Repealer Amendment and alternatives

[Humbach, Prof. John A.]

The energy of the Tea Party Movement comes from people who know something is very wrong, but they can't quite put their finger on what.

Broadly speaking, the common denominator is concern about what's happening the liberty in this country.

Liberty and equality are the two polestars of the American way. We have created many laws and systems to protect equality, but liberty has been left on its own, to fend for itself in the political fray.

Basically, however, both liberty and equality are subject to the same kind of majoritarian vulnerability: Both tend to be disregarded by highly-motivated majorities whenever the main negative impacts are felt mostly by others.

For the sake of liberty, we need to establish a strong liberty-protective mechanism comparable in purpose to the systems that we have to protect equality. The repealer amendment sounds, however, like a clumsy and potentially dangerous solution.

A better approach would be to adopt a standard that laws must meet before restrictions on liberty can become effective (for example, "strict scrutiny" in place of the rational basis "test"). A key component of implementation would be a routine requirement of Liberty Impact Statements or the like and a special review body to assure that the liberty-protective standard is met.

takinglibertyseriously.net


John A. Humbach
Professor of Law
Pace University School of Law
78 North Broadway
White Plains, New York 10603
914-422-4239

Personal website: humbach.net
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