The bad in Governor Greg Abbott’s constitutional amendments

posted at 9:21 am on January 11, 2016 by Taylor Millard

Texas Governor Greg Abbott’s decision to propose nine amendments to the U.S. Constitution is all about protecting the 10th Amendment. Abbott rightly believes in limiting the power of the federal government and cutting away as much bureaucracy as possible. I’ve already written why there are some really good things in Abbott’s “Restoring The Rule Of Law” plan, which the states should consider passing because of the fight against the leviathan. The governor (who I happily voted for in 2014) has given a lot of thought to his proposal and should be praised for stepping into the spotlight on this. However, there are several proposed amendments which could do the absolute opposite of what Abbott hopes they will do.

Abbott is extremely worried about the Supreme Court of the United States’ ability to “create law” when they have no right to. A lot of this has to do with Chief Justice John Roberts’ two decisions on Obamacare where he declared it a tax, even though it wasn’t. Abbott’s concern is viable, and it’s important to note judicial review isn’t even in the U.S. Constitution but was created by Chief Justice John Marshall in the Marbury v. Madison decision. Abbott’s solution is simple: allow a two-thirds majority of the States to override a U.S. Supreme Court decision through an assembly of states (emphasis mine).

But once the super-majority requirement is met, the assemblies could overturn the Court’s decisions in whole or in part. They could overturn the Court’s decisions retroactively or prospectively. They could vitiate the precedential effect of the Court’s decisions and remand cases to the Supreme Court for further proceedings. In short, the assemblies would restore the people—rather than five unelected jurists—to the role of the truly supreme arbiter of the Constitution.

To those who complain that this part of the Texas Plan is extreme, again, the Constitution supplies the reply. From the beginning, the people acting through their respective States were supposed to have control over the Constitution. Article V allows the state legislatures to propose a constitutional amendment, and it can be ratified by a three-fourths vote of the state legislatures or state ratifying conventions. The Framers were deliberate in vesting the people (and their closest representatives, namely, the state legislatures) with the power to amend the Constitution. The people have been robbed of that authority if the Supreme Court can change what the Constitution means with the stroke of a pen. The Texas Plan restores the people’s control over their Constitution by giving the States the power to fix errant Supreme Court decisions.

The problem is Abbott forgets what could happen if the wrong people get in power. Say a majority of states decided to pass laws which mandated “trigger warnings,” and required all protests to meet “certain requirements” before they could be put on. The Supreme Court should obviously rule against these laws citing the First Amendment, and freedom to assemble, and the 14th Amendment. But under Abbott’s proposal, the states could band together and overrule SCOTUS’ decision if they disagreed with it. This is actually limiting freedom, instead of promoting it. The states could also band together to overturn the Citizens United decision, under the idea they want to keep corporate money out of politics. It’s here where Abbott’s idea the states can “fix errant Supreme Court decisions,” is actually a double-edged sword which can come back and be a death knell to the freedom Abbott so loves. The same goes for his idea “the states” should be able to overturn a federal law they disagree with. What if the federal government decided to pass a law which gradually eliminated Social Security or allowed people to put their Social Security money in a private account? What’s to stop two-thirds of the states from calling together a gathering to overrule that law? This is the danger of the Abbott’s proposal. As state and local governments start getting larger and larger (and make no mistake, it’s happening), they can limit the freedom of their residents more and more. The better, and more long-term solution, is making sure to elect politicians (at all level of government) who WILL follow the Constitution, love freedom, and won’t try to grow government. Abbott’s suggestions are honorable, but he’s unfortunately forgetting there will be other states which will disagree with him.

The other problem with Abbott’s proposal is the idea there should be a super-majority of seven votes in all Supreme Court cases. The suggested constitutional amendment is probably being done to push back against 5-4 SCOTUS decisions like Obamacare and gay marriage. Abbott’s reasoning for the super-majority make sense on the surface.

It takes a clear super-majority of States to ratify an amendment though the Article V process—so why does it only take a bare majority of Supreme Court justices to accomplish the same thing? It cheapens the rule of law—and encourages circumvention of the Constitution’s amendment process—to allow five justices to overrule constitutional precedents and invalidate democratically enacted legislation.

The Texas Plan fixes that anomaly by imposing the same super-majority requirement for Supreme Court decisions (three-fourths) that Article V already imposes for constitutional amendments. Not only is a super-majority already required by Article V, a super-majority also is a familiar requirement for courts. Every criminal jurisdiction in the United States requires a super-majority (if not complete unanimity) of jurors for criminal convictions. The purpose of those requirements is to mitigate the risk that a bare majority would get the answer wrong. If that concern is valid in individual criminal cases, and everyone agrees it is, the same is certainly true for the highest legal question our system ever could ask—namely, whether a particular thing is or is not unconstitutional.

Abbott also uses the Nebraska and North Dakota Supreme Courts as examples of where super-majority votes work. He has a point, but Abbott forgets cases where a 5-4 vote went in favor of freedom and/or states rights. The Citizens United, Heller, and McDonald decisions were all 5-4, as was Ricci vs. DeStefano and Shelby County vs. Holder. The Butler decision of 1936, which ruled the Agriculture Adjustment Act was unconstitutional, was 6-3. None of these landmark decisions would have happened under Abbott’s proposed amendment. It’s obviously extremely frustrating for both sides of the aisle to watch “Supreme Court Theatre,” and try to figure out which judges will vote which way, but there are plenty of times when SCOTUS has ruled in favor of freedom without a super-majority. It would be unwise to put the super-majority in place, even if there have been decisions conservatives and libertarians believe the court failed in their rendering. There have been plenty of times when the narrow victory went towards freedom, and Abbott’s idea could possibly reduce the chance for similar victories, no matter how narrow they might be. It would also put more emphasis on lower court rulings and might lead to more “packing” and politicizing of the courts (as if there isn’t enough already), instead of focusing on actual issues. This is why Abbott is wrong here, even if the super-majority seems to make sense. The only way this might work, is if Abbott is hoping most court action over laws stays in state courts. That might work, but it also might not. It’s probably best to stay with the current voting rules for a SCOTUS decision, despite the theater.

