The Constitutionality Crisis


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:

  • There are many unconstitutional laws on the books
  • It is far too easy to pass unconstitutional laws. We must make it harder to do.
  • It is practically impossible to repeal or overturn unconstitutional laws. We must make it easier to do.
  • The Supreme Court has been a willing accomplice to the federal government's unceasing expansion of power. As a branch of the federal government itself, permitting the Supreme Court to review laws for constitutionality is letting the fox guard the hen house.
  • The power of Judicial Review is a power that was usurped by the Supreme Court; it is not a power granted to the court by the Constitution.
  • Reviewing laws for constitutionality, upholding the constitutional ones and striking down the unconstitutional ones, is a power retained by The States and the people, per the Tenth Amendment.
  • Unconstitutional laws are, in effect, unauthorized amendments to the Constitution which have not had to undergo the rigorous scrutiny and debate which would accompany proper, proposed amendments before adoption nor have they been approved by the states. Because unconstitutional laws have the very same effect as unauthorized constitutional amendments, legislation of questionable constitutionality should be given close scrutiny and review, and require super-majorities to pass, much like actual proposed amendments.
  • The Constitution and the federal government are creations of the states. It's time for the states to regain control of the Constitution and therefore, the federal government.

What's Needed

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:

  • Under the rules established by the Judiciary, only a very tiny fraction of constitutional challenges ever reach the Supreme Court.
  • The rules themselves have a strong bias in favor of the federal government — laws must be considered constitutional if, by any interpretation, they can be.
  • Who is to rule on whether the Judicial branch of the federal government has itself overstepped its Constitutionally imposed limits? Shouldn't it recuse itself from such deliberations?
  • The Supreme Court assumes that the only way to challenge laws is through the courts (thereby giving it jurisdiction).

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:

  1. We must stop the passage of new, unconstitutional laws.
  2. We must strike down unconstitutional laws that are already on the books.

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:

  • What portion or percentage of each house's legislators would have to question the constitutionality of the subject legislation in order to trigger the super-majority requirement for passage; and
  • The super-majority requirement itself. I propose a three-fourths (of the senate and house of representatives) requirement, as three fourths is the requirement for the portion of states which must approve a constitutional amendment.

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."

Joseph Sobran

"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