A Modest Proposal
Whatever he intended — obviously I can’t get into his mind — the chief justice threw down the gauntlet on Thursday to those of us who supported limited government, and laid out a goal. Actually, two — a short-term one, and a longer-term one.
First, he has buttressed the backstop first put in place seventeen years ago, with the Lopez ruling, which said, despite the Wickard precedent, on which the statists had relied for over half a century to justify their predations on freedom, that the Commerce Clause did not grant unlimited authority to the Congress to make the Ninth and Tenth Amendments (which describe the limits of the federal government over the people and the states, respectively) a nullity.
But second, he provided an opening to close the second loophole that he exposed in the current interpretation of the Constitution.
The first and obvious one is that we need to elect a president and a Congress (both houses) in November that will overturn this legislative atrocity. I’m pretty sure, given the word that former governor Romney’s fundraising exploded when the news broke and that the Tea Parties are rallying in reaction, that this is likely to happen.
But I want to talk about the longer term action that needs to take place, particularly since, even though it will take a while, we should start fighting for it now, in this campaign. It should be both an issue and a plank (or multiple planks) in the platform of the Republican convention.
Chief Justice Roberts, advertently or otherwise, has pointed out a flaw in the founding document, and we should use this opportunity, with the anger of the public, to patch it. I propose that we amend the Constitution.
I believe your sanguine view of progress on the Commerce Clause is risky. With less personal qualification and more reserve, I propose another amendment designed to clarify said Commerce Clause:
Regarding Article I, Section 8, Clause 3 ([The Congress shall have Power] To regulate Commerce with foreign Nations, and among the several States, and with the Indian tribes …) as it applies in particular to commerce among the several States, the following clarifications shall henceforth apply: there shall be no penumbras nor emanations, no implied meanings or legal sophistries permitted to extend the meaning of “commerce among the several states” beyond actual occurrences of commerce. Unless and until there is an actual exchange of goods and services between two or more parties that physically crosses state lines, interstate commerce shall not be construed to exist and shall not be legislated or controlled by the Federal Government. At such time as interstate commerce shall be legislated and controlled, it shall be done in as particular and specific a manner as possible to said commercial transaction.
I sincerely doubt if there are many Senators or Congressmen willing to carry this torch, but Governors may be a different matter.
It further needs to be clarified that the existence of interstate commerce and the right to regulate “commerce” does not mean that Congress can regulate the products of said commerce, e.g. Congress can’t mandate that insurance companies offer certain levels of coverage. They can only regulate the actual sale of insurance.
Congress can’t us the CC to regulate how cars should be manufactured, the contents of dish washing detergent, light bulbs, etc.
“The Congress shall have Power to regulate Commerce among the several States, and this time we mean it, especially the words ‘regulate’ & ‘commerce’, and the phrase ‘among the several States’.”
simpler yet, and solidly in keeping with the original intent of the Framers… they used the term “regulate” in the sense of making regular, as one “regulates” a clock to make sure it works properly and correctly. What their intent was is that no state can impose any restriction, tas, duty, requirements, on trade between itself and other states, in other words, that state borders were to be transparent and permeable in regards trade and commerce. The Framers did NOT intend for the legislators to make laws, rules, requirements, restrictioins, etc, meddling with every aspect of anything that could, would, or did, move between two or more states. Wickard was a travesty, and needs taken down. When it comes to intestate commerce, until one state is throwing up roadblocks or imposing duties in restriction of interstate commerce, Congress have nothing to say or do in the matter. When Texas suddenly decides cattle, or cars, from Arizona can’t come into Texas, then its time to act. When California decides any cars coming in from any other state can’t come in to California without meeting certain special standards, then action is needed… as is now the case but does not happen.
Make the ammdnement to the Tenth simple. merely redefining the word “regulate” to clarify it means assure commerce between the several states in unrestricted. End of story. that would, presumably, end restrictions currently in place on health insurance, which cannot be sold across state lines.. a stupid and costly restriction of interstate commerce that Congress ought to correct.. but has not.
I think you’ve got it nailed. Ensuring that borders are transparent with respect to trade and commerce would go a long way to encourage free enterprise and support the original intention of the Commerce Clause.