There’s nothing wrong with the governor deciding to put these proposals forward, and it’s good to have a debate on them. The Texas Plan is a very well-thought out document, and obviously something Abbott spent a long time putting together. But Abbott is mistaken in his belief that allowing states to overturn federal law or Supreme Court decisions and requiring a super-majority of SCOTUS votes will actually solve the problem the U.S faces when it comes to the overreach of the federal government. It would be better to play the long game, and try to get more small government, pro-freedom politicians elected (and keep them accountable) than pass populist amendments which could blow up in the country’s face and hurt more than help.


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Comments

Yeah…it’s a lot more likely 37 states will go rogue than it is 5 SCotUS as*holes will decide on a lark to destroy free speech or voting law Mr. Mallard….

“no really”

“Math”

I’ll take my chances with a Constitutional Convention rather than rely on Roberts and kennedy to not find their inner moonbat.

SCotUS is an unelected totalitarian oligarchy.

Madison had Sotomayer’s number back in the 1790s.

harlekwin15 on January 11, 2016 at 9:37 AM

The republic, as previously constructed, cannot be revived with the current impoverished, illiterate, innumerate electorate.

Eliminate charitable trusts and redistribute THAT wealth.

WryTrvllr on January 11, 2016 at 9:40 AM

I think the pushback on the supermajority requirement in the Supreme Court is valid, but the criticism of the 3/4 of state legislatures overriding a Supreme Court decision to be silly.

First of all, the state legislatures are closer to the people of the United States and will have a better chance of reflecting the will of the people. Now, your argument seems to be that the people will want dumb and dangerous things like trigger warnings, but that’s a problem with the nation as a whole and the United States government will end up reflecting those preferences whether state legislatures can override Supreme Court decisions or not. It’ll be just as hard as getting a constitutional amendment passed.

And that’s the actual problem with the proposal: Overriding a Supreme Court decision will be as difficult as passing a constitutional amendment, so it’ll probably never happen and the amendment will make no actual change to governance in the United States.

A popular check on an unelected branch of government is a good thing, but I fear that the hurdle Abbott places there may be too high of one to make an actual difference.

TheJamesMadison on January 11, 2016 at 9:40 AM

Your argument is based on the premise that it is better to trust the non corruption of 9 unelected individuals who fester political intent with every ruling the cast, than trust the voice of hundreds upon hundreds of individuals making up the states. And you don’t see the absurdity of that argument?

Abbott’s proposals are intended to right wrongs, not, as you imply, overturn good rulings, not matter how close the ruling were. The point is to force the rule of law to follow the constitution and you’d rather that decision be left alone with law makers not elected to make law. What it boils down to is giving the states a check and balance to the human nature of unelected people in power. All of it does.

You find something wrong with that? Contemplate the alternative.

lkh on January 11, 2016 at 9:40 AM

Citizens United was NOT a pro-freedom ruling, it was pro-Chamber.

Rix on January 11, 2016 at 9:41 AM

I’ll take my chances with a Constitutional Convention rather than rely on Roberts and kennedy to not find their inner moonbat.

harlekwin15 on January 11, 2016 at 9:37 AM

They don’t even need to. Blackmail or physical threat usually suffice.

Rix on January 11, 2016 at 9:44 AM

The depth of this analysis of Abbott’s proposal is so shallow that you couldn’t wet the soles of your feet in it. Try again or surrender, please.

Jazz on January 11, 2016 at 9:54 AM

In absolute truth, it is not 9 justices making decisions regarding the Constitution now, but ONE SWING JUDGE.

When the ideological split is pretty even, and judges are voting according to their ideologies rather than in deference to a deep understanding of the Constitution, we have the court we have today.

One man, as in Roberts’ Obamacare decision or his gay-marriage decision has the power to permanently change our liberties without any personal repercussions or responsibility. He is a de facto emperor.

The idea that 3/4 of the states are MORE likely to abuse their power to interpret or change the Constitution to a position of fewer liberties than the Supremes is beyond absurd. The people must always have a method of redress, as the power ultimately resides in them.

Your argument, Taylor, is based in misplaced reverence of the impartiality of the Court, which it demonstrably lacks.

Dolce Far Niente on January 11, 2016 at 9:54 AM

First Rothman and now Millard, HA where do you find these guys?

Is this some way of you reaching out to the millenials?

Epic fail!

D-fusit on January 11, 2016 at 9:55 AM

Anything that reigns in the out of control federal mafia is a good thing. If it completely destroys it, that is even better.

earlgrey on January 11, 2016 at 9:56 AM

Anything that reigns in the out of control federal mafia is a good thing. If it completely destroys it, that is even better.

earlgrey on January 11, 2016 at 9:56 AM

We don’t need to invoke Article V for that. All we need to do is find a state legislature brave enough to tell FedGov to go pound sand in a nullification act.

gryphon202 on January 11, 2016 at 9:59 AM

Let’s us take the first step and abolish the 17th Ammendment.

