Though labeled as a "Bill of Federalism" (as in "Bill of Rights") these suggested 10 constitutional amendments go well beyond federalism, narrowly defined.
The proposed amendments are quite a mixed bag:
Amendment 2 really just undoes the ahistorical reading of the commerce clause enshrined in Wickard v. Filburn. This ruling, indirectly a gift of FDR, essentially wrote all limits on federal activity out of the constitution. Reading this case in Mike McConnell's constitutional law class at Chicago, which I audited (but did all the readings for) as a graduate student was a real eye-opener for me. It was then that I realized that the court really just was making it up when they cared to and that, as the song goes, "all the crap I learned in high school" was just that.
Amendments 3 and 4 are very directly about federalism and seem to me to aim at restoring the balance between states and the federal government envisioned by the framers. No one very much seems to recall that the constitution was originally a contract among sovereign states and thus more like the EU in some ways than like the present US.
I am not sure that the empirical case for term limits, embodied in Amendment 7, has really been made. It might be better to enforce limits on the process of defining districts to make more of them competitive or to require instant runoff voting.
I think that Amendment 8's tying of the line-item budget veto to the state of the national debt is very clever, though the devel would be in the details here as the court and congress could conspire to undermine this via determinations of what is and what is not counted as public debt. Can borrowing escape this limit by being labeled a "trust fund"?
Overall, though, quite thought provoking.
I crossed paths with Randy a few times in graduate school when he was at UIC. My recollection is that he usually had two or three attractive female followers. Life is good as a libertarian law professor!
Who was my favorite student this term?
7 years ago
