TCS Daily


A New Bill of Rights

By Pejman Yousefzadeh - December 15, 2005 12:00 AM

University of Chicago law professor Cass Sunstein is famous for his work in trying to popularize Franklin Delano Roosevelt's Second Bill of Rights. While libertarians and conservatives may not agree with Sunstein's/FDR's proposals, we would do well not to ignore them or the manner in which they are advocated -- as a quasi-Constitutional entitlement for the American people. If we do, then the libertarian-conservative movement runs the risk of backsliding in the effectiveness of its advocacy.

So I hope that my fellow libertarian-conservatives -- as well as those who identify themselves strictly as libertarians or strictly as conservatives -- chime in with their discussions of what policy proposals an ideal Second Bill of Rights would contain. Some have already done so; economist and Nobel laureate James Buchanan has argued for a nondiscrimination amendment that would broadly disperse benefits instead of conferring them onto a specific group of individuals. Whatever specific critiques one may have of Buchanan's contribution, his proposal does serve to concentrate minds on the creation of new and innovative policy proposals.

In that spirit, I hope to see libertarian-conservatives contributing agenda items in order to create a cogent and compelling political platform. And wanting to put my money where my mouth is, some of the agenda items I would like to see get attention and interest are as follows

  • An individualized right to self-defense. A Second Bill of Rights from the libertarian-conservative perspective would embrace the decision of the Justice Department in 2002 to recognize that the Second Amendment's grant of the right to bear arms is individual rather than collective. This would be in line with the Fifth Circuit Court of Appeals' decision in United States v. Emerson stating that the Second Amendment "protects the rights of individuals, including those not then actually a member of any militia or engaged in active military service or training, to privately possess and bear their own firearms." Prior to its revision, it had been longstanding Justice Department policy to rely on the United States Supreme Court's ruling in United States v. Miller in contending that a grant of the right to bear arms in the Second Amendment was collective. But Miller only focused on whether a sawed-off shotgun could be kept under the Second Amendment, and said nothing at all about whether the right to bear arms was individualized or collective.

Having the capability to protect ourselves, our loved ones and our property from unlawful invasion or attack by another is the very essence of freedom. And sometimes -- not surprisingly -- it requires the responsible use of lethal force to protect ourselves, our loved ones and our property. Quite shockingly, that idea is under increasing attack. As such, it becomes ever more important to defend and propagate the policy of an individualized right to self-defense. As much as many believe such an individual right already exists, the basis for that right could be made stronger and clearer still. Through a Second Bill of Rights, we can do just that.

  • A right to limits on the Commerce Clause. Article I, Section 8 of the Constitution allows Congress "To regulate commerce with foreign nations, and among the several states, and with the Indian tribes." Congress has taken this grant of power under the Commerce Clause and run roughshod with it. While the Supreme Court has sought to restrain Congress's power thought its rulings in United States v. Lopez and United States v. Morrison, restraint of Congressional power suffered a serious setback with the Court's ruling in Gonzales v. Raich. A Second Bill of Rights from the libertarian-conservative perspective would recognize the massive overreach that has taken place in the realm of Commerce Clause regulation and limit it with strict and specific guidelines regarding what constitutes interstate commerce. (Here's a hint: Contrary to the Court's ruling in Raich, growing one's own marijuana in one's own backyard for the purposes of one's own consumption in order to alleviate the terrible pain and suffering that results from a host of diseases does not qualify as engaging in interstate commerce.)

  • The right to preservation of one's property. The Supreme Court's decision in Kelo v. City of New London opened a lot of eyes to the threat of eminent domain abuse in the United States. Despite the obviously bipartisan nature of this threat -- eminent domain abuse can wreak havoc on the lives of both Republicans and Democrats, after all -- the backlash against the Court's ruling in Kelo has been surprisingly one-sided. While partisan Republicans may think that it is nice to have Democrats on the unpopular side of the debate over eminent domain -- it's easier to win elections if eminent domain abuse becomes a hot topic and if the Democrats don't suddenly find religion on the issue and come out more strongly against abuse -- it will be easier to continue abusing eminent domain powers if there is no bipartisan consensus dedicated to fighting such abuse. Elevating the issue of property preservation to a higher and more prominent level by stating that it deserves its own place in the pantheon of a Second Bill of Rights will help focus attention -- and outrage -- on eminent domain abuse. That outrage will help convince politicians on both sides of the ideological divide that they do not want to be on the wrong side of the eminent domain fight, thus making it easier to correct the grievous wrongs that currently attend the exercise of eminent domain powers. Perhaps a form of Friedrich Hayek's proposal -- quoted in this post and stating that "Congress shall make no law authorizing government to take any discriminatory measures of coercion" -- could serve to limit eminent domain abuse, though haggling over the precise language of such a limiting provision may still be necessary.

Obviously, this is not meant to be an exhaustive list. I know that there are other issues that may deserve their place in a libertarian-conservative Second Bill of Rights and I look forward to seeing the debate on this issue grow. The important thing, however, is to identify a cogent list of important policy agenda items that libertarian-conservatives want to see form the foundations of modern political debate. Presenting these agenda items in the form of a Second Bill of Rights underlines the urgency of these agenda items and helps push them to the forefront of the policy debate. And that can mean only good things for those interested in promulgating a policy regime that is dedicated to the growth and expansion of individual liberty.

The author is a lawyer and TCS contributing writer.

(Editor's Note: Consider also an amendment proposed by Charles Murray in What it Means to be a Libertarian: A Personal Interpretation. Murray advocates a "principle of subsidiarity" whereby government may provide genuine public goods, but only at the most local feasible level.)

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4 Comments

Too bad no one reads the old constitution much less believes it
Our rights are guaranteed under the constitution which acknowledges that there are many unenumberated rights such as the rights to property and self defense which are "the rights of Englishmen" nd pre-date the Constitution. Further the Constitution describes the structure and powers of the government not the restrictions on the rights of the people. Its too bad that those who wished a strong Federal government have so completely destroyed the substance of the Constitution. But they have been doing this since before the Civil War.

Two Suggestions for a New Bill of Rights
1) Sunset…All future and current law/regulation must contain a sunset clause. It is the right and obligation of citizens and their elected representatives to continually review ALL law and regulation. Only those items that can withstand the rigors of persistent review should be allowed to stand.
2) National Referendum Process…a process to enable citizens to formulate and submit legislation…as Congress and the President do today. A Presidential veto of Referendum legislation could be overridden by Congress (as today) or by an override by the electorate. Representative ONLY government is a legacy institution of pre-broadband times. Communication technologies now enable citizens to directly participate in Government, and the Constitution should therefore reflect the new environment.

New and revised amendments
If two terms are good for the President, they are good for Congress.
Income tax must be repealed as well as direct election of Senators.
Decrease the number of people represented by a Congressman to 50,000 and districts must be drawn with NO regard to party, race, religion or gender or...

Handheld Destruction.
We take it for a granted that firearms are Constitutionally protected, but there is a logical constraint which technology will soon bring to the forefront -- destructive capability. Imagine a device the size of a shotgun but as deadly as an RPG and you can see where we are headed. We will need to define the limits of Constitutionally protected firearms.

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