D-fusit on January 11, 2016 at 10:00 AM

The idea that 3/4 of the states are MORE likely to abuse their power to interpret or change the Constitution to a position of fewer liberties than the Supremes is beyond absurd. The people must always have a method of redress, as the power ultimately resides in them.

Your argument, Taylor, is based in misplaced reverence of the impartiality of the Court, which it demonstrably lacks.

Dolce Far Niente on January 11, 2016 at 9:54 AM

It’s not just Taylor’s argument, Dolce. It’s the same argument that many have made right here in these comments. My grandparents didn’t know what it looked like to be governed by leaders who followed the constitution, and they’re dead now.

gryphon202 on January 11, 2016 at 10:01 AM

Let’s us take the first step and abolish the 17th Ammendment.

D-fusit on January 11, 2016 at 10:00 AM

That would require an amendment, which in-turn would require a convention in order to submit it to the states. “Runaway convention,” indeed.

Pfft…

gryphon202 on January 11, 2016 at 10:02 AM

We don’t need to invoke Article V for that. All we need to do is find a state legislature brave enough to tell FedGov to go pound sand in a nullification act.

gryphon202 on January 11, 2016 at 9:59 AM

The feds have almost-unchecked power to dangle financial carrots and apply regulatory sticks. Telling them to pound sand is a very costly enterprise for a state.

Rix on January 11, 2016 at 10:10 AM

What if the federal government decided to pass a law which gradually eliminated Social Security or allowed people to put their Social Security money in a private account? What’s to stop two-thirds of the states from calling together a gathering to overrule that law?

This argument is right up there with “an Article V convention could be runaway convention.” It’s NONSENSE!

What would stop a majority of states from doing damage to our Constitution? The answer can be seen on one of those “blue-state/red-state” maps. Any decision that requires a super-majority of the states would deliver a HUGE advantage to conservatives. Something we will never achieve in any other circumstance.

JohnK144 on January 11, 2016 at 10:12 AM

The feds have almost-unchecked power to dangle financial carrots and apply regulatory sticks. Telling them to pound sand is a very costly enterprise for a state.

Rix on January 11, 2016 at 10:10 AM

I can’t argue that point. Question is, is it worth the cost? Or would the states rather maintain the status quo of tyranny? We are witnessing the answer to that question before our very eyes.

I find it very telling that so many people will go out of their way to thank the members of our military for being willing to risk themselves overseas, but recoil in horror at the very thought of risking far less here at home as civilians.

gryphon202 on January 11, 2016 at 10:14 AM

I can’t argue that point. Question is, is it worth the cost? Or would the states rather maintain the status quo of tyranny? We are witnessing the answer to that question before our very eyes.

I find it very telling that so many people will go out of their way to thank the members of our military for being willing to risk themselves overseas, but recoil in horror at the very thought of risking far less here at home as civilians.

gryphon202 on January 11, 2016 at 10:14 AM

If a state, or a group of states, were to revolt against the DC tyranny, the proper step would be not to oppose the regulatory regime but to halt federal tax remittance. Beasts are easier starved than slain.

Rix on January 11, 2016 at 10:16 AM

If a state, or a group of states, were to revolt against the DC tyranny, the proper step would be not to oppose the regulatory regime but to halt federal tax remittance. Beasts are easier starved than slain.

Rix on January 11, 2016 at 10:16 AM

Halting federal tax remittance would bring down a swifter and harsher retribution than any other act of defiance would, particularly since it would involve jailing IRS enforcement agents. That’s not to say I’m against doing so; it wounds like a good idea to me. I’m just saying it wouldn’t necessarily be the easiest or least painless way to go about choking DC off.

gryphon202 on January 11, 2016 at 10:19 AM

What if the federal government decided to pass a law which gradually eliminated Social Security or allowed people to put their Social Security money in a private account? What’s to stop two-thirds of the states from calling together a gathering to overrule that law? This is the danger of the Abbott’s proposal.

Wow. The ability to protect social security from being eliminated or put into the stock market are given as examples of flaws with this idea?

I think it’s actually an example of how frequently we just assume most people share our own point of view. It’s a reason to not have a small, insular group like SCOTUS having the final word on critical decisions.

Magicjava on January 11, 2016 at 10:22 AM

Halting federal tax remittance would bring down a swifter and harsher retribution than any other act of defiance would, particularly since it would involve jailing IRS enforcement agents. That’s not to say I’m against doing so; it wounds like a good idea to me. I’m just saying it wouldn’t necessarily be the easiest or least painless way to go about choking DC off.

gryphon202 on January 11, 2016 at 10:19 AM

Short of bringing the might of the U. S. Army against the state – a move quite unthinkable even for the lunatic currently squatting in the White House – I don’t see what kind of “swifter and harsher retribution” may be involved, except to reciprocate by halting all federal money transfers. Given that it relieves the state from the entire regulatory burden, I’d say it’s a major net win.

Rix on January 11, 2016 at 10:28 AM

Short of bringing the might of the U. S. Army against the state – a move quite unthinkable even for the lunatic currently squatting in the White House – I don’t see what kind of “swifter and harsher retribution” may be involved, except to reciprocate by halting all federal money transfers. Given that it relieves the state from the entire regulatory burden, I’d say it’s a major net win.

