It’s beginning to look a lot like Christmas. And Law & Liberty’s November forum, headlined by John McGinnis and Mike Rappaport, may have visions of constitutional amendments dancing in readers’ heads. All of the forum’s participants agreed on the desirability of Americans once again taking up the mantle of constitutional self-government and deciding for themselves what law is to govern them.
At the time of year when children are compiling their wish lists to send off to the North Pole, why not put together a constitutional amendment wish list? If St. Nick could drop us some new constitutional language down the chimney, what would be most important for restoring a healthy, self-governing federal republic?
Some of these are ideas for restorative amendments that would attempt to undo damage done to the original Constitution by the Supreme Court or the practice of the federal government. Others are changes made in the spirit of conservative reform. In keeping with most of our constitutional tradition, none are simply constitutional resolutions to contentious policy questions—however important they may be. Rather, they are structural and procedural provisions, just like the ones we used to know.
I also don’t presume to write the specific text of an Amendment. Policy wonks can check the list twice, and maybe some of these ideas will turn out not to be so nice when we try to put them into practice. I merely offer some ideas for fruitful discussion. So if all you want for Christmas is constitutional self-government, here’s a grown-up Christmas list:
Limiting the Commerce Clause: Obviously, in granting Congress the power to regulate “interstate commerce,” the framers and ratifiers actually meant any mundane detail of life that can possibly be linked back to a state line, right? Maybe not. The Court has, ever so slowly, walked back some of the most egregious uses of the Commerce Clause (including in its Obamacare opinion), but there’s still a long way to go. An amendment that specified that interstate commerce actually means what it says—commerce that is interstate—would be transformational. As a purely practical matter, this would probably require some clear and limited expansion of Congressional power to cover other areas that the bogus Commerce Clause interpretation has to this point been made to cover, but that most people would be unwilling to cede. We might recall old man Filburn and exhort, “My Wheat, My Choice.” It has a nice ring to it.
No Strings Attached: The federal government has also used the spending power to control state and local decisions, and even restrict the exercise of protected constitutional rights, by attaching conditions to federal funding. It is, as one book recently put it, a process of “Purchasing Submission.” “Of course, we respect the limits placed upon us by our venerable constitution and authorized by the sovereign people. But it would be a shame if something were to happen to your transportation money.” The tactic has been used for everything from a federal drinking age to higher-ed policies to limitations on free speech. Most recently, it has been used to put limitations on state tax policy through COVID relief. Some Republicans like it too. If Congress wants to give the states money, so be it. But that money can’t be a bribe or a threat used to control things that Congress is not constitutionally authorized to legislate on. In NFIB v. Sebelius and elsewhere, the Court has also taken tentative steps in this direction. Let the Constitution declare it louder for the people in the back: If the power is not given, it is reserved.
Specifying the Taxing Power: Roberts giveth and Roberts taketh away. Even as the Chief Justice with one hand advanced potential limitations on the Commerce Clause and spending power in NFIB v. Sebelius, he practically mooted the point by making the taxing power a catchall. Eat your broccoli or be ready to hear from the IRS! And Roberts was hardly the first to find such uses for taxation. “The power to tax is the power to destroy,” John Marshall declared when striking down a state tax. The same goes for federal ones. An amendment that specifies precise methods of allowable federal taxation (is it getting carried away to suggest eliminating the income tax?) could limit the social and economic micromanagement that can be undertaken through the power.
Nondelegation: The Court, in theory, affirms the principle of non-delegation deriving from the words of Article I: “All legislative Powers herein granted shall be vested in a Congress of the United States.” But it has not invoked it for nearly a century, allowing Congress to hand off its legislative responsibility on a host of issues to executive agencies. Not only does this undermine representative self-government by making America a nation governed by bureaucrats, it has also contributed to the institutional rot in the legislative branch, with Congressmen more than happy to hand off the more difficult legislative responsibilities so they can have more time to post on Insta. Could we come up with a firm rule that dictates the sort of substantive policy choices that must come straight from the horse’s mouth?
Repeal of US Term Limits v. Thornton: Term limits have been on conservatives’ wish lists for a long time, but there is a sizable contingent on the right that questions their usefulness. I am personally torn on the question, and would actually say I lean against their utility. The case for term limits is obvious: Nobody likes the idea of a career politician taking up residence in the halls of Congress for half a century. The problem is that freshman lawmakers are no better—in fact, they’re often worse! And they may be more inclined to treat the institution merely as a springboard to higher office or, increasingly, to celebrity. But this kind of debate just shows what Thornton took away: the right of the people to sort out the question for themselves. Thornton was wrong—the Constitution doesn’t forbid term limits. That could be made explicit, and the states be made free to decide.
Supreme Court Appointments: For now, at least, conservatives are pretty happy with the Supreme Court. But there’s no denying that it has problems—especially when it comes to the nomination of justices. I’ve written elsewhere in favor of a couple of significant reforms to the Court’s makeup, including a proposal (once floated by now-Sen. Josh Hawley) for filling the Court with a rotating slate of judges from the lower courts. Whether it’s this or something better, we should have a system that doesn’t bring up the potential for crisis every time there’s a vacancy. Our constitutional order shouldn’t rely on the right person dying during the right presidency.
Repeal Seventeen: This has also been a popular talking point on the right for some time. No one can claim with a straight face that the direct election of senators gets us the best and brightest. Appointment probably wouldn’t be a panacea, but adding an extra degree of separation between the upper house and the cesspool of mass electoral politics couldn’t hurt.
War Powers: Another instance of bringing us back to the original meaning of the Constitution: “Congress shall have the Power . . . To declare War.” At a time when the United States insists on carrying the mantle of “global leadership,” the very least we can ask is that our representatives make the decisions. Some improvement on the War Powers Act (its framework is not enough) enshrined into the Constitution should make it much more difficult for presidents to commit sons and daughters to fight in whatever global conflict is in the national interest this week.
A Balanced Budget Amendment: Almost all the states can do it. Germany can do it. But it’s too radical for the federal government, right? Well, it would be a radical change from the DC status quo, which both parties have every incentive to maintain. Beyond the intrinsic good of fiscal discipline, a balanced budget amendment would also be a check on a host of meddlesome social and economic experiments the federal government undertakes every year. Enthusiasm for such projects wanes when the bill comes due.
Of course, there won’t be amendments in America this Christmas. Indeed, once you grow up and find out the less magical way this sort of present gets to be under the tree, it makes you anticipate a blue Christmas. But it doesn’t hurt to think about the structural problems our political order deals with, and some potential ways they might be remedied, if only in our dreams.