Commerce Clause

How Do You Like Greg Abbott's New, Improved Constitution?

The Texas governor suggests nine amendments "to restore the rule of law."


Gage Skidmore / Flickr

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?

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  1. No term limits – seriously?

    1. Term limits would transfer more power to unelected bureaucrats and staffers. Also, I should be able to vote for anybody I want.
      I think fixing the redistricting process to make districts more competitive is a better answer.

      1. Perhaps. Note that legislators in FL cannot be drug tested because it would interfere with the will of the voters. Fuck their power. No Rep has to rely on them. They just almost always choose to.

      2. Term limits would transfer more power to unelected bureaucrats and staffers. Also, I should be able to vote for anybody I want.

        ^This. Term limits are one of the most cited bad ideas.

        1. I didn’t think so until watching a ton of Yes, Minister and The Thick of It. Civil service bureaucracy is insidious and powerful.

      3. Single district in every state with stv voting!

        Although afmittedly, filling out a ballot in CA would be a burden.

      4. You can already vote for anybody you want, whether they’re eligible for the office or not.

    2. No term limits sunsetting – seriously?

      Nothing says founding principles like requiring them to be transmuted every couple decades because 1% of the population forgets attend a college like an adult or how to bear arms in any way shape or form without shitting their pants.

    3. I’m really only familiar with CA’s term limits, but they don’t work worth a damn here. You have the same assholes running all the time, they just move from job to job. From the day they are elected to one position they start looking for their next one so they never pay any attention to the job they were actually elected to do. It’s worse than it was before.

      Also, how are term limits consistent with the concept of free speech?

      1. What does eligibility for an office have to do w freedom of speech?

        1. Everything?

    4. Here’s a term limit: sortition. People who want power are the people who should least have it.

    5. Term limits on bureaucrats, then.

  2. 5 and 9 could be done by repealing the 17A.

    1. Why do you hate democracy?

      1. Because democracy is two wolves and a sheep voting on what’s for dinner?

    2. 5 and 9 only adds up to 14, moron.

      1. $14 million, you fool! #feelTheBern #powerball

    3. Maybe. Could a state legislature recall a senator because they didn’t like his vote?

  3. We can make as many amendments as we want that explicitly say “The Constitution means exactly what it says, in plain language”, but that doesn’t mean anyone in SCOTUS, Congress or the White House will care.

    1. This, of course. “Congress shall make no law” should have ruled out slander and libel laws, and the fact that President Adams and his Congress passed the Alien and Sedition act just ten years later is pretty good proof that the weasel words started right away. I could understand saying “Congress shall make no law” didn’t apply to the states, but the Second Amendment is explicitly different: How can “Shall not be infringed” not apply to states, and how can it allow any gun-specific regulation at all?

      Roberts contributed his own penaltax workaround. The only possible solution is bottom-up repeal of laws, by citizen lawsuits tried by citizen juries. Got to keep politicians out of it entirely, except for the defense lawyers.

    2. Pretty much this. They no longer give two shits what the words on some old page of parchment say. Hell, they don’t even care what legislation actually says. How else do you explain the King v Burwell desision? Apparently explicitly stating that the subsidies would only be available on exchanges established “by the State under Section 1311,” which only deals with exchanges established by state governments is just a “drafting error,” and that they must have really meant to include the federal exchange as well.

      They’re just making shit up as they go along at this point. Rule of law? How quaint.

      1. Agree. That decision was a nut punch.

        1. Not if you read the parts of it in context w each other.

    3. but that doesn’t mean anyone in SCOTUS, Congress or the White House will care

      Amendment 28- Violations

      If any bill is passed into law and subsequently found to be unconstitutional, each and every legislator who voted for said law and the Chief Executive signing it into law shall be immediately burned alive at the stake in the public square.

      Two birds, one stone. Constitutional teeth AND term limits all rolled up into one.

      Seriously though, the failure of our constitution is the lack of a process to provide legal punishment for violators.

      1. The only effect of such a law would be that no law would be found unconstitutional. Just like impeachment, it’s far too drastic for the anything approaching the daily usage it needs.

        The only solution I can think of, or the closest to it, is to allow citizen lawsuits over unconstitutional laws, to be decided by juries alone. Got to keep the professional politicians entirely out of it, except of course for the government’s defense of the challenged law. No judge. No appeal to judge courts.

        It has to be easier to repeal laws than create them.

        As much as I would like to punish legislators who vote for laws found unconstitutional, it’s like impeachment — too drastic. I want challenging laws to be an every day occurrence, for legislators to fret over passing proper laws after proper research, investigation, and debate. I don’t want the politics of impeachment getting in the way.

      1. Wait – Costello was the fat one, Abbot was the thin one.

        1. No, Who’s on first and What’s on second.

          1. I don’t give a darn.

          2. Can you tell me the name of the pitcher ?

            1. Tomorrow

              1. Hey, What’s the big idea, pal?

    1. The one who’s downtown. They made a show about him.

  4. 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.”

    Yeah, I really don’t think what the state is missing is more majoritarianism.

    1. I’ve been pondering an amendment that bans congressional earmarks. In other words, all congress can do is fund an agency and set its priorities. Then it’s up to the agency to decide where and how to spend that money.