Rix on January 11, 2016 at 10:28 AM

Aye. That I do agree with. From my younger years when I first found out about how FedGov blackmailed states into making the drinking age 21 with federal highway dollars, I always found that middleman tax regime to be ludicrious from any practical standpoint.

gryphon202 on January 11, 2016 at 10:30 AM

Who is Taylor Millard?
What’s his educational and professional background that I should entertain anything he says?

vityas on January 11, 2016 at 10:32 AM

Abbott is extremely worried about the Supreme Court of the United States’ ability to “create law” when they have no right to. A lot of this has to do with Chief Justice John Roberts’ two decisions on Obamacare where he declared it a tax, even though it wasn’t.

And their declaration that abortion is a constitutional right.
And their declaration that sodomy is a constitutional right.
And their declaration that gay marriage is a constitutional right.
And their declaration that eminent domain to enrich private companies is constitutional.
And… need I go on?

Say a majority of states decided to pass laws which mandated “trigger warnings,”… under Abbott’s proposal, the states could band together and overrule SCOTUS’ decision if they disagreed with it. This is actually limiting freedom, instead of promoting it.

Both right and wrong. It’s actually promoting the freedom of the states, people, and leigslatures to determine what laws they want to live under. If states wanted to prohibit, say, lewd or obscene material, they could. If they wanted to get rid of exhibitionist half-time shows, they could. If they wanted to put the clamps on obnoxious protesters who are disruptive, they could. By the same token, if SCOTUS ruled that certain speech was not protected, the states could override them. And in each case it would be up to the people to determine what is or is not permissible.

Objecting this way makes you sound like a “freedom fascist”, who insists that every policy necessarily maximize personal freedom, irrespective of what the public thinks is best or how the people themselves wish to be governed. You want to limit how much say the people have, and to instead codify your philosophy of all-freedom, all-the-time. Government no longer is an institution that is of, by, and for the people. Instead, it serves a narrowly-tailored objective of mandating libertarianism, and anyone who objects is told “Sorry, but unless your policies are in compliance with libertarianism, you don’t get a say.” Screw that.

Stoic Patriot on January 11, 2016 at 10:34 AM

Who is Taylor Millard?
What’s his educational and professional background that I should entertain anything he says?

vityas on January 11, 2016 at 10:32 AM

He gets paid for this and you don’t.

gryphon202 on January 11, 2016 at 10:34 AM

It would be unwise to put the super-majority in place, even if there have been decisions conservatives and libertarians believe the court failed in their rendering.

No it wouldn’t. It would mean that instead of allowing 9 unelected bureaucrats in black robes rule over the American people, the American people would be better able to rule themselves, and if they didn’t like how they were being ruled, would be able to easily and quickly replace their representatives to achieve the laws they thought were best.

You seem determined to make sure that the people remain powerless in the name of “freedom.”

Stoic Patriot on January 11, 2016 at 10:37 AM

Aye. That I do agree with. From my younger years when I first found out about how FedGov blackmailed states into making the drinking age 21 with federal highway dollars, I always found that middleman tax regime to be ludicrious from any practical standpoint.

gryphon202 on January 11, 2016 at 10:30 AM

Technically, this “middleman tax regime” was supposed to be taking care of our army, courts, embassies, Post Office, and other national functions. The breaking moment was establishing federal departments with budget for sending money out to the states and/or individuals. It’s called “redistribution”, and it’s a worse incarnation of evil than the proverbial serpent.

Rix on January 11, 2016 at 10:38 AM

[Taylor Millard] want[s] to limit how much say the people have, and to instead codify [his] philosophy of all-freedom, all-the-time. Government no longer is an institution that is of, by, and for the people. Instead, it serves a narrowly-tailored objective of mandating libertarianism, and anyone who objects is told “Sorry, but unless your policies are in compliance with libertarianism, you don’t get a say.” Screw that.

Stoic Patriot on January 11, 2016 at 10:34 AM

…which raises an interesting point to me. Haven’t we descended into tyranny because We the People, if we didn’t think we wanted it, at least we allowed it? Our current situation and culture don’t speak to me of a people who is very deserving of freedom.

gryphon202 on January 11, 2016 at 10:38 AM

He gets paid for this and you don’t.

gryphon202 on January 11, 2016 at 10:34 AM

Can say same about Obama. Doesn’t mean we have to like him, right?

Rix on January 11, 2016 at 10:39 AM

Sometimes it’s helpful to take the politics out of things. So instead of talking about social security, gay marriage, or abortion, here is a completely non-political example.

Currently, if the SCOTUS declares that all jackrabbits are trees, there’s nothing that can be done about it. We are all forced to adjust our lives and laws in accordance with the idea that all jackrabbits are trees.

This shouldn’t be the case. When SCOTUS makes a nonsensical decision, there needs to be a way to override it.

Magicjava on January 11, 2016 at 10:39 AM

Technically, this “middleman tax regime” was supposed to be taking care of our army, courts, embassies, Post Office, and other national functions. The breaking moment was establishing federal departments with budget for sending money out to the states and/or individuals. It’s called “redistribution”, and it’s a worse incarnation of evil than the proverbial serpent.

Rix on January 11, 2016 at 10:38 AM

We could repeal the 16th amendment altogether and do just fine if that was all government was doing with our tax dollars.

gryphon202 on January 11, 2016 at 10:40 AM

Of course, it would be Miss Taylor writing the “bad” side. Maybe Gov. Abbott isn’t using enough emotion in his amendments?

Nutstuyu on January 11, 2016 at 10:41 AM

He gets paid for this and you don’t.

gryphon202 on January 11, 2016 at 10:34 AM

Can say same about Obama. Doesn’t mean we have to like him, right?

