Proposal For A Return To Constitutional Government
A Summary of the Problem
If you have followed the links to the left which precede this page ('A Proposal'), then you have read my thoughts on the Constitutionality Crisis facing the United States of America. I have explained that:
The rationale of the Supreme Court for assuming the power of Judicial Review (See Marbury v. Madison) is that "The judicial Power shall extend to all Cases ... arising under this Constitution..." The more obvious problems with this are:
What is needed is a mechanism, outside of the court system, to review and invalidate laws which are repugnant to the Constitution. The states, as the authors of the Constitution and therefore the "boss" of the federal government, should provide this mechanism.
The Restoration of Constitutional Government
There are two broad objectives to be achieved to restore constitutional government:
Stopping the passage of new, unconstitutional laws will require some changes in the way laws are passed. There is no indication that stemming the tide of unconstitutional laws and regulations has any support at all within the government itself. The states will have to exert pressure on the federal government to make that happen.
As stated previously, legislation of questionable constitutionality 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 could be implemented within the congress by simply adopting a rule to that effect. Unfortunately, the congress is unlikely to rein itself in. A constitutional amendment may be required. Such an amendment would set forth:
Of course, if any portion of the subject legislation is challenged on constitutional grounds, the super-majority requirement will have to apply to the entire bill. This might put an end to pork-barrel riders routinely attached to popular bills.
I can already hear cries of "Anarchy!" from those who prefer an overbearing federal government. To which I can only say: Pass the necessary Constitutional amendments delegating those powers to the federal government.
It seems unlikely that two thirds of both Houses of the Congress shall ever "deem it necessary" to propose such an amendment, so it may require that two thirds of the states call for a constitutional convention to propose such an amendment. Constitutional conventions have been proposed before and, as always, therein lies great danger. It may be that "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution" is the safer choice, albeit not very likely. How do we encourage the Congress to limit its own ability to legislate? The author of this site is open to suggestions.
"Can the real Constitution be restored? Probably not. Too many Americans depend on government money under programs the Constitution doesn't authorize, and money talks with an eloquence Shakespeare could only envy. Ignorant people don't understand The Federalist Papers, but they understand government checks with their names on them."
"It is not the function of our Government to keep the citizen from falling into error; it is the function of the citizen to keep the Government from falling into error."
U.S. Supreme Court in American Communications Association v. Douds, 339 U.S. 382,442