amendment that would "prohibit Congress from regulating activity that occurs wholly within one State," which promises to restore the original understanding of the federal government's power to regulate interstate commerce. To be a fit subject of federal legislation under that power, Abbott argues in a 92-page position statement that draws heavily on the work of libertarian law professor Randy Barnett, an activity should be both "interstate" and "commerce" (meaning the trade or exchange of goods). Instead the Supreme Court has transformed the Commerce Clause into a license for pretty much anything Congress wants to do, as long as it is arguably related in some way to the national economy.
Among other things, the Court has ruled that the Commerce Clause authorizes the federal government to punish a farmer for growing wheat for his own use on his own land and to seize homegrown marijuana from patients who use it to treat their symptoms, even when such use is permitted by state law. "What constitutional provision conceivably could allow federal agents to raid a home and destroy plants that were planted, grown, and consumed inside the borders of one State and in accordance with that State's law?" Abbott asks. Although he does not say so explicitly, the upshot of his argument is that federal prohibition—not just of marijuana but of cocaine, heroin, LSD, lawn darts, "assault weapons," or "partial birth" abortion—is unconstitutional insofar as it extends to purely intrastate activity.
Abbott also wants to "restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution." Since the Supreme Court already supposedly follows that rule, I'm not sure how effective saying it again would be. The problem is that, as with the Commerce Clause, the Court has stretched the scope of those expressly delegated powers beyond all recognition.
Partly in response to that danger, Abbott suggests an amendment that would "allow a two-thirds majority of the States to override a U.S. Supreme Court decision." His proposed requirements for overturning a Supreme Court decision would be significantly easier to meet than the requirements for amending the Constitution. From a libertarian perspective, that "safeguard" could easily create more problems than it would solve, allowing a tyrannical majority to run roughshod over individual rights. It is hardly reassuring that two of Abbott's examples of jurisprudence that needs to be democratically reversed involve protecting freedom of speech and imposing a (mostly ineffectual) proportionality requirement on criminal punishment. The third example is the Court's endorsement of using eminent domain to transfer property from one private owner to another, which was both antilibertarian and genuinely unpopular.
I see similar problems with Abbott's proposal to "require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law." Decisions that would have been invalid under that requirement include important rulings protecting freedom of speech, the right to arms, property rights, and even the federalist principles that Abbott wants to uphold. If the Court cannot make the Constitution stick in cases like these, who will?