Rix on January 11, 2016 at 10:39 AM

Taylor Millard encapsules everything I despise about (whatever it is he claims to be…libertarian? Movement conservative? Whatever!)

gryphon202 on January 11, 2016 at 10:41 AM

He gets paid for this and you don’t.

gryphon202 on January 11, 2016 at 10:34 AM

So do prostitutes…

Nutstuyu on January 11, 2016 at 10:42 AM

He gets paid for this and you don’t.

gryphon202 on January 11, 2016 at 10:34 AM

So do prostitutes…

Nutstuyu on January 11, 2016 at 10:42 AM

Geez. You guys seem to think I like Taylor. I’m only envious of how he gets paid to write utter garbage. My admiration doesn’t go any farther than that.

gryphon202 on January 11, 2016 at 10:44 AM

Geez. You guys seem to think I like Taylor. I’m only envious of how he gets paid to write utter garbage. My admiration doesn’t go any farther than that.

gryphon202 on January 11, 2016 at 10:44 AM

Well, you lick the right butts and the money will find you.

Rix on January 11, 2016 at 10:49 AM

Geez. You guys seem to think I like Taylor. I’m only envious of how he gets paid to write utter garbage. My admiration doesn’t go any farther than that.

gryphon202 on January 11, 2016 at 10:44 AM

Thanks for explaining it. Now I can get back to writing my book, which I do get paid for, instead of wasting time to come up with a clever riposte.

vityas on January 11, 2016 at 10:51 AM

Geez. You guys seem to think I like Taylor. I’m only envious of how he gets paid to write utter garbage. My admiration doesn’t go any farther than that.

gryphon202 on January 11, 2016 at 10:44 AM

Well, you lick the right butts and the money will find you.

Rix on January 11, 2016 at 10:49 AM

There’s money, and then there’s dignity. I refuse to sacrifice the latter for the former. I guess not everyone in the “conservative” punditocracy shares my feelings on this particular matter.

gryphon202 on January 11, 2016 at 10:52 AM

We could repeal the 16th amendment altogether and do just fine if that was all government was doing with our tax dollars.

gryphon202 on January 11, 2016 at 10:40 AM

That would require a rather large number of states agreeing to do so – and don’t count on New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Delaware, Vermont, Hawaii, Illinois or Maryland. On the other hand, halting tax remittances only requires a single dedicated state, or a small group thereof.

Rix on January 11, 2016 at 10:52 AM

That would require a rather large number of states agreeing to do so – and don’t count on New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Delaware, Vermont, Hawaii, Illinois or Maryland, California, Oregon, and Washington. In fact, here goes your chance for 38 ratifications. On the other hand, halting tax remittances only requires a single dedicated state, or a small group thereof.

Rix on January 11, 2016 at 10:52 AM

Rix on January 11, 2016 at 10:53 AM

That would require a rather large number of states agreeing to do so – and don’t count on New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Delaware, Vermont, Hawaii, Illinois or Maryland. On the other hand, halting tax remittances only requires a single dedicated state, or a small group thereof.

Rix on January 11, 2016 at 10:52 AM

I’ve been saying for years that nullification acts in state legislatures would do far more to restore freedom than would an Article V convention. And for that, I am often called a “war monger” for supposedly desiring a repeat of the Civil War. For God’s sake, did Abraham Lincoln really mold us into a nation of effete cowards? Sure looks like it to me…

gryphon202 on January 11, 2016 at 10:55 AM

That would require a rather large number of states agreeing to do so – and don’t count on New York, New Jersey, Connecticut, Massachusetts, Rhode Island, Delaware, Vermont, Hawaii, Illinois or Maryland, California, Oregon, and Washington. In fact, here goes your chance for 38 ratifications. On the other hand, halting tax remittances only requires a single dedicated state, or a small group thereof.

Rix on January 11, 2016 at 10:52 AM

Rix on January 11, 2016 at 10:53 AM

Also worth noting, I think an argument could be made that the states would be on shakier legal grounds to unilaterally half tax remittance without at least a token effort to get rid of the tax code’s constitutional underpinnings. No matter the chance of it actually happening, I think working to repeal the 16th amendment is just the right thing to do.

gryphon202 on January 11, 2016 at 10:57 AM

Geez. You guys seem to think I like Taylor. I’m only envious of how he gets paid to write utter garbage. My admiration doesn’t go any farther than that.

gryphon202 on January 11, 2016 at 10:44 AM

We were just beginning to think Taylor likes to wear socks with gryphon202 written on them.

Nutstuyu on January 11, 2016 at 11:05 AM

We were just beginning to think Taylor likes to wear socks with gryphon202 written on them.

Nutstuyu on January 11, 2016 at 11:05 AM

Oh man, why you gotta be like that, Nuts?

gryphon202 on January 11, 2016 at 11:06 AM

My amendments to Abbott’s amendments:

I. Prohibit Congress from regulating activity that occurs wholly within one State.

Matters like justice should be standard across the country so long as we have a country. If we can’t agree on a set of criminal law, we have no business maintaining a unified nation.

II. Require Congress to balance its budget.

A good idea much of the time, but wars and national emergencies may require that we be able to engage in deficit spending, and if it ever turned out that Keynesian economic theory was in fact correct, would serve as an obstacle to good policy.

III. Prohibit administrative agencies—and the unelected bureaucrats that staff them—from creating federal law.

Left as is. This is good.

IV. Prohibit administrative agencies — and the unelected bureaucrats that staff them — from preempting state law.

I see this as unnecessary. They can only take actions which they have authority to engage in from enabling statutes.

