Will We Ever See Another Constitutional Amendment?

My column this week in Forbes elaborates on a theme I discussed last week in this blog.

I am not a big fan of prohibition, or the income tax (16th Amendment) before it, but in some sense these come from a better time.  Instead of dealing with the Constitutional problems of these initiatives by having a series of judges stare at the Constitution with their eyes crossed until the problem disappears, they actually wrote and passed a Constitutional amendment.  The took the wording of the Constitution seriously.

Consider alcohol prohibition.  Today, would we even bother modifying the Constitution?  After all, we’ve driven a forty year war on drugs — with massive spending, highest in the world imprisonment rates, militarization of our police, and frequent slashes into the heart of the Fourth Amendment — with nary a hint of the need for a Constitutional Amendment.  In fact, in Raich, the Supreme Court ruled that medical marijuana legally (under state law) grown, sold, and consumed in California could still be prohibited by the Federal government under their Constitution powers to regulated interstate commerce.  It seems almost quaint today that we sought a Constitutional change for Prohibition.


  1. chuck martel:

    The Minneapolis Star-Tribune tells us about felony business practices:

    The former owner of a White Bear Lake sports bar faces felony charges after authorities say he purchased beer kegs and other liquor in Hudson, Wis., for import and resale at his bar.

    Michael Ogren, 43, made the purchases last fall after his Stadium Bar, 3600 Hoffman Road, was added to a state list of businesses that were delinquent in paying state sales taxes, according to charges. He no longer owns the bar.

    State law prohibits distributors from supplying liquor to businesses placed on the delinquency list. In Minnesota, it also is illegal for liquor license holders to purchase alcohol from other retailers for resale.

    According to the charges filed in Ramsey County District Court, Ogren made 13 trips to Casanova's Liquor Store in Hudson between October and December, and allegedly bought 117 beer kegs, 95 bottles of liquor, 51 cases of beer and three bottles of wine.

    Agents with the state Department of Public Safety had begun placing the bar and liquor store under surveillance in November. At times, the charges state, the number of kegs being picked up was so large that the kegs had to be loaded into trucks or trailers.

    A manager at the sports bar, known for its outdoor softball fields and volleyball courts, told agents she placed orders at Ogren's direction, and that Casanova's Liquor Store had been selected at random.

    "Ogren told her it was legal to do this and she regretted that she had trusted him," the charges state. The manager also told agents that in January, when she last saw Ogren in the bar, she saw him tossing away business receipts.

    In an April phone interview, Ogren allegedly told agents that he had purchased liquor at Casanova's Liquor Store "only twice," according to the charges. But he then admitted, the agents added, to having made weekly trips between Oct. 30 and Jan. 7.

    When asked if he knew he was breaking the law, he allegedly replied: "Well, I knew I wasn't supposed to do it, let's put it that way."

  2. Ted Rado:

    Constitutional amendment? What Constitution? We haven't had one for decades. The interstate commerce clause and "compelling public interest" trump everything. The USG can fire business executives, take over whole industries, randomly save one firm and let another go broke, etc. Anyone who doesn't realize that we are headed toward an elected dictatorship has been living in a cave.

    Another point that concerns me: Ignorance of the law is not an excuse for breaking it. However, there are so many government laws and regulations that I am sure we all inadvertently break many every day. Thus, the USG could throw any of us in jail by merely finding the regs or laws we have broken. We are all at the mercy of the government.

    Example: gun laws. It used to be illegal to have a gun in a National Park. One can carry a gun in a holster freely in National Forests. If one has to cross a patch of NP or non-Forest Service land to get to the NF, one has to either hide the gun until in the NF, or carry it in the open. In both cases, one is breaking the law. If camping out, your tent is your domicile. I believe one can keep a gun in the tent. I am sure there are many states where this could get you thrown in jail. There are some 20,000 gun laws in the US. Does anyone believe I can acquire familiarity with them all? I imagine that over the years I have technically violated the law many times, even though an honest citizen trying to follow the law.

    In the business world, there are jillions of regs, forms, codes, etc. that must be followed. Despite a businessman's best efforts, I am sure many are breaking the law. I don't see how small businesses survive in this environment.

    This sort of problem is endless, and getting worse by the day. Pretty soon we will be greeting each other with a hearty Sieg Heil. What nonsense. George III is looking better all the time (just kidding).

  3. caseyboy:

    Ted, you are correct. I work in the income tax arena. The tax code is so complex today it is nearly impossible to file a fully compliant return. Although my income potential benefits from the complexity I would happily forgo it for a flat tax approach.

  4. Gordon:

    Your insights are dead-on. All those that refer to a living document Constitution frustrate me to no end. One argument they make is that the founders argued amongst themselves over the Constitution. But the framers drafted it (warts and all) then sent it on to be ratified by the various states, so it was accepted in all its elegance and imperfection by the people. Of course they knew it was imperfect, but as you rightly argue the remedy to its imperfections is the amendment process, long and arduous though it may be. so if crap like Kelo vs. New London or some of these other terrible ruling had come not in the form of SCOTUS rulings, but in the form or Constitutional amendments, I could at least follow your lead on the income tax and grudgingly accept them.

    Thanks for the excellent post, and the consistently interesting blog.

  5. John Moore:

    We need a Constitutional amendment to, among other things, destroy the "validity" of Raich - which stretched the Commerce Clause as badly as Griswold (setting the stage for Roe v Wade) stretched the 4th Amendment.