Friday, February 25, 2011

Anti-Obamacare Constitutional Amendment

So far twenty seven states have joined in the lawsuit against Obamacare. That is more than a majority, and most of the distance towards the thirty seven states that would be required to pass a constitutional amendment.

The last time a constitutional amendment was almost passed by a convention of the states was the repeal of prohibition. In order to maintain the precedent of constitutional amendments being passed first in congress, the congress acted quickly to pass the amendment before the states would.

Their concern is understandable, if base. The worry was that if the states were to pass the amendment it would be in effect a partial reversal of the trend towards the federalization of political power. This would embolden the states to constitutionally act against the federal government in other ways. Given that President Herbert Hoover was being very activist at the time to fight the Great Depression, sponsoring the programs that eventually were called the New Deal by President Franklin Roosevelt, any measure that emboldened the states against the federal government would be a disaster for federal power. Moreover a constitutional convention could easily go beyond whatever issues initially chartered it.

Given the polarized nature of the congress today, especially given that the Senate is controlled by the same party that passed Obamacare in the first place, it is unlikely that they would defensively pass any constitutional amendment that would weaken that measure. The constitution, meanwhile, forbids tampering with the amendment process.

Twenty seven states is still shy of the thirty seven states needed to call a constitutional amendment. Each additional state is that much harder to recruit. But if that number is reached by states joining the lawsuit then suddenly it becomes easy to call a constitutional convention.

The final problem is what would be the wording of the theoretical amendment. It is far too easy for this to go wrong, just as the congress that passed the twenty first amendment. The best possible outcome is for it to restore proper dimension to the Interstate Commerce Clause. Although Obamacare is a major expansion of the interpretation of that clause, it is a major expansion in the same direction as the previous major extension during the New Deal.

The best wording would be to restore the interpretation as understood by those who wrote it.

1. The federal government does not have the ability to regulate any commerce that takes place entirely in one state, no matter the effect that the intrastate commerce would have on interstate commerce.
2. The federal government does not have the authority to demand or forbid the manufacture, purchase, or sale of any good or service.

It may not be a perfect wording, but it is definitely a great place to start.

1 comment:

Anonymous said...

I agree emphatically, up to the point stating ... "The federal government does not have the authority to demand or forbid ...".

Just as government gets out of control when it subtley mutates from restriction to proscription,
so it does also when it diverts from "forbiding" to "demanding".

A government, properly understood under the US Constitution, should indeed be able to "forbid" (the distribution of nuclear secrets, for example).

In contrast, the societal wheels start to come off when the intrinsically liberal urge to assert required behavior is allowed to run amok.