V. Allow a two-thirds three-fifths majority of the States to override a U.S. Supreme Court decision.

Two-thirds is excessive deference to unelected judges. Three-fifths means you still need significant agreement, but that the people themselves are in charge rather than consistently overruled despite a solid majority.

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

Left as is. This is good.

VII. 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.

As with Amendment I, there’s no point in having a unified country if you don’t have a common set of values. I’d be much more comfortable with secession than with this “your state does your thing, and my state does my thing, and we have one country still even though we agree on nothing” schtick.

VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds, and allow common citizens to have standing when suing over the non-enforcement of existing law.

Added a needed clause.

IX. Allow a two-thirds three-fifths majority of the States to override a federal law or regulation, and subject all overturned laws to a national referendum.

Again, delegate more power to the people themselves.

Stoic Patriot on January 11, 2016 at 11:07 AM

For God’s sake, did Abraham Lincoln really mold us into a nation of effete cowards? Sure looks like it to me…

gryphon202 on January 11, 2016 at 10:55 AM

A brief answer is “yes”. The Civil War outcome had aptly demonstrated that one cannot beat tyranny by being noble or having a just cause.

Also worth noting, I think an argument could be made that the states would be on shakier legal grounds to unilaterally half tax remittance without at least a token effort to get rid of the tax code’s constitutional underpinnings. No matter the chance of it actually happening, I think working to repeal the 16th amendment is just the right thing to do.

gryphon202 on January 11, 2016 at 10:57 AM

The repeal of the Sixteenth will never happen as long as there are 13 true-blue states in cahoots with the DC.

Rix on January 11, 2016 at 11:11 AM

The Civil War outcome had aptly demonstrated that one cannot beat tyranny by being noble or having a just cause.

Sad. Correct analysis, but sad.

The repeal of the Sixteenth will never happen as long as there are 13 true-blue states in cahoots with the DC.

Rix on January 11, 2016 at 11:11 AM

Again, I don’t think that means we shouldn’t try…though I do fear you are right.

gryphon202 on January 11, 2016 at 11:17 AM

If congress would impeach a spreme court justice for ruling outside of his/her mandate we would not need a Constitutional change.

Lonetown on January 11, 2016 at 11:18 AM

If congress would impeach a spreme court justice for ruling outside of his/her mandate we would not need a Constitutional change.

Lonetown on January 11, 2016 at 11:18 AM

If every congressweasel, executive employee, and federal judge who acted outside the constitution were removed from office, we wouldn’t have a federal government left.

gryphon202 on January 11, 2016 at 11:22 AM

If every congressweasel, executive employee, and federal judge who acted outside the constitution were removed from office, we wouldn’t have a federal government left.

gryphon202 on January 11, 2016 at 11:22 AM

I’m not seeing the bad there. It’s not like it’s the 18th century and 13 tiny colonies need to band together to stand up to the mighty British Empire. Most of the individual states are themselves larger and more powerful than most other countries.

Nutstuyu on January 11, 2016 at 11:25 AM

I’m not seeing the bad there. It’s not like it’s the 18th century and 13 tiny colonies need to band together to stand up to the mighty British Empire. Most of the individual states are themselves larger and more powerful than most other countries.

Nutstuyu on January 11, 2016 at 11:25 AM

It may yet come to that. But I’m in the “the constitution will work just fine if it’s followed as the framers intended it” camp.

gryphon202 on January 11, 2016 at 11:27 AM

Right NOW 3/4 of the states can do what Taylor is afraid of. Remember in addition to Article V Conventions and Congressional proposals, 3/4 of the states can amend the Constitution in all the ways that Taylor fears. It’s hard to do, and will remain so, for a reason.

hburns on January 11, 2016 at 11:29 AM

Who is Taylor Millard?
What’s his educational and professional background that I should entertain anything he says?

vityas on January 11, 2016 at 10:32 AM

…I’ll tell you ….but it will cost you $25 to a gofundme account!

JugEarsButtHurt on January 11, 2016 at 11:33 AM

It may yet come to that. But I’m in the “the constitution will work just fine if it’s followed as the framers intended it” camp.

gryphon202 on January 11, 2016 at 11:27 AM

It’s like to say “the body will work just fine is it’s working as god created it”, even though there is a dagger protruding from the back. The framers never intended or envisioned the Sixteenth, which is completely alien to the spirit of the Constitution, and provides the ultimate source of federal power.

Rix on January 11, 2016 at 11:35 AM

There is a simpler,more effective way of reigning in the Court. Amend the Constitution to limit the term of a SCOTUS Justice to 12 years after which point he must run in a retention election. Require a 60% no vote to remove the Justice. You need a supermajority because sometimes standing up for the Constitution is unpopular. If they want to legislate from the bench then they should face the electorate. My guess is that even liberal judges will be less inclined to see pnumbras and emanations coming from the document.

jerryofva on January 11, 2016 at 11:36 AM

vityas on January 11, 2016 at 10:32 AM

…I’ll tell you ….but it will cost you $25 to a gofundme account!

JugEarsButtHurt on January 11, 2016 at 11:33 AM

Do you also need some cigarettes and vanilla creamer?

Nutstuyu on January 11, 2016 at 11:36 AM

The framers never intended or envisioned the Sixteenth, which is completely alien to the spirit of the Constitution, and provides the ultimate source of federal power.

Rix on January 11, 2016 at 11:35 AM

Actually, they did:

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

Nutstuyu on January 11, 2016 at 11:38 AM

The problem is Abbott forgets what could happen if the wrong people get in power.