      It seems like it would be good because then no one would be able to explicitly bring home the bacon to their district/state. I know that earmarks only account for ~1% of spending. But how much of the rest only passes because Senator A got paid with an earmark? Has anyone studied this?

      1. This was supposed to be a leftmost comment…

      2. I’ve been pondering an amendment that bans congressional earmarks. In other words, all congress can do is fund an agency and set its priorities. Then it’s up to the agency to decide where and how to spend that money.

        The opposite seems wiser to me. Everyone’s vote is on record for exactly where every dime is going to get spent, and no bureaucrats have opportunities to set policy. Congress has gotten far too used to hiding behind executive agencies instead of taking responsibility for making law themselves.

      3. Your earmark amendment would fail because it would put all fundamental spending decisions in the hands of the executive branch which would in the long run fall under the control of one guy.

        Imagine President Sanders solely in control of the priorities of the BLM or EPA. If you cut funds to the agency in an attempt to limit harm the executive would simply then use the agency to punish political enemies. National parks would be closed so ranchers could be persecuted. Even gridlock is better than this.

  5. The amendments which reaffirm the existing constitution are a sucker’s game – they’re unlikely to pass 2/3 of Congress and 3/4 of the states, and when they fail the establishment can say, “see? The people reject these extremist proposals!”

    As to making the Supreme Court defer more to popular majorities – that’s not the problem. The problem is that the court is activist in both directions – upholding unconstitutional laws as well as striking down constitutional ones.

    1. There is only one amendment that need be considered at this time (I would go for repealing at least one also). And that would be to fix the only real problem I see with the constitution, it has no teeth. I say give it some bicuspids, canines, and molars in a very simple yet clear (as clear as these things can be, see above comments) clause. It would essentially boil down to (word smithing needed of course):

      “If you violate, attempt to violate, or propose the violation of any part of the constitution and 1/5th of the States legislatures agree then you are stripped of office immediately and may never hold Federal elected nor appointed position nor employment ever again. Our FYTW!”

      1. Hmm. I like it, but I think it needs more woodchippers.

        1. “We don’t call it the Executive Branch for nothing.”

          1. “We changed it to the Terminative Branch after the Censor’s Office replaced the Presidency”

          2. “We don’t call it the Executive Branch for nothing.”


        2. 1/3 of state houses can impose woodchipper rider.

  6. His ten gallon hat is full of statist bullshit. Courts have already twisted the plain language of the Constitution into knots and would do the same with the good parts of his amendments. His proposals for states to override the Supreme Court and to require a Supreme Court super majority to invalidate a law, are the exact opposite of what is needed — as Heinlein said, it should be easier to repeal laws than pass them.

    What I would do is provide some way for states to repeal federal laws, not Supreme Court decisions, and some way for ordinary citizen lawsuits challenging any action by their governments. If you live within the jurisdiction, you have standing. The big problem with citizen lawsuits is the flood of nonsense that would result, but loser pays, with bonds required, might solve that problem.

    But nothing will happen. It’s like those idiots who think a misplaced comma invalidates the income tax amendment, or that a subpoena with their name in ALL CAPS is not their name. The politicians will never approve anything which dismantles 99% of the State at a stroke. Even if all 9 amendments were somehow approved by a constitutional convention, the Supreme Court would take years to to stall cases before eventually finding some weasel word workaround. If Obamacare is both a penalty and a tax while simultaneously being neither, 9 more amendments would be child’s play for committed statists.

    1. Like someone said above, have Senators appointed by state legislators again, repealing the 17th Amendment.

      Choose Senators to represent the states *qua* states.

      1. There needs to be an independent mechanism for repealing federal laws by states as states. It’s all too easy for federal Senators to be captured by Washington, and a recall by the home state legislature is like impeachment — far too drastic a punishment to be used as often as it should be. This state oversight of federal actions needs to be much more fine-grained, down to the individual law level.

        1. Yes, there is a simple way: repeal the 17th amendment and allow states to decide which senators represent them.

          1. Again: that is far too broad a power. There needs to be some fine-grained way of repealing individual laws. When the only tool is removal from office a la impeachment, it will only be used rarely.

            1. There needs to be some fine-grained way of repealing individual laws.

              Or a way to ensure new laws are only kept if they serve a vital function and are easily understood by legislators, courts, juries, etc.:

              1. Require a 2/3rds majority in Congress to enact new laws.

              2. Require new laws to be under a certain length, in plain language, and not span contexts/subjects.

              3. Force all past, present, and future laws to expire a certain amount of time after their enactment, with a re-authorization process that does not allow amendments to the existing law.

              4. Any court ruling against a law automatically sunsets it without possible re-authorization, and puts a hold on any similar laws for at least one Congressional term.

              1. But again, you are depending on the courts to enforce such provisions, and they have shown they will go to extraordinary lengths to validate laws they like. The only solution is devolving ultimate repeal authority down to citizen lawsuits judged by juries alone.

                1. They go to extraordinary lengths to validate laws they don’t even like. You think Roberts is a fan of Obamacare? No, but limiting state power would set a bad precedent, so he rewrote it ad hoc.

        2. Don’t be so proud of this technological terror you have created Scarecrow. Th ability to destroy a country is insignificant compared to the power of the Statist force.

    2. Writing amendments aimed at limiting government power is like making wishes from a malevolent genie. Even if you are very careful in your wording, you’re still probably going to get screwed.

