The Constitutionality Crisis


Amending the Constitution

Amending, The Right Way

Article V explains how the Constitution may be amended. It states (emphasis added):

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.

As you can see, the constitution may be amended by The People (in the form of the congress) and by The States (state legislatures or state constitutional conventions). Large majorities (called a "supermajority") are required both to bring a proposed amendment to a vote (two-thirds) and to approve a new amendment (three-fourths). It is clear that the founders did not want amending the highest law of the land to be easy or trivial.

Amending, The Wrong Way

The Constitution is routinely, and easily 'amended' by the congress. When the Congress passes an unconstitutional law, it has the very same effect as if the Congress had amended the Constitution without the consent of the states — government assumes powers not granted to it by the states in the Constitution. Passing unconstitutional laws is very easy. Once passed, repealing unconstitutional laws is very, very hard.

Forget Civics Class

If you took a high school civics class, you probably learned "How A Bill Becomes A Law" or something similar. The process, as explained, involved some legislator with a Good Idea who writes a proposed bill and sends it to committees who review and ponder it and, if it's a Really Good Idea, it gets voted out of committee. Bad Ideas are tabled or pigeon-holed. The bills that make it to the full legislature and pass, go to the president to be signed or vetoed. You were probably taught something like that.

You were not told about the back-room deals, the vote trading ("I'll vote for your stinky bill if you'll vote for mine.") and the arm twisting ("If you want to keep your committee chairmanship, you'll vote this out of committee with a favorable recommendation.")

And you likely never heard how the congress scrupulously ensures that the legislature is in fact empowered by the Constitution to legislate in the particular area which is the subject of the proposed bill. You never heard about it because it doesn't happen.

The Real World

In the real world, the President receives the 4,000-page Omnibus Tax Everything And Spend The Loot Act of 2018 and can either veto the entire package or let it become law. The Omnibus package includes all manner of pork-barrel, wasteful provisions and is likely to include many, many provisions which are simply unconstitutional.

In fact, it is often the case that no one knows the entire contents of a bill when it comes up for a vote. Each legislator has made sure that their own pet projects have been included, sometimes at the last minute and without others' knowledge, so that when the vote actually occurs, any particular legislator may have very little knowledge of the entire bill.

Since the President does not have line-item veto power (the Supreme Court declared it unconstitutional) the President has only two choices: either veto the entire package, which may result in "shutting down the government," or accepting the bad with the good. Pragmatism usually wins out.

Another way to get bad legislation enacted into law is to attach it to another bill for which there is strong support. There are often riders attached to popular legislation which have nothing at all to do with the main legislation. To stop the bad legislation requires killing or vetoing the entire bill. It doesn't happen nearly often enough.

There was a legislative attempt some years back to require that each new bill state the Constitutional provision which permitted Congress to legislate in the particular area addressed. It was defeated. Despite having sworn an oath to uphold and defend the Constitution, most legislators do not feel constrained by the limited powers granted to the congress by the Constitution. Since most anything can pass for 'constitutional' with a broad enough reading of the Commerce Clause, legislators are more concerned with how voting for particular legislation will affect their chances of reelection, than they are about the legislation's constitutionality.

"The constitution is either a superior, paramount law, unchangeable by ordinary means, or it is on a level with ordinary legislative acts, and like other acts, is alterable when the legislature shall please to alter it." — Chief Justice Marshall in Marbury v. Madison

The problem with the precedent of Judicial Review is that the the impediments to challenging an unconstitutional law are numerous and difficult to overcome while the passing of laws of questionable constitutionality is just as easy as passing the constitutional ones. Hence, the various rules and mechanisms put into effect by the federal government do indeed place the Constitution "on a level with ordinary legislative acts" changeable "by ordinary means" for all practical purposes.

Err On The Side Of Caution

There is an old adage that it is better to let 100 guilty men go free than to imprison one innocent man. New physicians have, for centuries, sworn to adhere to the Hippocratic Oath, the principal ethic of which is "First, do no harm." In fact, "First, do no harm" has been used in many, many contexts outside the field of medicine. "Do no harm" would be a good principle for legislators to adopt.

There is no question that passing and enforcing unconstitutional laws does harm to the Constitution, to the States, and to the people of the United States. I would contend that it is better to defeat 100 Constitutional laws than to pass one unconstitutional law. First, do no harm. We must make it harder for the congress to pass unconstitutional laws.

Since passing an unconstitutional law and enforcing it has the same effect as amending the Constitution, legislation of questionable constitutionality should be handled in a special way — more like proposed amendments, than as regular legislation. Such legislation should require approval by two thirds of each house of congress to bring it up for a vote, and such legislation should require a three fourths vote of each house to enact it into law. This would stem the flood of new, unconstitutional laws and would be a good first step on the road to restoring Constitutional government.

How do we go about this? Who has the power to impose such a super-majority requirement on congress?

"Beware of all politicians at all times, but beware of them most sharply when they talk of reforming and improving the constitution."

H.L. Mencken

"The general rule is that an unconstitutional statute, though having the form and name of law, is in reality no law, but is wholly void, and ineffective for any purpose; since unconstitutionality dates from the time of its enactment, and not merely from the date of the decision so branding it.

No one is bound to obey an unconstitutional law and no courts are bound to enforce it."

16 American Jurisprudence, 2nd edition, Sec. 177; late 2nd edition, Sec. 256;

"It is a testament to the difficulty of having a constitutional challenge heard that, as of the end of 2002, the Supreme Court had struck down only 158 provisions of federal statutes. Considering how voluminous are the federal laws and regulations, this is a very dismal showing on the part of the Supreme Court."

Warren Michelsen