The answer is, we’re screwed. But that’s an inevitable feature of any kind of self-rule. No amendment can prevent the wrong kind of people from being voted into power. All you can do is create structural requirements to make it harder for a slight majority of bad people to ruin the lives of everyone.

Which is why I don’t consider this a valid objection at all. Yes, a majority of states could overrule a SCOTUS decision, but it requires a super-majority of states to agree the decision is bad.

Now consider the alternative: allowing elite legal opinion to declare the Constitution means something it doesn’t say. Examples abound, such as abortion, same-sex marriage, contraceptives, declaring laws against sodomy to be unconstitutional. Whether or not you like the SCOTUS decision in these cases, they all share some common ground, in that the Constitution says nothing about abortion, marriage, or laws about sexual practices. And therefore SCOTUS should have refused to get involved in any of these examples. That is the very meaning of enumerated powers and the Tenth Amendment.

Unfortunately, there’s no real way to create an Amendment saying, “Supreme Court Justices should not read into the Constitution what is not already there.” The only real check on their power is to create a check on their power, such as Congress or the states. Congress is usually the author of the statute being overriden, so it’s not the best choice for a check. Abbot proposes allowing a majority of states to override them — a super-majority to be safe.

The objection to requiring a super-majority of Justices to declare a law unconstitutional is similarly flawed. Yes, some 5-4 decisions have gone the conservative way, and you would hate to give up those victories in the future. But other 5-4 decisions have gone against us. No matter where you set the required majority — whether a bare majority as it is now, seven as Abbott proposes, or two-thirds (currently six) as I would prefer — some decisions are inevitably not going to go our way. The point of the supermajority requirement is that such laws can be overruled only when a sizable majority of justices agree.

But your objections do serve one good purpose: a reminder that there is no such thing as an amendment that will give conservatives — or libertarians — exactly what they want all the time. Every proposed amendment on Abbott’s list could wind up being used against conservatives at one point or another, because the same law binds all of us. The goal is to make it harder to do the wrong thing, but you can never make it impossible.

There Goes the Neighborhood on January 11, 2016 at 11:39 AM

Nutstuyu on January 11, 2016 at 11:38 AM

I stand thankfully corrected.

Rix on January 11, 2016 at 11:47 AM

The problem is Abbott forgets what could happen if the wrong people get in power.

The problem is it would add extra checks and balances on SCOTUS (who seem to have none currently); with a high hurdle to clear?
Not seeing the problem.

I don’t see this as worse; especially given a 2/3rds majority required to override… you’d need a LOT of “wrong people” to do anything with this that wasn’t already possible.

Say a majority of states decided to pass laws which mandated “trigger warnings,” and required all protests to meet “certain requirements” before they could be put on.

If a 2/3RDS MAJORITY of states decided on trigger warnings… what makes you think the President, and SCOTUS appointees wouldn’t follow that thought process as well?

gekkobear on January 11, 2016 at 11:48 AM

It may yet come to that. But I’m in the “the constitution will work just fine if it’s followed as the framers intended it” camp.

gryphon202 on January 11, 2016 at 11:27 AM

So, follow the 9th and 10th Amendments properly?
Ok… When will we start doing that?

gekkobear on January 11, 2016 at 11:51 AM

The “State Review” provision is a good one, but it’s unnecessary to require SCOTUS supermajorities BECAUSE the Circuit Breaker is there.
The State’s ability to review decisions makes the 5-4 decisions less of a problem, because States could reverse a bad decision.

Medbob on January 11, 2016 at 12:53 PM

Unfortunately, there’s no real way to create an Amendment saying, “Supreme Court Justices should not read into the Constitution what is not already there.”

Why not? You could craft an Amendment that states that interpretation of the Constitution is to be based on the Original intent, and that if there is any question on that score, you need to refer to The Federalist and the Proceedings of the Constitutional Convention to understand any passage.
The Doctrine of Original Intent would be a part of the amendment, as well as a re-iteration that any power that is not explicitly granted by the Constitution is denied to the legislature, the executive and the Courts.

You could then have another Amendment to define the exact meaning of the “welfare” clause of the Constitution. They have driven a truck thru that hole a bunch of times.

Medbob on January 11, 2016 at 1:01 PM

I think we need to take a closer look at Levin’s freedom amendments, which are intended to fix the structural problems in the constitution. Many of Abbott’s proposals are similar but as a whole Levin’s make more sense.

One of the amendments that Abbott missed was term limits. Levin proposes to term limit all members of Congress and the Supreme Court. This would go a long way toward making the Federal Government more responsive to the people and to the Constitution.

The bottom line is that we need a Convention of States. The resolution for each state should be vague enough to enable delegates to debate each of these proposed amendments. The resolution of the COS Project does the job. The delegates will be smart enough to construct the right amendments and the states will be political enough to ratify what works for them.

newjerseypatriot on January 11, 2016 at 1:27 PM

All the Article V naysayers come out of the woodwork.

MCGIRV on January 11, 2016 at 1:55 PM

Who is more likely to make a bad anti-freedom decision based on ideology – 37 states or 5 political appointee judges?

dentarthurdent on January 11, 2016 at 2:28 PM

The problem is Abbott forgets what could happen if the wrong people get in power. Say a majority of states decided to pass laws which mandated “trigger warnings,” and required all protests to meet “certain requirements” before they could be put on.

If the wrong people get in power?

Seems to me a fait accompli.