      1. “Do you really think I asked the genie for a 12 inch *pianist*?”

      2. This dude walks into a bar and orders a beer. He comments about the lack of entertainment, no jukebox or television, so the bartender pulls a box out from behind the bar. He opens it and there’s this little dude, a foot tall, and a miniature piano which he proceeds to play. The customer is amazed and asks where it came from, so the bartender pulls out a lamp from behind the bar. As the customer cleans off some smudges, a genie appears. In a booming voice it offers the customer a wish. After thinking about it the customer asks for a million bucks. The genie disappears, and suddenly there is an awful noise as a million ducks start falling from the sky and piling up against the windows of the bar. The customer asks the bartender WTF, and the bartender replies “Do you really think I asked for a twelve inch pianist?”

        1. Burned by eddie.

      3. +1 Penny Royal

    3. Heinlein had great ideas. When I first read The Moon is a Harsh Mistress, I asked myself – why we don’t have a congress that repeals laws?

      We need to be creative:

      – For every law that gets passed, congress must repeal one.

      – No law shall be longer than 2 pages (much like a resume, we can also say under _ # of words). If it can’t be explained in under 2 pages, it’s almost certainly bullshit.

      – The only people who get to vote are property owners (one person per household), and those not receiving any federal money (government employee, SS recipient, Medicare recipient, etc)

      Just some ideas.

      1. Looks like we were posting a similar idea at the same time..

        1. I like your ideas Holger

    4. Words will never hold tyrants in check very long. Bullets will hold them in check eternally.

  7. Absent a repeal of the 17th amendment, it’s just moving deck chairs on the Titanic.

  8. term limits
    no federal pensions except military
    voting for an unconstitutional law costs you your thumbs
    a national thumbless registry

    1. Elections for federal office are decided by majority of eligible voters (not registered). If a majority is not reached by any candidate then the office remains vacant until the next normally scheduled election.

    2. “a national thumbless registry” with fingerprints on file?

      1. *slightly narrowing gaze while slowly clapping*

        SWISS!!!!! Can I get a ruling on this one?

  9. Require a 2/3 majority in the legislature to pass legislation, and a 1/3 minority to repeal. Think about it. If some piece of legislation is so unpopular that 1/3 of the representatives hate it, then it doesn’t deserve to be backed by force of law. Not that that idea would ever pass, but it would be a great step in limiting government.

    1. Wasn’t this used on one of Heinlein’s novels?

      1. Yep. Proposed anyway. Didn’t catch.

    2. Tell people, look we require jury decisions to be unanimous, and those decisions only affect one person. Legislation affects everyone, and we are willing to settle for only a 2/3 majority. Logic.

    3. This country wasn’t founded to be required to adhere to a limited-government orthodoxy. It should be whatever the people democratically decide they want it to be. Democratically means majority rules unless there’s a good reason the minority should rule.

      1. “The derp is strong with this one.”

      2. “Give in to your stupidity. Let the derp side flow through you.”

      3. Dude, color me impressed. Every time I think you’ve made the dumbest comment ever, you come up with something like this. You are truly amazing in your abject stupidity and hermetically sealed mind.

      4. Democratically means majority rules unless there’s a good reason the minority should rule.

        Tony, I strongly suggest that you reread each of your posts a few times and think about them before you hit “submit”.

        1. Tony is distinction-challenged. As a result he sees no distinction between a minority passing legislation (minority rule) and a minority repealing legislation (check on majority rule). He is that retarded.

          1. I just want to know who he thinks is qualified to decide if a reason is “good” enough.

          2. So let’s make this simple. There’s a law on the books against murder. You think it should be easier to repeal that law than it was to pass it in the first place? Why is a society in which murder is permitted more of a default form than one in which it is illegal?

            1. Moron thinks that a proposal to repeal laws against murder could pass by a 1/3 vote. Moron is stupid.

      5. Proving one comment at a time that Peak Retard is a myth. Don’t ever change, dumbass.

      6. This country wasn’t founded to be required to adhere to a limited-government orthodoxy.

        I suppose that’s true. The constitution can be amended in any way. But it’s also pretty clear that it wasn’t intended to be majority rules either.

        1. The constitution sets out circumstances in which supermajorities are required to do things. Otherwise it’s not “libertarians get whatever they want,” it’s regular order, i.e., majority rules.

          1. “libertarians get whatever they want,”

            All libertarians want is to be left alone. That’s it. Leave us the fuck alone. If we took over the government then we would leave people alone. Well, unless they go about harming the life, liberty or property of others. Then we would take notice. But otherwise we would have government leave people alone.

            Then again I can see why you, Tony, find that concept to be abhorrent. After all, you want to use government as a tool to harm the life, liberty and property of people who you don’t like, and not give them any recourse because the government that is supposed to help them is what is doing the harm. That is called institutional injustice. It is also called social justice. I prefer to call it by what it really is: evil.

            1. I don’t find the concept abhorrent, I find it ridiculous and infantile. It’s literally the call of the depressive teenager living in his parents’ basement. He doesn’t want to pay rent, but he sure as fuck doesn’t want to do any chores either.

              But you’re not even being that coherent. What do you mean leave you alone? Do you mean I can’t have any roads or public education or any other aspect of a decent civilization because you say so, no matter how small a minority you’re in? Of course not. You want almost all of the aspects of modern civilization, you just don’t want to have to pay for any of it. You think it’s all magical and free, or that private market transactions will build something better and cheaper, like the basement-dwelling teenager with no perspective on reality.

