Uber-firearms lawyer Don Kilmer thinks Prof. Randy Barnett’s proposed Constitutional Amendment to restore Federalism would read better thusly. I agree:
Main clause:
Congress shall pass no law abridging economic liberty. All federal laws effecting economic activity shall be subject to strict scrutiny.
Sub paragraphs:
This amendment modifies the commerce clause ratifed in 1789 to mean that Congress may only pass laws that are beneficial to and actually promote a free market in goods and services among and between the states.
This amendment does not modify the power of any court of competent jurisdiction with respect to the law of contract or the common law torts of negligence, nuisance and/or trespass.
I’ve met Don. He personifies awesome.
Yes I’m an attorney. No, I am not your attorney, and nothing in this post constitutes legal advice or opinion.
Might he not get to the same point by a constitutional amendment that makes “interstate commerce” as used in the constitution pertain only to economic transactions between parties in different states, or goods or other products that in the course of buying and selling actually cross state lines?
This proposed amendment seems full of weasel words even more prone to statist interpretation and manipulation than the words “interstate commerce” and “necessary”.
The “legislative intent” here is that courts would interpret this amendment as erecting a wall of separation between the market and the state; similar to the one erected regarding church and state.
The point of not disturbing common remedies for nuisance and trespass, et al, is make sure that people can still sue for damages caused by economic activity, such as pollution, industrical accidents, etc…
Sorry, that should read: “not disturbing common law remedies…”
P.S. I wish you had a preview feature so I didn’t make public mistakes in grammar.
Don, thanks for commenting! Windy, I think the issue would be that your language might still allow room for the court to allow regulation of intrastate activity that ended up affecting goods and services that crossed state lines. “Strict scrutiny” is the key part of Don’s amendment in my view — the phrase has a precise meaning to the courts and would effectively make it easy to win court cases proving lots of statist economic statutes and regs as unconstitutional.
I’d like to see what Mr. Kilmer would write for a proposed Amendment to restore the 2nd Amendment.