Yup! Both you and Tionico have it nailed. Simply put, the Constitution’s plain language is not so inscrutable as subsequent case law gyrations have made us accustomed to believe. It was designed to be readable and understandable by any citizen who was basically literate, which in its time meant that any 6th-grader could read it, and any 10th-grader understand its finer points. Come to think, a 10th-grade education was pretty much the max. which most people commonly obtained in the late 18th century.
The Constitution did not require, nor was meant to require, a Harvard Law degree to be understood, let alone “interpreted”. Its “perversions” since then are the result of a multitude of lawyers and judges “futzing” with it to try to make it serve their political “friends”, and well-paying clients’ momentary desires. Such activity would be a problem for any document of rules formulated in human language, however plain.
There will always be somebody who doesn’t like some rule, finds it in the way of his goals, and therefore seeks ways “around it”, some other meaning for the word or phrase he deems most obstructive. Not to overlook those who have goals they wish to conceal from their opponents until “the deed be done”! Thus nature takes its course. The ultimate result is what we are experiencing in present times.
For all of this there is only one true remedy: The unenforceable basic honesty, and consensus of all participants, to recognize the plain meaning as being the only intended “true” meaning; the manifest recognition by all parties that it were better to lose a case on “honest grounds” than to prevail by means of some linguistic trickery wedded to sophistry. In that sense, to be required of all litigants would be the abiding knowledge that an “unperverted” constitutional document is the only bulwark which is ultimately able to fend off a state of barbaric chaos, and properly understood the only one needed.
Alas, this consensus has vanished from our current culture, and I fear there is no “readjustment” to the language of any of the Constitution’s sections, paragraphs, or amendments, which will resupply the missing consensus required to prevent future abuse. That key ingredient will have to be resupplied by a cultural renaissance.
I do have one idea, really a notion, which might be helpful toward such an end. It might be useful to instruct law students attending Constitutional Law classes, that all the principles and practices from their study of Common Law and its processes, such as “stare decisis” as a basis for argument based upon precedents, do not apply and are not to be applied to cases at Constitutional law without extreme caution. Such cases instead must be scrutinized on their plain merits on an individual basis, the Constitution’s plain language being their only proper measure. For, that is what a “living Constitution” is meant to be: an absolute, a yardstick whose scale and length are meant to be neither compressed nor extended arbitrarily, lest the resulting measurement become falsified! That should be the philosophy empowering a “living” Constitution, quite opposed to the currently favored “progressive” variant.
Last, not least, our real current problems are not merely the result of two centuries of “twisting” the meanings of plain language, nor of any inherent original flaw(s) in the document. The chief problem the ACA ruling has identified is Congress’ practically unlimited power(s) of taxation. With or without this ruling, these exist. A beast capable of virtually unlimited growth, will grow, practically forever; ask any alligator. So, the “beast” is in desperate need of a “diet”. So, repeal the most injurious amendment, I think it is the 16th, giving Congress the power to tax incomes from any source, and replace it with something considerably more restrictive. Maybe one of the “fair tax” schemes, or a Vat, whatever is likely to provide an adequate level of federal funding, while limiting an increase to such funding to the percentage of real GDP growth in the private sector. Now, there’s a “real” challenge!
“With yesterday’s ruling, Justice Roberts has begun to close down the Commerce Clause loophole.”
He has done no such thing. One more leftist, assuming Roberts is not one, on the court and they will do whatever they want.
Oh, don’t bew a dope. Change the composition of the Court and there’s always a chance they’ll do what they want.
Actually, it seems like the Roberts court has established for the goverment a power to tax ANYTHING – windows, grills, breathing, gun ownership, etc.
seeing as how govt can now tax inactivity, it would appear it can just about anything. Usually you are taxed on the things you actually do – the purchases you make, the income you earn, etc. Now, you can be “taxed” for NOT doing something, like buying health insurance.
“seeing as how govt can now tax inactivity”
Homer Simpson hit hardest.
They have always had the power to tax anything (Article 1. Section 8.) Roberts has only pointed this out which should be a wake up call. It’s been right there in black and white since the beginning.
The only protection we’ve ever had is who we choose to represent us. Roberts clearly stated the truth that elections have consequences. Are We the People adult enough to take responsibility for those consequences?