              I’ve said it many times: your premises do not give you the moral high ground. You think government coercion is inherently bad, but you need government to do only those things that require actual physical force, imprisoning and killing people when necessary. Yet somehow an income tax or subsidized food is eeeevil. The only way your bullshit philosophy is coherent is as a wealth grab by cynical, lying wealthy interests to whom you’ll never be a peer. That’s the only way it makes sense that property is protected by government but not poor people’s ability to eat.

              1. Whenever you want government to do something, be it roads or schools or forced charity, you are saying that it is worth imprisoning and killing people over.

                Because everything government does, without exception, is predicated on a very real threat of imprisoning and killing people who don’t want to go along.

                So yeah, we’ve definitely got the moral high ground over you. We support liberty and free markets where everything, without exception, happens voluntarily. No coercion involved.

                You, Tony, are the face of evil. You want to accomplish your goals by imprisoning and killing anyone who disagrees. That’s evil, Tony. That’s you.

                1. You just said you want government to literally imprison and kill people. Yet building roads and schools is wrong because taxes are sorta like violent coercion in a metaphorical way. Sorry, it just doesn’t cohere at a basic level. All you’re saying is government force is OK for functions you deem legitimate and nobody else gets an opinion on the matter. That is what I call evil tyranny.

                  1. All you’re saying is government force is OK for functions you deem legitimate and nobody else gets an opinion on the matter.

                    Just as individual force is morally justified in response to force (self defense for example), government force is morally justified when it is in response to an initiation of force (crimes with actual victims, foreign invasion).

                    Such a concept is only difficult for you to grasp because you feel that it is perfectly fine to imprison and kill people who you don’t like simply because you don’t like them. That’s what government is supposed to prevent, or at least respond to. When it becomes a tool of criminal aggression as you want it to be, then it ceases to be moral or just. It becomes evil, just like you.

              2. Do you mean I can’t have any roads or public education or any other aspect of a decent civilization because you say so, no matter how small a minority you’re in?

                Socialism, like the ancient ideas from which it springs, confuses the distinction between government and society. As a result of this, every time we object to a thing being done by government, the socialists conclude that we object to its being done at all.

                We disapprove of state education. Then the socialists say that we are opposed to any education. We object to a state religion. Then the socialists say that we want no religion at all. We object to a state-enforced equality. Then they say that we are against equality. And so on, and so on. It is as if the socialists were to accuse us of not wanting persons to eat because we do not want the state to raise grain.

                Some things never change.

                1. You’re not addressing the point, as usual. You are for socialist property rights protection, despite the fact that such requires actual physical force and coercion by government. You said so explicitly. So you can’t be against other programs solely on the grounds that they require government compulsion.

                  1. You are for socialist property rights protection, despite the fact that such requires actual physical force and coercion by government.

                    Only if someone else violates someone’s property. Someone else has to initiate force. Just as it would be morally justified for me to use force to protect my life, liberty and property, it is moral and just for government to do the same.

                    You want government to be the initiator of force. You want government to do what would be criminal if done by an individual. It is not moral or just for you to put a gun to a rich person’s head and force them to pay for everything that you like, but that is what you want government to do on your behalf. You are immoral and you have no sense of justice.

                    Anyway, I’m done entertaining you, turd. Back to work.

                    1. You mean you know you can’t make this work so you’re running away like a coward. You can’t make it work. I’m not the originator of this argument. Property-rights libertarianism cannot justify itself on an anti-coercion premise. It’s an absurdity. You have to set up a government that responds to violations. You have to take taxes to pay for that government. Those taxes are not taken any less forcibly than taxes taken to pay for schools, only in the latter case nobody is imprisoned or executed as a matter of course in the practice of its social obligations.

                      You should just say “I’m a libertarian. I prefer a society that subsidizes property rights protections but not roads or schools. I think that policy platform makes for the best form of society, and here are a bunch of real-world examples that illustrate why.” Instead you insist on a cosmic moral rectitude that you can’t justify with argument. That’s a sign of a weak position. Why can’t you justify it on the merits of your policy platform alone? Could it be because there is a distinct lack of real-world evidence for you to draw from?

                    2. Those taxes are not taken any less forcibly than taxes taken to pay for schools, only in the latter case nobody is imprisoned or executed as a matter of course in the practice of its social obligations.

                      Like Bastiat observed, socialists assume that if something is not done by government then it will not be done at all.

                      Another thing you seem incapable of comprehending is that libertarians have no desire to shape society. In that respect we’re evolutionists. We want to let society and the economy emerge from the spontaneous order of voluntary interaction. You know, like nature.

                      You are a societal creationist. You cannot imagine anything happening in society without your god, government, having a supernatural hand in it. Meanwhile you mock anyone who doesn’t believe in evolution.

                      Talk about a lack of self-awareness.

                    3. You’re not addressing the point, but OK. It is a fact claim that for some reason only government can deal with property rights but a laissez-faire market can take care of everything else. That requires evidence that you don’t have. Is that why you simply declare your policy preferences ordained by moral necessity without justification?

                      Nobody should want civilization to run like nature. The whole point of civilization is to improve on nature. Natural selection works by weeding out 99.9% of species. Is that the success rate you have in mind for humans in a society? Sounds about right for a laissez-faire system.

