Saturday, May 30, 2009

The Problems With Barnett's Bill

Barnett's Bill has ten clauses, and none of them involve repealing the Seventeenth Amendment.

1. Repealing the income tax: This is the first one, and it is the one people are most likely to support.

2. Limiting the necessary and proper clause: It's a good idea to limit it, and Barnett's proposal deals with some of the technical language the Supreme Court has created in order to twist the clause into its current meaning. But without dealing with the Court's "power of declaring what the law is, ad libitum, by sapping and mining slyly and without alarm the foundations of the Constitution", the real problem is not addressed. This would have been the place to deal with Jefferson's critiques.

3. Unfunded mandates: Unfunded mandates give states more freedom than "funded" mandates. It's really very simple to see why. Since the money always comes from the same place, a "funded" mandate is merely a requirement that the money be raised in a particular way while an unfunded mandate gives the state the flexibility to raise the money in any way the people see fit. Don't let the words used to label these things deceive you into thinking they're something they're not.

4. Limiting the treaty power: Barnett's proposal again deals with some of the technical issues without addressing the real problem. Most of theses limitations were addressed by the original structure of the Constitution, which was distorted by the Seventeenth Amendment. For example, the original Constitution would have allowed states to protect their own sovereignty because the Senate, which ratified treaties and appointments, including judicial appointments, belonged to the states. Limitations of power must be dealt with structurally. Power isn't limited by merely writing the words "only good laws can be passed". The written word doesn't protect anything, and can actually be (mis)interpreted by a court to mean anything. The best protections are structural.

5. Unlimited money in politics: Constitutions are really good at establishing a framework for making decisions but not so good at actually making those decisions. The Constitution's protection of speech and property did not stop the government from limiting those freedoms before, and, without better structural safeguards, merely saying that the government is limited will not make it so. Many of the principles Barnett is expounding are good, but his proposals don't address the real problems.

6. The power of the states to limit federal power: unless I'm missing something, this is actually really stupid. Since three-fourths of the states can amend the Constitution anyways, this doesn't seem to do anything.

7. Term limits: The politicians aren't the problem. This country needs better voters. Until people start voting better, there can be no solution, political or otherwise.

8. Balanced budget: unless you're reading closely, you'll miss the line-item veto Barnett grants the Executive. The Executive branch is way too powerful already, and granting a line-item veto is a really bad idea. I'm actually in favor of removing the Presidential veto altogether. The veto was Hamilton's idea, with disastrous results.

9. The expansion of the judiciary: This is a no-good, really-bad, horrible idea. The people's rights are protected by the legislature,not the judiciary. When the people believe the judiciary protects their rights, they stop caring about them and start voting themselves largess from the public treasury instead of voting to protect their rights. The judiciary cannot protect individual rights, but it can sure pretend to do so. Don't buy it.

10. No judicial activism: since most of these amendments put the judiciary in charge of interpreting them, it's a bit like putting the fox in charge of protecting the chicken coop. Who watches the watchmen?

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