The Constitutionality Crisis


A Proposed Amendment to the Constitution

Returning Power To The States

Federal power has been expanding constantly for over two hundred years, aided and abetted by increasingly broad interpretations of the Constitution by the Supreme Court. The founders would scarcely recognize the current behemoth as a creature of their Constitution. One method of returning power to the states is contained in the proposed Constitutional Amendment below.

I have mixed feelings about restraining the federal government by means of an amendment primarily because, as noted elsewhere, I believe that the States already have the reserved power to do so, though, demonstrably, have failed to exercise that power for more than 200 years. That being the case, here is the amendment that I propose:

Amendment to the Constitution of the United States, proposed

Section 1. When the number of states exceeding twenty-five percent of all the United States shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that enactment shall, in whole, be declared invalid and no court may thereafter enforce its provisions.

Section 2. When any state shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that state may, at its option, prohibit enforcement of that enactment within its borders.


As authors of the the Constitution and therefore creators of the Federal government of the United States of America, the states are the rightful arbiters of issues regarding questionable constitutionality. For more than 200 years, however, the federal Supreme Court, in an obvious conflict of interest, has been passing judgement on the constitutionality of federal enactments. The states, apparently, do not recognize this as a power reserved to them by the tenth amendment which has been unconstitutionally usurped by the federal government.

Much as I would like to see the states remove this power from federal control, the current Judicial Review system has been in place for more than 200 years and I can understand reluctance on the part of the States to suddenly, after more than 200 years, assert this right. A Constitutional Amendment, duly proposed and ratified, however, would have obvious legitimacy. It is for that reason that I offer this proposed amendment as an alternative to the Just Do It approach promoted elsewhere on this site.

Unconstitutional laws and regulations are, in effect, unapproved amendments to the Constitution. Laws of questionable constitutionality should therefore be subject to super-majority requirements, just like actual amendments. This is in keeping with the spirit of the Constitution.

I have chosen the figure of more than 25% because it requires three-fourths, 75%, of the states to ratify a proposed amendment before than amendment becomes part of the Constitution. If more than 25% of the states find a federal enactment to be unconstitutional, it follows that less than 75% of the states would have approved the enactment, had it been an amendment. In this way, enactments of questionable constitutionality are subjected to a super-majority requirement and, failing it, rendered invalid.

The amendment, as stated above, would provide a mechanism for invalidating existing and future unconstitutional enactments. History has shown us that unconstitutional laws and regulations will continue to be enacted. It is therefore desirable to make it harder to pass laws of questionable constitutionality. 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 is, once again, very much in keeping with the spirit of the Constitution. Additional language might be added to the above proposed amendment

Section 3. Every Bill which shall be considered by the House of Representatives or the Senate, shall, before it come to a vote, be subjected to scrutiny so as to ascertain that said Bill is not in conflict with this Constitution. Whenever one third of either House shall find the Bill to be in conflict, it shall require that three quarters of that House vote Yea before the Bill be considered passed.

"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