                    4. It is a fact claim that for some reason only government can deal with property rights but a laissez-faire market can take care of everything else.

                      I’m an An-Cap. Government should be abolished. Kill the dragon.

                      Natural selection works by weeding out 99.9% of species. Is that the success rate you have in mind for humans in a society? Sounds about right for a laissez-faire system.

                      Freedom (what you like to call “laissez-faire”) does weed out many producers who fail to compete. Those who do so either come back with a new thing to produce or work for someone else (who will pay them to produce something else). This is good, it means that individuals get more stuff (that they want) for less effort. Natural selection is good when it happens to producers.

                      Now, to those who fail to produce enough to make compete directly with the greatest, they, again, usually agree to work for them for a mutually beneficial amount of compensation. Even those who are unable to do so, human empathy moves us to care for them anyhow.

                      This is how the “society” you now live in was created. Then government was invented and desperately tried to regulate all this, either for naked ambition or “fairness”, the results were the same.

                    5. That requires evidence that you don’t have.

                      Tony, it is a conclusion based upon logic and reason. Neither of which you posses. And there are plenty of examples where government protecting life, liberty and property, while otherwise leaving people alone, has resulted in great prosperity. Taiwan immediately comes to mind.

                      Nobody should want civilization to run like nature.

                      Society is not “run.” Your god government does not run society anymore than the Christan god runs nature. Nobody “runs” society. Libertarians recognize this, but societal creationists like yourself are incapable of recognizing it, just as religious people are incapable of recognizing evolution.

                      Natural selection works by weeding out 99.9% of species.

                      The percentage of businesses that fail is not too far from that. That is because it is only the rare good ideas that catch enough interest to succeed. Unlike your god government which, when a policy fails, doubles down with more legislation and regulation backed up with a real threat of imprisonment or death for anyone who doesn’t like it. Yet you prefer violence over cooperation. More evidence that you are evil.

                      Why do you detest property rights so much? Oh yeah. Because you’re an immoral and evil fuck who feels that violence and dishonesty are perfectly fine as long as you get what you want.

                  2. socialist property rights


      7. Yeah, why do I get the distinct impression that you take a different tack when you don’t like the will of the majority?

        1. Unlike libertarians I don’t usually assume that I should get my way no matter how many of my fellow citizens disagree because I’m just that clever.

          1. Post your tax returns and we’ll talk.

          2. Unlike libertarians I don’t usually assume that I should get my way no matter how many of my fellow citizens disagree

            Let’s talk about gays in the Bible belt circa 2002. Are you telling me that you shouldn’t have gotten your way because your fellow citizens disagreed with homosexuality?

            1. I didn’t get my way until a majority of the country was willing to go along with it. It’s not pretty but it’s better than having a gay emperor impose his will on a country full of Bible thumpers. That would get even messier.

              1. Might Majority makes right.

                As long as the majority agrees with Tony.

                BTW, you do realize that makes you a narcissist, right?

      8. Let me skip this entire argument and just say this:

        You can’t have my stuff. If you try to take it, I will shoot you.

      9. So if a majority of the country decides that people of a certain faith or color are personas non grata, then that majority should rule?
        You are living in the wrong country.
        Go Fish

    4. This is probably the best suggestion. It should have the added impact of weakening the two-party system we currently have.

  10. Amendments just change the text of the Constitution. If the text mattered, the new amendments wouldn’t be necessary.

    1. A little clarification on a few parts of the text would be nice. It’s good that the constitution is short and understandable. But they could have fleshed out a few of the bits to help avoid confusion and disagreement. Which started pretty much right away.

  11. Doing whatever’s necessary to get the feds to chill out on the interstate commerce clause is great. The rest sounds either useless or counterproductive.

  12. …prohibit Congress from regulating activity that occurs wholly within one State…


    1. Privileges and Immunities.

    2. I don’t think he proposed repealing the 13th.

  13. I didn’t google it, but I don’t think marijuana is native to Texas. That means any plant is a descendent of interstate commerce.

    See how easy that is?

    1. And it grows on CO2 in the air, which come across state lines, and was likely produced in other states as well.

    2. Yeah, I don’t see how the new wording gets around any of the Commerce Clause problems at all. The whole point is they bend over backwards to say it doesn’t involve just activities in one state.

      1. The problems of the Commerce Clause isn’t the clause itself, but of the mendacious fuckbags who want to use it’s magical oppressing powers to justify anything they want.

      2. Who bends over backwards to say it doesn’t involve just activities in one state?
        Read Wickard v Filburn, where The SCOTUS agreed that growing wheat, on one’s own farm, for personal use, affected interstate commerce.

  14. My system, as I have stated before, would be a combination of sunset provisions and term limits. All legislation would have to be re-upped, and by new legislators, or it dies.

    Also, every yea vote would have to be accompanied by the voter reading the legislation in its entirety aloud at the time of the yea vote, or the vote gets registered as a nay. Mistakes or omissions and it’s a nay.