This next election is going to be a landslide. Afterward, we will find out if the adults are going to take their responsibilities seriously.
Beautifully articulated. Roberts has got the ball rolling to eviscerate the Democrats legislatively. Spending must now go through Congress, instead of being finagled via the Commerce clause. And all spending bills must originate in the House. Who controls the House? This legislative abortion(ACA) can now be finally put to bed, permanently. And the sweet thing is Roberts gave them what they wanted. Oh, the irony.
And he said it is not in the purview of the court to save the people from their own ignorance. He’s giving the country a wake up call and he’s shown us the way to save ourselves. He has done all he can do. Under our form of government the people elect their representatives, ergo it is OUR fault. You live or die by your choices. We are perilously close the the grave.
…electric cars, CFLs, movie tickets, Angry Studies programs, union membership, registering as a DemoKKKrat, etc. I don’t presume to predict that any or all of these things will come under punitive taxation, but any plan that fails miserably when political power is given to one’s opponents is a bad one.
Considering that this decision makes it even more likely that Romney will beat the Newspaper (black and white and Red all over) like a redheaded Kenyan stepchild, and that the Republicans will flip the Senate and extend their hold on the House — with Tea Party, not Cocktail Party, candidates — perhaps liberals should have been more careful in what they wanted before they got it.
I agree. I dont buy this roberts master plan business. Precedents are meaningless unless they are actually applied to a law. If roberts really wanted his commerce clause restrictions to mean something, he would have honestly applied it to the mandate and struck it down. As it is, the only precedents he did set are all undesireable ones, like the following:
1. While there may be limits someday on the commerce power, the federal taxing power is now completely unlimited. The fed gov can tell you do do anything they want, by taxing you high enough if you dont do it.
2. And the lawmakers dont even have to call these taxes taxes, they can still call them mandates and penalties, to avoid taking the political heat for a tax hike. Then when they come before the court, Roberts will rewrite the legislation, usurping the job of congress, to magically transform your illegal penalty and mandate, into a legal tax. Then after the decision, you can ignore Roberts, having had him already do what you wanted, and still call them penalties and mandates (Pelosi just did that today, when she was asked whether the bill had a tax hike).
3. The leftist campaign to intimidate the court worked, Roberts caved, and gave them the law they wanted. Cowardly cave ins of this type do not “bolster the legidimacy of the court” they undermine it. The only way to really bolster the legidimacy of the court is to honestly apply the law, which roberts, in majically transforming an illegal mandate into a legal tax, did not do. And now the leftists know the court can be successfully bullied, and will be even worse in the future.
The only good side effect of this craven betrayal is we now know that we cannot rely on the court to protect our freedoms, only we the people can, by joining the tea party, and throwing out all the rascals that are usurping our freedoms, starting with obama and the dem senate. And if after the repubs take the presidency and senate, they still do not repeal this abomidable law, we throw them out too.
I don’t feel cheerful about this either. Remember, we counted on the Supreme Court to save us from the blatantly unconstitutional McCain-Feingold bill, and they upheld that travesty too. I’m tired of rolling the dice on the love of liberty treasured by eight conceited old Ivy League lawyers in black gowns, and Clarence Thomas (who’s the only one can be counted on).
How about: “If one or more justices of the Supreme Court subverts the clear meaning of any legal term (what is a tax?), said justice will be subject to immediate impeachment and removal from office, as well as criminal penalties [ or should this read 'criminal taxes'?].” It was an incompetent and/or fraudulent ruling, period, and there needs to be an avenue for redress of the people. There also needs to be an improvement in the reasoning power of the people who fail to see the criminality in this Obamacare ruling (as well as in the original passing of the law).
This I dont buy. Impeachment should be reserved for criminal behavior, like taking bribes or killing somebody, not just crappy decisions, or we would have no judges left at all, since almost all of them have made a crappy decision at one time or another. By your criteria, we would also have to impeach the 4 leftist justices, since they got it wrong on the commerce clause, while the left would want to impeach the 4 conservtive justices, since they think they are the ones that ogot it wrong. The better way to fix this is to keep winning elections, and appoint a solid 6-3 or 7-2 conservative majority. Then we can afford to have one justice defect like this, and still have a majority. And with a majority like that, it makes defections less likely anyway.
