December 13, 2003

What is our Real Constitution?

I wonder what our real constitution is? Not our Constitution, since that is ignored roundly by all branches of government and by the public at large, but the one we actually live under. It seems to me that if we were to start with the written Constitution, add in important Supreme Court decisions (including the one where the justices decided that they alone could be the final arbiter of the Constitution's meaning), take account of the circumstances under which laws and their enforcement have deviated from the written Constitution, consider the aggregate feelings of the citizenry on what should be in the Constitution, and subtract out those parts that are no longer effectively in force, we would be close. So, how close can we get with the minimal number of changes?

My first cut requires one amendment with six parts:

a) Notwithstanding any other provision of this Constitution, or any other circumstance or position in law, the Congress may make any law on any subject whatsoever, provided that it declare said law to be in the compelling interests of the United States.
b) Notwithstanding any other provision of this Constitution or of their respective State Constitutions, or any other circumstance or position in law, the legislature of any State may make any law on any subject whatsoever, provided that it declare said law to be in the compelling interests of that State.
c) Notwithstanding any other provision of this Constitution, or any other circumstance or position in law, the President or any executive agency of the Federal Government may undertake any act, provided that the President declares said act to be requisite to the security needs of the United States.
d) Notwithstanding any other provision of this Constitution or of their respective State Constitutions, or any other circumstance or position in law, the Governor or executive agencies of any State may undertake any act, provided that the Governor declares said act to be requisite to the security needs of that State.
e) Notwithstanding any other provision of this Constitution, or any other circumstance or position in law, the Supreme Court of the United States shall have the sole authority to determine what constitutes a "compelling interest" or a "security interest", or to modify or negate any law or act of the United States or of any State.
f) Notwithstanding any other provision of this Constitution or of their respective State Constitutions, or any other circumstance or position in law, the Supreme Court of any State shall have the sole authority to determine what constitutes a "compelling interest" or a "security interest", or to modify or negate any law or act of that State.

Stephanie challenged me to write a Constitution, then, if I think our desire to actually follow ours is so far off. I probably should. Not that I'm convinced it will do any good, but at least I'd be doing something other than just complaining.

Posted by Jeff at December 13, 2003 12:09 AM | Link Cosmos
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