    Now, on to regulations…

  15. This right here is why I fear a Constitutional Convention. This is a governor trying to re-empower his state in the federation, whixh is probably as close as I’ll get to representation (unless Randy Barnett drafts the Constitution and manages to pass it as weitten) and it’s a horrendous mess of add-ons to tinker, for the most part. Imagine what the statists will demand as the “compromise”. Instead, repeal 17, apply 9 and 10 as if the had the same force as 1 and 14 and see where that gets us. If necessary, pass a single Amendment thtat says, Amendments 9 and 10 were in no way invalidated by 14 and 15 and shall have the same force as any other limitation of power in the Constitution.

    1. ^This. The different sides of our current political debates have too fundamentally different starting points philosophically for any good to come out of such a Convention. Plus, I guarantee that anyone in a position to get appointed to a new Convention will not be this generation’s Madison or Hamilton.

      Repeal the 17th and enforce the rest of the Constitution as written, and we’ll do fine, I think.

    2. Isn’t it sad that the 9th and 10th basically mean nothing anymore?

      Seriously – try asking a Republican or Democrat, or any of your run-of-the-mill statist friends what the purposes of the 9th and 10th amendments are, and to give an example of what they’d apply to… you’ll almost certainly get blank stares.

      1. The 9th and 10th – completely eviscerated by the Oberegfell decision, and taken to lengths entirely out of Constitutional authority, yet most here thought it just wonderful.

  16. Robotic Judiciary would solve most of these problems for you

    1. Can we appoint IBM’s Watson to the Supreme Court?

      1. On second thought, Robo-Judiciary would be a bad idea. All sentient robots eventually conclude that the best way to save humanity is to destroy it.

        1. ’cause let’s face it, people suck

      2. Can we appoint IBM’s Watson to the Supreme Court?

        All the materials that Watson use are curated. By people.

        It would be interesting to see if you could make it reach peak derp by only feeding it Gawker, Salon, and DK articles.

  17. activity that occurs wholly within one State

    In this “Global Economy”? Good luck.

  18. Sunset all federal laws every five years. Anyone imprisoned or under lien by a law that fails to be renewed is immediately released/the lien is wiped out.

    1. Each statute must be individually renewed and voted on. No omnibus renewals.

      1. True. And I’d be fine with supermajorites/superminorites for pass and repeal.

      2. And no government entity could propose financing of debt for a term of more than nineteen years.

    2. I find it interesting that many of these suggestions (and this is a mental masturbation I have witnessed many times being involved with the LP) are temporal in focus. I guess when you think about it even though a principle is the ultimate goal the more utilitarian tactic of “well, if it is fucked at least it ain’t permanent” seems to provide the most benefit for the least effort. I think maybe a long series of temporal focused changes can lead to a solid principled outcome. So that in 100-200 years instead of going backward the progress is toward more liberty…as the stupid laws keep falling by the wayside of fickle electorates but the big well crafted principled ones have staying power.

      1. I wouldn’t contrast “principled” with “utilitarian” like that, because utilitarianism is just a set of principles. So I think it is perfectly principled to have sunsetting provisions like these on the basis that without them, the ratchet only goes one way. It’s not a deontological principle, but it is a principle divorced from any specific case.

        1. understood, utilitarian is the only word i could use in this case, not intending to invoke the overall political philosophy but the decision making premise of other approaches within one.

      2. It is difference in the libertarian viewpoint and the anarcho-capitalist viewpoint. Either you believe that a structured limited government can last or you want to try to set up one that will at least fail in the direction of liberty.

        Of course, there is also the idea of deciding where the argument is: If you are setting something up from scratch or trying to fix the broken system we have.

        I think a lot of liberty-mind people disagree because they cannot agree on the argument they are having.

        1. Uhh I have said this over 9000 times.

          I couldn’t agree more with you. Please don’t make whatever character I am to become too gross just cause I agree.

    3. Sunset all federal laws every five years.

      Agreed, but it should be more towards the top so more people read it.

  19. I think it takes more imagination to come up with examples of transactions that don’t involve resources or labor in other states than the alternative.

    1. Only if you’re being disingenuous, or outright mendacious.

  20. “prohibit Congress from regulating activity that occurs wholly within one State,”

    Slavery. Got it.

  21. an amendment that would “allow a two-thirds majority of the States to override a U.S. Supreme Court decision.”

    A lot of problems with this one.

    1) Many, if not most, Supreme Court decisions are statutory matters or conflicts between two private parties. In the former case, changing the law makes more sense. In the latter, states have no business getting involved at all.

    2) In the case of Constitutional decisions, what this amendment is proposing essentially amounts to lowering the threshold for a constitutional amendment. The Supreme Court is interpreting what the Constitution says (according to them, at least, but that’s a separate discussion) and how it relates to a particular law. Congress already weighed in once on the Constitutional issue when it passed that law (this, of course, was more relevant when the Senate actually represented state interests, but the 17th Amendment did away with that). The Executive branch already weighed in, first when it signed the law, and second, when it enforced it.

    Maybe we should just repeal the 17th so States have a say in laws again?

  22. Require a seven-justice super-majority vote for U.S. Supreme Court decisions that invalidate a democratically enacted law

    If the law conflicts with the Constitution, it should be invalidated without respect to the level of majority. If it doesn’t conflict with the Constitution, the Court has no business striking it down, no matter how misguided the policy may be. That’s what the electoral process is for.

  23. I know this isn’t a deeply principled idea, but I would deny any elected official any personal security or bodyguards. If you are doing stuff that pisses people off enough that they want to hurt or kill you, then you’ll have to pay for your own security. If you don’t like that, then don’t piss people off.

