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June 8, 2005

A Proposal for a Constitutional Amendment

The implications of the Supreme Court's latest farcical decision have gotten me thinking about the Constitution again. Actually, I do that pretty constantly, sometimes at high volumes and levels of agitation, as my long-suffering but wonderful wife can attest. But specifically, I'm wondering if there's a Constitutional fix that would work; that is, a fix so plainly worded as to make impossible its abrogation by a Supreme Court steeped in its own arrogation of power to set the Constitution to mean anything the Court wants it to mean. And I think there is.

The problem whose solution I'm looking for is summed up by Justice Thomas in his dissent:

If the Federal Government can regulate growing a half-dozen cannabis plants for personal consumption
(not because it is interstate commerce, but
because it is inextricably bound up with interstate commerce),
then Congress' Article I powers -- as expanded by
the Necessary and Proper Clause -- have no meaningful
limits. Whether Congress aims at the possession of drugs,
guns, or any number of other items, it may continue to
"appropria[te] state police powers under the guise of regulating
commerce."

[snip]

If the majority is to be taken seriously, the
Federal Government may now regulate quilting bees,
clothes drives, and potluck suppers throughout the 50
States. This makes a mockery of Madison's assurance to
the people of New York that the "powers delegated" to the
Federal Government are "few and defined," while those of
the States are "numerous and indefinite."

So, how is it possible to return to a Federal system of dual sovereignty and enumerated powers, and to a meaningful Constitution? The first requirement is to realize that any amendment that would have this effect, must first pass through the current process for amending the Constitution. This means that such an amendment would fail if it did not reflect what people want from the government.

The first requirement is that any such amendment should either utterly discard Marbury v. Madison, or should codify it. If Marbury v. Madison is left unstated, then any restrictions in interpretation imposed upon the Court immediately make Marbury v. Madison untenable as precedent, and thus moot themselves. The more likely course is that such restrictions would be ignored. Therefore, the aspect of Marbury v. Madison that gives authority to the Supreme Court to be the final arbiter of the Constitution should be codified. Because this is an awesome power to wield, the power should be limited in the codification. For example:

In any Case arising pursuant to Article III, the Supreme Court and any duly-constituted inferior Courts shall have the power to invalidate any Law or other government act which is in contradiction to this Constitution and its Amendments, and to impose such remedy as appropriate to redress the Law or act. However, such remedy shall only be binding on parties to the Case, or to their heirs or assigns as provided by law. No Law or act of government may be invalidated if that Law or act adheres to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified; nor may any Law or act of government be used to impose penalties on any person, if that Law or act does not adhere to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified.

Now that we can meaningfully restrict the power of the Court, yet still reach a (relatively) final resolution on the meaning of the Constitution, at least in a legal sense, any such amendment must contain language that compels a narrow interpretation of the Constitution, so as to prevent sophistry from trumping liberty. For example:

The Court may not, in invalidating a Law or act of government, in any way abridge powers granted according to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified; nor may the Court, in upholding a Law or government act, grant additional powers not present in the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified.

The above language would reverse the concentration of sovereignty in the hands of the Federal government, as that concentration contradicts the plain meaning of the words of the Constitution (specifically, Amendments IX and X).

But there are problems with this language as it sits. The language would invalidate most laws passed in the last 75 years, as challenges came up to Social Security, the drug laws and so forth. Heck, I'd be among the first to file to overturn all campaign finance reform laws, particularly BCRA, as violating the first amendment. The desires of the people in regards to their government have changed, and this needs to be reflected in the Constitution, rather than imposed by unelected and virtually unaccountable courts. Many of the laws that would be invalidated should in fact be included in the Constitution, as they are powers the people by and large want the government to assume. There also has to be a time for transition, because it takes time to amend the Constitution under any scheme (well, any amendment scheme that purports to protect the Constitution anyway) and some of the programs and powers that would need to be codified could have disastrous side effects if simply removed without transition. Again, think of Social Security here.

Another problem is what to do about lynchings. Where a State refuses to enforce its own laws, to the detriment of its citizens (and by extension, of US citizens), how should this be handled?

The language of the amendment would have to be expanded to cover these cases, because otherwise the amendment could not muster enough support for ratification.

In order to allow the Constitution to evolve more quickly, to meet the changing desires of the people for what their government should be allowed to do and disallowed from doing, the amendment process needs to be revamped. The current process requires 2/3 of both houses of Congress to propose an amendment, or 2/3 of all State legislators to call a convention. The amendment only becomes valid when 3/4 of the State legislatures or of Conventions in 3/4 of the States have ratified the amendment. That makes the bar so high that the Constitution is rarely amended. While generally a good thing, the limits are probably set too high, and that is the primary reason, I think, why we have taken to using an unwritten Constitution and largely ignoring the written one. (The amazing thing about a common law system is that, for the most part, that actually works!)