That’s the reason for Abbot’s proposal He hasn’t ‘forgotten what could happen’, he sees what has already happened.

If we held an Article V convention, I think we can find folks to send to it who will carefully consider these issues and ensure that the negotiated and ratified result provides the needed safeguards, just like the ones who came up with the original version of the US Constitution.

s1im on January 11, 2016 at 3:35 PM

I’d be completely happy to have one Amendment enacted.

Whereas the legislative authority of the United States is vested in the Congress,
NO civilian rule, regulation, or other such stricture shall have effect, except upon enactment per Article I of this Constitution.

Any such currently in effect as of the date of ratification of this Amendment shall be void five years afterwards, unless properly enacted per Article I.

The Congress of the United States is hereby PROHIBITED from delegating its Authority by any means, including the ratification of Treaties which might infringe or divert such Authority; or might infringe or divert the Rights of the American People or any Citizen thereof.

I think that covers it.

ReggieA on January 11, 2016 at 4:17 PM

It would be better to play the long game, and try to get more small government, pro-freedom politicians elected (and keep them accountable) than pass populist amendments which could blow up in the country’s face and hurt more than help.
———–
My grandchildren will be dead and that still won’t happen. I think that we are irretrievably lost…

Rich D on January 11, 2016 at 4:53 PM

I saw this post’s headline w/o the author’s name on the mobile version of Hot Air and immediately thought “That’s gotta be a Taylor Millard bleat.” I clicked on it & sure enough, it’s Millard’s work.

What’s this Vox refugee doing here with a byline on a putatively conservative blog? Allah jokes about being a RINO candy-ass, but he looks like Ted Cruz compared to Miss Millard.

OhioCoastie on January 11, 2016 at 7:16 PM

But Abbott is mistaken in his belief that allowing states to overturn federal law or Supreme Court decisions and requiring a super-majority of SCOTUS votes will actually solve the problem the U.S faces when it comes to the overreach of the federal government. It would be better to play the long game, and try to get more small government, pro-freedom politicians elected (and keep them accountable) than pass populist amendments which could blow up in the country’s face and hurt more than help.

My grandchildren will be dead and that still won’t happen. I think that we are irretrievably lost…

Rich D on January 11, 2016 at 4:53 PM

Been there.
Tried that.
Got shafted.

If this “long game” were as inevitable as presumed, then we wouldn’t need most of the Constitution – which was written by and for small government pro-freedom politicians who were, at least, responsible (and somewhat more accountable than now), but who knew that situation would not last.

AesopFan on January 12, 2016 at 1:27 AM

…But your objections do serve one good purpose: a reminder that there is no such thing as an amendment that will give conservatives — or libertarians — exactly what they want all the time. Every proposed amendment on Abbott’s list could wind up being used against conservatives at one point or another, because the same law binds all of us. The goal is to make it harder to do the wrong thing, but you can never make it impossible.

There Goes the Neighborhood on January 11, 2016 at 11:39 AM

Best of the contra-Millard analyses on offer (which includes most of the thread).

AesopFan on January 12, 2016 at 1:28 AM

The depth of this analysis of Abbott’s proposal is so shallow that you couldn’t wet the soles of your feet in it. Try again or surrender, please.

Jazz on January 11, 2016 at 9:54 AM

lol
I’m surprised the mods let you take this nom!
(.. you aren’t really THE Jazz, are you??)

AesopFan on January 12, 2016 at 1:29 AM

Wow. The ability to protect social security from being eliminated or put into the stock market are given as examples of flaws with this idea?

I think it’s actually an example of how frequently we just assume most people share our own point of view. It’s a reason to not have a small, insular group like SCOTUS having the final word on critical decisions.

Magicjava on January 11, 2016 at 10:22 AM

Indeed.
Not all Republicans, or even conservatives, have the same policy preferences across the board.

AesopFan on January 12, 2016 at 1:30 AM

The idea that 3/4 of the states are MORE likely to abuse their power to interpret or change the Constitution to a position of fewer liberties than the Supremes is beyond absurd. The people must always have a method of redress, as the power ultimately resides in them.

Your argument, Taylor, is based in misplaced reverence of the impartiality of the Court, which it demonstrably lacks.

Dolce Far Niente on January 11, 2016 at 9:54 AM

It’s not just Taylor’s argument, Dolce. It’s the same argument that many have made right here in these comments. My grandparents didn’t know what it looked like to be governed by leaders who followed the constitution, and they’re dead now.

gryphon202 on January 11, 2016 at 10:01 AM

Sad, but true.
Another article or amendment gets redacted (or some penumbra added) every year.

AesopFan on January 12, 2016 at 1:32 AM

Stoic Patriot

A good idea much of the time, but wars and national emergencies may require that we be able to engage in deficit spending, and if it ever turned out that Keynesian economic theory was in fact correct, would serve as an obstacle to good policy

I disagree. History has proven that the people are quite capable of solving national emergencies on their own without government interference. See Grover Cleveland when he vetoed the Texas Seed Bill. Keynesian economics is a proven failure.

As with Amendment I, there’s no point in having a unified country if you don’t have a common set of values. I’d be much more comfortable with secession than with this “your state does your thing, and my state does my thing, and we have one country still even though we agree on nothing” schtick

I see absolutely no reason why one state can’t have its own culture while another state has its own since that’s virtually how the U.S. operated in the early years of the republic after the Constitution was ratified. If every state is suppose to be uniform then why have different state constitutions? Set values yes, but the federal government was not designed to micromanage the states.

1redshirtxlg on January 12, 2016 at 7:27 AM