  24. I have long pondered an amendment that would amount to every politician being under oath whenever they speak in an official capacity, leaving them open to perjury charges if they lie in a speech.

    I think there would have to be something with slightly different rules for house and senate floor, just so a slip-up in a debate wouldn’t be punishable the same way as an outright lie.

    1. Mens rea requirement should be enough. It’s not a lie if you believe facts that prove incorrect. It is a lie if you intentionally do so.

      1. Mens rea requirement should be enough.

        It should be, but it can be very difficult to prove that a slimy little shit (politician) was deliberately lying. They’ll always just fall back on “I misspoke,” “Misunderstood the question,” or “I was mistaken.” or some other weasel words to avoid the perjury charge.

  25. not just of marijuana but of cocaine, heroin, LSD, lawn darts, “assault weapons,” or “partial birth” abortion

    Not to mention partial birth Jart abortions.

    1. The best gynecologists in the country could hit their target from 30 yards.

  26. its unneeded laws telling the government to follow the existing constitution and if our government isn’t willing to follow the constitution we have what makes him think they will follow this one. All we need is for those in power to force themselves to follow the rules. I laughed while writing that, people in power never follow their own rules

    1. Rules are for us little people. Out betters, OTOH…

  27. 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.”

    Don’t we already have this as #10?

  28. I have noticed that libertarians and conservatives often suggest ‘improvements’ to the constitution or returning to its original meaning while those on the left generally advocate for just throwing it away. One of our lefty trolls, not sure which, once suggested we should make Obumbles emperor for life with complete control over all industry; in other words – Hitler.

    Funny that.

    1. Those left cares only about achieving certain ends (usually power), without regard to how such ends are achieved. In the minds of many of them, it is okay for them to lie, cheat, etc., to accomplish what they conclude is the correct result. But these rules only apply to them, of course

      Libertarians (and certain types of conservatives) recognize that the best way to promote justice and prevent arbitrary government is a strong rule of law that applies to everyone equally and is actually enforceable and enforced (with the caveat that the list of things that should be illegal/punishable be limited to actual violations of people’s life, liberty, and property).

      1. Didn’t someone recently ask, where is the Alinsky of the right. Which captures the conundrum. How do you stay true to your principles and prevail against the left, whose ends justify any means. If you fight them on their terms, you have to give up your principles to win.

  29. So, a flawed step in the right direction from conservatives. My guess is libertarians will reject any of the ideas or any discussion with those proposing them. Much better to try to work with the progressives. Maybe this time they don’t really mean it when they say they hate libertarianism and libertarians and want all-government-all-the-time.

  30. This would require a Constitutional Convention, right? And how do we know if would be limited to Abbot’s nine proposed amendments? Imagine the possibilities:



    Amendment Four: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated EXCEPT WHEN CONCERNS ARISE THAT CONCERN A GENERAL NOTION OF PUBLIC SAFETY AND WE WANT TO SEE WHAT YOU HAVE SO WE CAN TAKE IT AWAY TO MAKE EVERYONE FEEL BETTER [based on a recent Circuit Court of Appeals decision].

    Amendment Five: No person shall be…deprived of life, liberty, or property, without due process of law UNLESS YOU ARE ACCUSED OF THE PARTICULARLY HEINOUS CRIMES OF SEXISM OR RACISM OR JUST HATING ON ANY MEMBER OF A PROTECTED CLASS IN WHICH CASE IT IS ON YOU TO PROVE YOURSELF INNOCENT [as it already being modeled on many of our college campuses] AND GOOD LUCK WITH THAT.

    I rest my case.

    1. re Amendment Five: ….and we can take your property any time because drugs, and it doesn’t matter if you can prove yourself innocent, because it’s not you, it’s your property being accused.

  31. 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?

    What are the st. courts, chopped liver?

    The most problematic is #5. You win (or lose) a federal case in the Sup. Ct., then what? The decision is automatically stayed for a time during which the sts. can reverse it, or part of it?

    1. If the case is on a Constitutional issue, then such a procedure amounts to a reduced barrier to the amendment process. Not a good idea.

      1. Even a Constitutional amendment doesn’t work retroactively!

  32. Honestly, I’d settle for an amendment that required all laws, regulations, taxes, and fees applying equally to all branches of government, all businesses equally, as well as private citizens. This would go a long way to prohibit carve outs for special interests as well as forcing government to be far more careful with regulations and fees as a public backlash would brew over the more outrageous ones that the public was suddenly required to also pay.

    And also, no more special carve outs for government enforcers on things like guns. “Well, police don’t have to follow the weapons laws because we are the government.” If it’s all-but illegal to have a pistol in their jurisdiction, then the police should be the first to have to surrender them.

    1. Rule of law is so quaint. Rule of man is where it’s at.

  33. I can barely hear myself think what with all the jerking off to fantasy constitutions going on in here. Do you people ever bother to think about the real world as it is and plausibly could be in the near term, or no?

    1. In the real world, the actual drafted and democratically approved United States Constitution says “shall not be infringed”. Put down the stones, son, that’s a glass house.

  34. I skimmed the Texas Plan, & see that nowhere does he give the exact wording of the amendments. There’d be severe problems in determining what “override” & “law” mean.