And he opened one implicitly more wide in the tax code.
Take off your rose colored glasses!
I think the chances of the states calling a constitutional convention, however small, are greater than the likelihood of getting amendments such as you propose out of the House and the Senate in the foreseeable future.
Constitutional conventions are risky – look at what the last one did to the Articles of Confederation – but a serious convention could:
1) repeal the direct election of senators (no congress would ever go along with this one, but the states might well….)
2) expressly limit the commerce power (overrule Wickard v. Filburn) and the taxing power — possibly with exceptions for periods of declared war
3) provide a president with a line item veto.
>>I think the chances of the states calling a constitutional convention, however small, are greater than the likelihood of getting amendments such as you propose out of the House and the Senate in the foreseeable future.<<
Exactly. Chances of something coming up from the states are nearly zero, but chances of them coming from DC are zero. Besides, even if something like was taking place, you have to assume the elites who rule the country from DC would allow it to happen. I don't think they would. Yes, I really do think they'd be capable of such a thing. Especially the current administration. They've yet to pay any attention to the niceties of tradition or the Constitution, why would they pay any attention to them on something like this?
Passing a constitutional amendment is an uncertain and long process. The beauty of the 10th amendment is that is has already been adopted. I think that what is missing is a clear enforcement example. The States Attorney Generals need to pick an egregious example of federal overreach (is that Obamacare?) and make a vocal example of if using the 10th amendment. The power of working together, as a group, applies to states as well as to the rest of us.
You still need control of enough state legislatures to ratify. If you have that then those states can be used to introduce an amendment. This is why state-wide elections are important, arguably more important than the congressional or presidential elections since they provide the bench strength for congressional parties. As important as the ’10 Congressional races were, the real bloodbath occurred at the state level.
Change is usually slow in the system we have. Control enough states and you’ll control Congress and present a credible threat to amend the Constitution. Even approaching that level of control provides a credible threat of an Article 5 convention that will put the fear of God into political elites since they have no guarantee of control or outcome then. Similar threats have worked before.
Unfortunately there is too much of a risk for me that such a cnvention would be hijacked by leftists, and they would come up with something that is even worse. I think the only real solution is for we the people to keep throwing the rascals out, starting with obama and the dem senate, and hope that over time we finally get a political class that is less corrupt than the present one. We will know our effort has succeeded when the dem party finally starts their own version of the tea party, and starts reforming themselves.
I wish I could believe this was the takeaway from what happened yesterday, but I can’t. Been alive too long and seen too much fascist crap come out of DC from both parties. This mess of a decision merely opens the door for taxes on anything the Democrats don’t want you to do…gun ownership, being overweight, driving anything other than an electric car and on and on and on. It will never stop.
Chief Justice Roberts: “The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity.”
Really? Roberts is writing all alone when he does his Commerce Clause analysis and reaches this conclusion. No other Justice joins him in this portion of his opinion. So where does he get that the Court so holds? Although it is obvious the four joint dissenters agree, their opinion is only a dissent, it is not the law. So does the court really hold what Roberts says it holds? One more lefty judge on that court and they could easily dispense with what Roberts says the court “holds” today as so much obiter dictum. Am I wrong?
pie-in-the-sky, wishful-thinking, republican-apologizing-defensive spin.
sorry, a high-IQ factotum of the Noble House of Bush finds a weasel’s way to rationalize what the political class wants to push on the masses, straining to maintain the con that the regime is some sort of legitimate heir to the mythical Republic of the Constitution.
keep on voting for the republican party, and then
You will eat – bye and bye -
In that glorious land above the sky – way up high –
Work and pray – live on hay -
You’ll get pie in the sky when you die
(That’s a lie)
Jesus is Lord and God has raised Him from the dead. “Pie in the sky” is a lie only in the sense that it grossly understates what awaits us in Heaven, for “Eye has not seen, ear has not heard, nor has it entered into the hearts of men what God has ready for those who love Him.” He did, however, declare that He will put an end to death, and then rejoice with His saints in a banquet with the choicest meat and wine. “Yea though worms may eat this body, even so in my flesh shall I see my Lord; with my own eye, I shall see Him, not another’s.” Because He is risen, I shall rise, and because He died, I shall live.
