Constitutional Amendments are all the rage nowadays. Prof. Reynolds leads us to proposals for a balanced budget amendment and the so-called “repeal amendment”.

Anderson actually styles his proposal “Limited Government” rather than simply a requirement for a balanced budget, and presents a proposed text. It is laughable. We already have the Department of Defense, which maintains an Army far beyond the Constitutional two-year limit by fig-leafing a two-year authorization cycle. Under Anderson’s proposal, the Congress need only declare war against, say, Botswana, renewing it as necessary, and the proposed Amendment has essentially no force. Leaving loopholes on purpose defeats the effort from the get-go.

The repeal amendment proposal is nebulous at this stage, in that there haven’t been any proposals that show exactly what such an amendment would say. It’s actually the better of the two, because it can be stated without the exceptions and weasel-words a balanced-budget requirement has to have. Even so, it wouldn’t do much. A requirement for two-thirds of the States to agree on repeal might as well be all of them — which is as the Founders intended. More importantly, what’s to be done in the case of big, complex bills like Obamacare? Do the States have to repeal each provision individually? If not, what’s to prevent the Government arguing that provision so-and-so remains in force because it wasn’t mentioned? And what will the States do if the Federal Government simply shrugs and continues to enforce the law anyway?

Both proposals fail because they attempt to place a proscription or restriction on top of the existing edifice of Law and Constitution. That won’t work, because there are already too many end-arounds to Constitutional requirements in place. To actually do any good, any Amendment has to go to the heart of the problem, which is the interpretations of Constitutional text that give Congress and the Government powers the Founders didn’t intend. This would require, at minimum:

1) A declaration that the Preamble does not give the Congress any powers not stated in the body of the document;

2) An end to delegation of powers, the procedure whereby the Congress makes some vague overarching Law and entrusts its interpretation to writers of “enabling regulation”;

3) Repeal or severe modification of the Interstate Commerce clause, which all by itself has done most of the really intractable damage;

4) Reiteration, in forceful and unequivocal terms, that Sovereignty rests in the People, and no person gains any power of Sovereignty by office and position.

Proposed modifications or Amendments that don’t address those factors are a waste of time and effort, and make the system more complex without gaining any advantage.

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