    One act of Congress made it illegal to introduce into interstate commerce food additives shown to produce tumors. A subsequent act amended that provision to exempt saccharine for a certain time. Which of those is a “law” that 2/3 of states could “override”, & what effects could they override?

  35. 3 amendments and repeal the 17th:

    1) any act of Congress, regulation, or executive order may be repealed with a 1/4 vote of Congress and the signature of the President or by a 1/3 vote of Congress.

    2) Any act of Congress, regulation, and executive order shall apply pari passu to all citizens, including elected and appointed officials. Further, Sovereign immunity is hereby waived in toto.

    3) Any State may secede at any time for any reason.

    1. Oh, and repeal the 16th

  36. Here’s a novel idea:
    If 2/3’s of the Several States endorse a call for an Art-V Convention, and that convention proposes amendments to be ratified by those Several States, and 3/4’s of them do concur on one, none, all, or something in-between after a period of public debate, we adopt whichever ones have been properly ratified as per the Constitution.
    Try it, you just may like it – and it should gather more support than changing the Constitution through the votes of five un-elected Justices.

  37. In order to protect the implied liberties of a free people, and to ensure a balance of power among the branches of government, the power of judicial review shall be retained by the courts.

  38. Use the terminology of the Constitution!

    Stop using the terminology of the enemy: States don’t “call” for a convention –
    States don’t have outstanding “calls” for a convention.

    States “apply” to Congress for a convention.

    The entity which “calls” a meeting or a convention is in the superior position.
    The entity which “applies for” or “asks for” a meeting or a convention is in the subordinate position.

    One of the reasons the enemy has been successful is that WE USE THE TERMINOLOGY THEY SELECT!
    So we should say that such and such a State has outstanding applications for a convention.

    People are manipulated without their even knowing it, by word choices.

    The COS people have been saying the States control a convention from start to finish. By your saying that States “call” a convention or have outstanding “calls” for a convention, you are playing into their hands.

    Thank you!

  39. An Article V convention to amend the U.S. Constitution (‘ConCon’) can only end in disaster, destroying the republic left to us by the framers.
    Washington DC is a ruthless, lawless, independent city-state at war with America. Grasp this fact, and you begin to see through the whirlwind of distractions that our enemy launches against us every day. Our arrogant, lawless servants have hijacked the republic by violating our highest law as if it never existed. It is insane to suggest that the criminals will arrest themselves if we only re-write the law!
    The discussion of an Article V ConCon is a red herring, just as the whole Second Amendment argument has been a diversionary tactic by the NRA. As I explained in this recent article, in its 145 year history, the NRA has never even attempted to restore the Citizen Militia and this oldest member of the Fear Porn industry has no intention of enforcing the Constitution.…..-v-charade

  40. By milking five generations of low-information members with a new plea for donations every month, NRA built a new $50 million DC-area headquarters complex for thousands of career bureaucrat employees. That is the organization’s only concrete accomplishment.

    Mark Levin and the Fear Porn Industry

    In this past article, I exposed the Fear Porn industry, of which Joe Farah is the Emperor, Rush Limbaugh is #2, and Concon salesman Mark Levin is far down the list. These shameless hustlers are actually enemies in the midst of American conservatism ? like the NRA, Heritage Foundation, et al ? they profit from fear, so they cultivate it every day.

    But since that screaming radio personality bills himself as “The Great One” and claims to be a constitutional scholar pushing for a ConCon, let’s consider Levin’s pitch for an Article V convention. We can dismiss him quickly: his book ‘The Liberty Amendments’ does not even address the most basic question. Our lawless servants don’t obey the Constitution we have; why would they obey a new one?

    If The Donald wants to be our cheerleader, fine; but We The People have work to do that no politician, including a president, can do for us. Job One: finish the Article V responsibility of our state legislatures that has been kept in limbo by ignorant and corrupt lawmakers for 226 years.

  41. No Con Con

    Article V of the Constitution is clear about the two ways to pass amendments. Also clear is what happened in 1787 when the Constitution was written. The convention to amend the Articles of Confederation wrote an entirely new Constitution, which was outside of its scope. Ratification rules were rewritten in order to ensure passage. Are we confident that the Constitution would not be rewritten and ratification rules not thrown out? The John Birch Society stands opposed to calling for a convention, but supports amending the Constitution through Congress. However, the better solution is to obey the Constitution to rein in the federal government, not amend a document that is ignored.

    Take action today by letting your state legislators know of the dangers of an Article V Convention. Then learn more, so you can educate others and enlist their help.

  42. As to interstate commerce and how the Supreme Court has destroyed that original meaning in the Constitution, U.S. vs. DeWitt (1869) was probably the last good decision by the Supreme Court regarding the proper powers of Congress.…..76/41.html

    But as to the rights and powers of citizens we first need to define what an inalienable right is and, therefore, where the government, federal, state, or local cannot tread. Here is my definition and it only applies to adults as minors, for various reasons, do not have full adult rights.

    Any and all non-violent, non-coercive, non-larcenous consensual adult behavior that does not physically harm other people or their property, that does not immediately and directly endanger other people and their property, that does not disturb the peace or creates a nuisance in public, is an inalienable right.

    Basically, if one’s behavior is honest and peaceful and doesn’t endanger other people or their property, then regardless of the majority thinks or regardless of religious or personal moral beliefs of others, it’s your right to so behave.

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