Behold the Shroud of Turin, the photograph of Jesus’ Resurrection. Behold His empty tomb. Behold the testimony written in blood of those who saw Him arisen from the dead.
While we’re at it, let’s pass an amendment that takes away congress’ immunity from the laws they pass. Do you really think they would have passed this travesty if they were subject to it? This would be a start on keeping them honest.
Agreed. This is perhaps the most important piece of legislation that could be passed in our lifetime, because it would go a long way toward weeding out the people who are only in Congress for self-interests and giving us more legislators who are true public servants. And it might be easier to pass than term limits.
I would agree but I see this as a case where the cure is worse than the disease. We are now saddled with ObamaCare and the argument that it will encourage election of Conservatives or even Republicans and Romney I think are fallacious.
Roberts had a valid reason for killing the thing — it was passed fraudulently. He found that the Congress authority did not extend to this extent except if it was a tax so he simply declared that it was indeed a tax and then said that was OK.
Roberts clever maneuvering has placed us in the position where the “fix” to the commerce clause likely will not matter, the United States of America as a free society will have ceased to exist long before his cleverness will bear fruit.
How was this a corrective action to the misuse of the commerce clause by the left? Roberts simply gave lip service to misapplication of the clause. Essentially, he played the coward and kicked the can down the road.
He also opened a whole new can of worms by laying the precedent that Congress can compel us to do anything they want so long as there is a tax penalty for non-compliance.
I am sick of hearing the idiotic reaching by supposed intellectual conservatives straining to make the decision less disturbing than what it is. For those who want to mindlessly pretend that yet another republican-appointed turncoat hasn’t emmerged, Let’s examine:
If Roberts wanted to shut down the commerce clause, he could easily have voted with the dissent and killed the whole law.
If Roberts was using this as a “brilliant” method of setting up barry for a loss in November, then please do explain his Arizona ruling as well as his vote on the Stolen Valor Act. Not to mention, such a ridiculous plan as some are postulating has enormous risks to it. I’m not buying it for a second.
If Roberts wasn’t a panty-waste weasel worried about being on the A list for invites to all of the fine DC parties, he wouldn’t succumb to the “immense pressure” he was under. I’ll call him traitor myself. I’ve read enough of the ruling to see he completed legal gymnastics to rewrite the law (and ignore it originating in the Senate rather than the house, as the Constitution requires) so he could create a gigantic expansion of federal power (now anything is subject to congressional action by simply saying it is an exercise of the power to tax).
I wish I could argue with you but you pretty much nailed it.
Congress needs to pass a health care Tax?!?
Ha.
They can’t even consider a budget.
Poll Date Right Direction Wrong Track Spread
RCP Average 6/7 – 6/24 30.4 62.2 -31.8
NBC News/Wall St. Jrnl 6/20 – 6/24 31 61 -30
Rasmussen Reports 6/18 – 6/24 27 65 -38
Bloomberg 6/15 – 6/18 31 62 -31
Associated Press/GfK 6/14 – 6/18 31 60 -29
Reuters/Ipsos 6/7 – 6/11 32 63 -31
Congress has an approval rating of 17 percent,
and 79 percent of Americans disapprove
Roberts knows he just handed Obama and the Congress a huge slap down in November.
5 minutes after Mister Roberts decision,
Romney took in a million dollars,
today it is probably 2 million.
-
Thank you Mister Roberts.
One year from now we will be sending Mister Roberts flowers and candy,
or should we send buckets of ice for his hallway?
I like your proposed amendments. Simple and succinct, without getting bogged down in details, as so many attempts seem to devolve into.
But two changes which I would make– one, not “legitimate gov’t purpose” as that’s lawyer bait. How about “duties as enumerated in Article 1 of this constitution”. Make is explicit what is a “legitimate purpose”. Second, make sure to include a clause stating that the effect would be retroactive, that the new amemdment would apply to existing taxes. That would forestall any rush to enact taxes on everything once the number of ratifying states gets into the 30s.
Agreed. The fatal flaw in the new language is “legitimate government purposes.” The lefties already think they’ve served such purposes with Obamacare. They also think Big Gulps should be illegal and cell phone ownership is a basic humam right.
