A Libertarian Bill of Rights

There is an interesting editorial in the WSJ today arguing for a 'Federalism Amendment'.

Article V provides that, "on the application of the legislatures of two thirds of the several states," Congress "shall call a convention for proposing amendments." Before becoming law, any amendments produced by such a convention would then need to be ratified by three-quarters of the states.

An amendments convention is feared because its scope cannot be limited in advance. The convention convened by Congress to propose amendments to the Articles of Confederation produced instead the entirely different Constitution under which we now live. Yet it is precisely the fear of a runaway convention that states can exploit to bring Congress to heel.

The text of the proposed amendment is in the editorial. A lengthy response to its specifics was written here and on the face of it I'm inclined to agree that it needs some work. But the process is a good one, though not quite what I'd suggest.
We seem to be having something of a libertarian moment on the Right. Two obvious things are fueling that; the explosion of spending over the last eight months and the fact that the Republicans aren't running the show. I'm not the first to observe that it's easier to criticize when you're out of power. Many, many people believe that if the Republicans regain control that they will go back to being just as bad.
The problem is that there is no real path to smaller government without Republican help. There is simply no large anti-statist movement within the Left. During the Bush years there was talk about liberaltarian fusion but that also dried up and blew away pretty quickly as soon as the Democrats had the reins.
The last real hurrah for small government was during the '94 election with the Contract for America. It nationalized the congressional elections. It offered promises for governing that reasonable people could relate to. Unfortunately, it fell short of it's promises. Eventually the true believers were gone and no one but the power-seekers were left.
Enter the Amendment process. Imagine a similar promise, not to propose various laws but to propose various Amendments. Think of a nationwide conversation about the benefits of a real check on Federal power. What if each House and Senate candidate had to give their opinion on term limits or the use of commerce clause. If there is a real hunger in this country for small government, this could be the road to get there.
I'd suggest ten amendments, for historical reasons. I'd suggest things like:

• An amendment for term limiting congress. The worst abusers of power are the ones that have been there the longest.
• An end to gerrymandering. Let's have some more competitive House elections.
• A fix to the commerce clause. This is what today's editorial was about (mostly) and this could lead to a less oppressive federal congress.
• A blanket protection of speech or at least a repudiation of the 'hate speech exception'.
• Harsher penalties for congressional law-breaking. Or increased sunlight on lobbyist connections.
• Some sort of brake on spending, maybe something tied to a precentage of the GDP.
  

I'm sure there are many other (and better) suggestions than these. Each one should be argued over to get the wording correct. Perhaps a committee of skeptics could also look for loopholes and possible unintended consequences. I'd suggest that an eye be kept on the politically possible, so no proposals to reduce the Federal government by 90% or anything like that.
Maybe members of the Tea Parties and the magazine Reason can lead the discussion. As the list shapes up, congressional candidates could be pushed to promise to work to vote these amendments in. If a candidate pledges to amend the Constitution to limit their own term, that should give them some credibility towards a small government movement.
In many ways I agree that country is in the mood for change. Maybe this could be the change that brings us a better political class and more responsible government.

Gay Marriage in Iowa

Via Reason's Hit & Run, here's an article about the recent gay marriage ruling in Iowa from Jacob Sullum. He and I both favor gay marriage but aren't happy with the judicial approach to getting there. He's put this better than I have:

I like the policy outcome here, and I sympathize with the argument that the principle of equal protection should compel the government to treat gay and straight couples in an evenhanded manner. But this decision, like the California Supreme Court's similar ruling last year, seems to be another example of result-oriented jurisprudence that ultimately undermines a constitution's ability to constrain government action and protect individual liberty. If you read the court's analysis as it goes through the arguments for a gay marriage ban and (correctly, in my view) finds each of them wanting, it's hard to see how this process differs from what legislators do.

It's clear that the Iowa constitution's equal protection clause, at the time it was adopted, was not understood to prohibit a law limiting marriage to a man and a woman (assuming the issue would even have been intelligible). So the basis for saying that such a law is inconsistent with that clause today has to be an evolving understanding of what equal protection entails, especially regarding what it means to be similarly situated. But barring a constitutional amendment, judges can implement this new understanding only by reinterpreting the clause to mean something it did not mean at the time it was written. That sort of license can lead to all sorts of mischief, as the evolving understanding of the U.S. Constitution's Commerce Clause (to pick one especially pernicious example) illustrates.

That's a problem and one that I wish more gay marriage supporters would address. We shouldn't want courts looking for ways to 'get to the right place'. It can only lead to major distortions in the system. Some of them will work in your direction but over time you're going to get screwed as well.