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A Modest Proposal

The chief justice threw down the gauntlet on Thursday to those of us who support limited government.

by
Rand Simberg

Bio

June 29, 2012 - 12:07 am

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 am not a lawyer, and don’t even play one on the Internet, despite my disquisitions on space property rights, but here are my proposed Constitutional amendments. Together, if there is any justice, they will be known historically as the “ObamaCare amendments.”

First, to deal with the Ninth:

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.

And here’s the one to handle the Tenth:

Congress shall not withhold federal funding for a state under any federal program because it does not comply with Congressional dictates.

Can someone tell me why a) this wouldn’t make it clear that “We the Founders really meant it” when they wrote amendments nine and ten and b) it wouldn’t be a great Republican Party plank and campaign issue in the fall?

Obviously, it’s a monumental task to take back the country. Absent a Constitutional Convention, which requires two thirds of states to call it, it requires a two-thirds majority in both the House and the Senate (though the president has no role). It obviously won’t happen with the current Congress, or one that we can elect next year. But there are a lot of Democrats who are vulnerable in 2014, and the only way to make it happen is to make it a project of the people who want to restrict government. It won’t happen overnight, but the time to start to make it happen is now.

The chief justice started to close down the Commerce Clause loophole for the statists. Time to start to close down the other one as well. I welcome improvements on my proposal in comments, and at other web sites, particularly from people trained to look for loopholes.

(Thumbnail image on PJM homepage by Shutterstock.com.)

Rand Simberg is a recovering aerospace engineer and a consultant in space commercialization, space tourism and Internet security. He offers occasionally biting commentary about infinity and beyond at his weblog, Transterrestrial Musings.
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