It has to be tried, but I don’t think any bill to rein in the power of Congress will pass.
“Congress shall not levy any tax on the people whose purpose is other than to raise revenue for legitimate government purposes, and in particular it shall not levy a tax on the people for the purpose of coercing their personal behavior, including purchase of a product.”
Nice idea and it will only take about, oh, 40 or 50 years to pass. Even Prohibition, probably the worst Constitutional Amendment ever written, took about 12 years to repeal. And in it’s wake it left a trail of destruction, murder, and death the country had never seen before AND it gave way to the rise of organized crime. So even something that horrible took over a decade to repeal. So pardon me if I’m not too optimistic about seeing your idea turned into reality anytime soon.
What we CAN do, though, is elect as many REAL conservatives to Congress as possible. That would do more to put the breaks on the Federal Government than anything else. And if we get a Republican president with some real stones, someone who will actually lead the way in repealing the many taxes and regulations that are killing this nation, then we may actually have a good battle plan for saving what’s left of this country.
Nothing will do it short of eliminating the whole ball of wax that our sclerotic Republic has become.
1. Sunset all laws, statutes, regulations and ordinances, and test all rewrites for constitutionality.
2. Limit all elective terms and eliminate pensions of elected and appointed officials.
3. Eliminate the Civil Service, privatize functions truly needed and drug test anyone left.
None of that will happen.
The FALL, despite dips and pauses like a falling leaf, remains unstoppable.
One thing I forgot to mention – If we want to control Congress’ power to tax, switching to a flat tax could solve a number of problems; including reducing the IRS to a manageable size.
I think this is an issue that can be solved fairly simply through the legislative process (simply he said…)
For dealing with the commerce clause issue, you have to correct the Wickard decision. This solution can get the government out of determining what you must/can do with your property.
To close the Tax issue…that I suspect shall need an amendment. Until/unless we the people can control Congress long enough to get it drafted and pushed to a convention…I see that as unlikely. Firstly, for the limitation it’d place on Congress.They are jealous on their powers, and would be unwilling to see it limited. Secondly, as mentioned in the article (and comments), the amendment process is lengthy and easily derailed.
Roberts to Congress – “Why use the tiny “Commerce Clause” side-door when you’ve got the double-wide barn doors of “Taxation” for easy access? If it moves and you want it stopped then tax it; if it’s stopped and you want it moving then tax it; if you don’t know what you want then tax it! The world is your taxable oyster!!”
Agree on the need for constitutional amendments. Roberts put the most modest cap on the Commerce Clause, Wickard was wrongly decided & Raich was a horrible extension of it. But here he opened up the biggest loophole ever with the taxing power.
So what do we want out of limits to the federal government’s commerce and tax powers? And what ways will they think of to run around such caps?
Roberts simply pointed to the gaping barn doors that have always been there.
Here’s the rub. No congresscritter or executive wants to be in the position of having proposed and legislated a new tax or a tax increase without the cover of the Commerce Clause or whatever other constitutional fairy dust that can be used to hide it. WE AMERICANS HATE TAXES, and we will vote out the simpletons who create it.
They can tax anything they have the balls to propose. But primarily, politicians want to keep their nice, cushy, isulated jobs at all costs.
Obama went to extreme lengths to call the individual mandate anything but what it is, because he knows that even the guilt ridden, self loathing Caucasian cohort that made 2008 the first National pity party, will defect and vote for the other guys.
I see the first proposed amendment as implicit in the existing Constitution. But the court has repeatedly proven that implicit won’t do the job protecting our liberties.
Both proposed would be of far less importance if the federal government didn’t have the power to directly tax individuals. When the amendment passed allowing that power, major loopholes were opened up.
On thinking about Justice Roberts opinion, I realized something. He’s right. There is nothing new about the Health Insurance Mandate other then the weasel wording of the name. We already have a lot of mandates.
We have income taxes. We have tax credits. Combined those form a mandate to perform an action and penalty for non-compliance.
There is no functional difference between a penalty for failing to buy health insurance and a tax credit for buying health insurance.
So in that sense we have mandates already; a college mandate (American Opportunity Tax Credit), a retirement mandate (Retirement Savings Contribution Credit), an adoption mandate (Adoption Tax Credit) and others.