I see three things that can be done: make the existing Congressional process easier; add a process where the people as a whole can more easily propose amendments (this allows large-population States a way to get what they want); make the existing Constitutional Convention process easier (this allows politically-similar low-population States a way to get what they want). I think all of these ideas are viable, so how about language for all three:

The Congress, whenever three fifths of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of three fifths of the several States, shall call a Convention for proposing Amendments, or, upon the presentation to Congress of referenda proposing Amendments in States whose population is three fifths of the whole population of the United States, shall propose such Amendments, which, in any Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of two thirds of the several States, or by Conventions in two thirds thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

Yes, that's pretty much a straight rewrite of Article V.

In order to ensure that the amendment process has time to work before programs and powers simply disappear, the amendment needs to include a transition period after an existing law is challenged. Note that some transition period is available simply because it would take a while for this amendment to go through the process, and at the same time there would be no requirement to even begin the process of adding a program or power by amendment until a case challenging the power or program works its way through the courts. This should do it:

Any Law or act of government, passed or undertaken prior to the ratification of this Amendment and invalidated by the Court, shall continue in force after such invalidation for one month for each year of the Law's or act's time in effect.

Note that this means that a law passed in 1935 would be in effect for 70 months (almost 6 years) after it was invalidated, assuming such an amendment were ratified and a law invalidated under it, all in this year. This would give a lot of time for an amendment process to take place. Sufficient time, in fact, to actually come up with an amendment to, say, allow Social Security. More recent laws, being less firmly established, would have less time to be amended or to have requisite powers added to the Constitution before they passed out of effect.

In order to protect people from a State's unwillingness to protect its own citizens, the amendment needs language that allows a person to bring suit against their own State for failing to uphold its laws. For example:

The Supreme Court shall have original jurisdiction in any case arising from the failure of a State to grant to any of its citizens the equal protection of the laws of that State.

Note that I have stayed away from policy in this language. This is not a wishlist for which policies should be codified (in fact, I generally don't think that policies should be codified at all). The only intent is to restore us to being a federal republic, and then let the will of the people take its course from there.

So how can this be improved? When I'm happy with it, I intend on contacting my Senators and seeing if I can't get them to introduce it (or something like it). After all, if you don't ask, the answer is no.

Here is the full text, all in one place:

Section 1.In any Case arising pursuant to Article III, the Supreme Court and any duly-constituted inferior Courts shall have the power to invalidate any Law or other government act which is in contradiction to this Constitution and its Amendments, and to impose such remedy as appropriate to redress the Law or act. However, such remedy shall only be binding on parties to the Case, or to their heirs or assigns as provided by law. No Law or act of government may be invalidated if that Law or act adheres to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified; nor may any Law or act of government be used to impose penalties on any person, if that Law or act does not adhere to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified.

Section 2.The Court may not, in invalidating a Law or act of government, in any way abridge powers granted according to the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified; nor may the Court, in upholding a Law or government act, grant additional powers not present in the plain meaning of the words of this Constitution and its Amendments at the time that they were ratified.

Section 3.The Congress, whenever three fifths of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of three fifths of the several States, shall call a Convention for proposing Amendments, or, upon the presentation to Congress of referenda proposing Amendments in States whose population is three fifths of the whole population of the United States, shall propose such Amendments, which, in any Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of two thirds of the several States, or by Conventions in two thirds thereof, as the one or the other Mode of Ratification may be proposed by the Congress.

Section 4.Any Law or act of government, passed or undertaken prior to the ratification of this Amendment and invalidated by the Court, shall continue in force after such invalidation for one month for each year of the Law's or act's time in effect.

Section 5.The Supreme Court shall have original jurisdiction in any case arising from the failure of a State to grant to any of its citizens the equal protection of the laws of that State.

Posted by jeff at June 8, 2005 2:32 PM

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Here's what's caught my eye this morning: Jeff Medcalf of Caerdroia is unhappy about our present kreitocracy and has proposed a constitutional amendment to correct the situation. As I pointed out in the comments such an amendment would have no... [Read More]

Tracked on June 9, 2005 9:18 AM

Comments

Posted by: Dave Schuler at June 9, 2005 7:51 AM

Posted by: Jeff Medcalf at June 9, 2005 9:10 AM