The complexity of the tax code is what allows all this to occur. All Roberts did is point out that they’re doing this to us already.
My proposed amendment:
The entirety of the tax code, governing the revenue of United States from any source, may not exceed 20,000 characters in length. Any Citizen of the United States shall have standing to challenge the length of the tax code in court. None of the tax code shall be severable.
There is no functional difference between a penalty for failing to buy health insurance and a tax credit for buying health insurance.
There is a big functional difference between encouraging people to do X and punishing people for not doing X.
Two hypotheticals…
Tax Credit scenario:
Congress imposes a tax burden on me of $5000
If I buy health insurance I can get a credit for $4000
My choices: Pay $5000 to the government or pay $1000 and buy health insurance.
Penalty scenario:
Congress imposes a tax burden on me of $1000
If I don’t buy health insurance, I have to pay a $4000 penalty.
My choices: Pay $5000 to the government or pay $1000 and buy health insurance.
There is no functional difference between enacting the mandate and enacting a massive tax hike. Congress has the power to enact a massive tax hike.
Roberts recognized this. Our solution is to get Congress to act the way we want.
We need small government Congressmen. That would help us now.
We need to restrict Congress’ power to collect tax revenue. That would help us in the long term.
Forget these half measures – let’s work to repeal the 16th Amendment. That will do more to increase our freedom and return our country to its original principals that anything else we could do.
i’d like to see an amendment that forces congress to submit to the laws they pass for the rest of us. john edwards was right, there are two americas—politicians the the rest of us.
Congress shall not provide funding of any type, for any purpose, to any of the several states.
That should take care of the “do this or we won’t give you your money” garbage.
If the existing Constitution (as interpreted) no longer protects us, then it needs amending. Here is my proposed amendment:
A: Neither the Federal government nor any agency thereof shall require any private individual, group or company to purchase any good or service, nor apply any fine or tax for failure to do so.
B: Neither the Federal government nor any agency thereof shall provide goods or services in competition with private individuals or companies, nor provide funds to any individual, group or company except in return for goods and services. Any such activities ongoing at the time this amendment becomes law shall be terminated within the four ensuing years.
C: Neither the Federal government nor any agency thereof shall require the participation of any individual in any program or activity except voluntarily in return for benefits or as punishment for a crime.
That should about do it! Had this been law, not only would Obamacare have been impossible, but the housing bubble (fueled by Fannie Mae and Freddie Mac) and the student loan/inflated tuition mess could never have developed. It would also prevent any repeat of the insanely wasteful, debt-inflating bailout.
Great idea, except I would add “nor any State or subdivision thereof” after Federal agencies in the proposed amendment. Commandeering private income is no less reprehensible when done by state and local governments.
I think your Amendment approach is only a good intention. The trick here is to more narrowly define taxes, and create a law that unambiguously restricts laws that create new taxes to being more universal, to making them unlawful when they try to subsume criminal or civil penalties, or when applied to some interest groups and not to everyone, equally. Otherwise the tax code will continue to drive coalitions and party definitions, just as it is currently doing, with the net tax payers generally on one side of the political spectrum and the net tax receivers on the other.
The chief justice started to close down the Commerce Clause loophole for the statists
Great. He opened an even bigger loophole for them in exchange.
This is a disaster for the right. Another Republican ‘conservative’ justice on the Supreme Court has revealed himself to be a liberal.
The problem is that in reality-ville where all of us must live there is no way, no how, no possibility whatsoever that we could get 3/4 of Congress to go along with these amendments. We can’t even get more than 1/2 of the Supreme Court to give us an honest opinion. Even if Tea Party candidates sweep the House and Senate there will still be nowhere near 3/4 conservatives in the House with a bare majority of Republicans (and a MINORITY of conservatives) in the Senate. A constitutional convention could be an unmitigated disaster.
We can repeal the legislation but repealing the rationale for this opinion is going to take another Supreme Court justice and another over-reach of federal power- another monstrous piece of legislation in the future- because Obamacare is a done deal legally. There is now precedence that Congress can compel the SUBJECTS to engage in any act or buy any product simply by using financial penalties- Robertspeak for “Taxes.” The taxing power is the new commerce clause.
We don’t NEED 3/4 of Congress. We need majorities in 3/4 of State legislatures. We only need 2/3 of Congress, unless we use the Constitutional Convention option, in which case, we can bypass Congress entirely.
Your second amendment is nonsense. Try this one instead:
Congress shall make no law authorizing the transfer of federal funds to the several states for any reason whatsoever.
Nor commandeer or otherwise mandate the spending of monies raised by any State, except to secure the enforcement of valid contracts and the payment of debts.
And for the Second:
A stable monetary system being necessary for the preservation of a free State, the right of the people to keep, buy, and sell gold shall not be infringed.
Excellent ! Like that idea best ! Put the cabosh on the unauditable Fed without having to remove them. Keep them from lending money they don’t have to a Gov. rotating the presses ever faster to pay it back, while taking away ours to boot!
Really Good !
You’re delusional. Obamacare is clearly a case of forced sales, not a tax. For Judge John Retards to have to go out of his way to lie to pretend it’s a tax, when it wasn’t even framed like it was ever supposed to be on in it’s own legislation, proves he’s a closet statist lefty gangster… but then, we already all knew that, when he opined, during his own nomination process, that:
“No one has any real individual human rights, except those afforded to us by the state! Whee!”
This is a serious charge since it is a direct repudiation of the Declaration of Independence. I want to see a source for this claim.
Ditto ! You mean he actually said that, verbatim, during his Senate confirmation hearing?! If so, he had no business being confirmed in plain contradiction of our founding documents!
One day there will be a constitutional convention, but not the kind some of you envision. Those who say they would not trust the average citizen to correctly appoint convention delegates are right to be skeptical of the idea. But what we would likely have is a set of delegates that are not selected by popular vote, but rather by those who would set themselves up as the overseers of the convention–the military. In other words, I expect the nation to fall into such a crisis of confidence in our government’s integrity that patriots in the military will mount a coup, declare martial law, disband Congress, take over the courts, initiate criminal proceedings against key criminals in same, and announce a constitutional convention to correct the mistakes of the past 200 years. After all, the delegates assembled to write and ratify the original constitution weren’t chosen by popular vote. They were selected by the governments of the colonies from among their best and brightest. And something like that would need to happen again.
It’s good that so many people are thinking about the revisions that should be made. It’s great preparation for that great day.
The 16th Amendment should be revoked. Every other measure will fail. The States should then tax their citizens and pay for programs their citizens want and can afford.
Sounds like a plan. The hard part is making it happen in this political climate, or for that matter, any political climate that we have had for the better part of a century.
How about this one:
Amendment: Congress shall grant no modification, diminution, waiver, or rebate of any tax or portion of tax whose intent is to coerce, incentivize, encourage, or otherwise promote any activity, economic or otherwise. This provision shall pertain to natural persons, voluntary association of persons, and statutory economic associations created by Congress or the several states.
Your proposed amendmeent would have been rejected in the 1800s because it would bar “protective” tariffs. Such tariffs were not imposed to collect revenue, but to discourage the purchase of imported goods. In the days of the Whig-Democrat battles, the Democrats called for “tariff for revenue only”; Whigs (such as Henry Clay and Abraham Lincoln) called for a protective tariff.
The amendment would also terminate laws which impose excise taxes on goods that are illegal under state law – thus making the illegal traffic in such goods a Federal crime, even within a state. I am thinking of the Marijuana Tax Act, for instance.
It might well be a good idea to exclude from the revenue process all considerations other than net collections; but I don’t see how. Taxation can be for revenue and still have other effects – almost always will. Without an explicit declaration of intent to affect behavior, there’s nothing for the amendment to act on.
Let me tell you how it will be
There’s one for you, nineteen for me
‘Cause I’m the taxman, yeah, I’m the taxman
Should five per cent appear too small
Be thankful I don’t take it all
‘Cause I’m the taxman, yeah I’m the taxman
If you drive a car, I’ll tax the street,
If you try to sit, I’ll tax your seat.
If you get too cold I’ll tax the heat,
If you take a walk, I’ll tax your feet.
Don’t ask me what I want it for
If you don’t want to pay some more
‘Cause I’m the taxman, yeah, I’m the taxman