A while back, the following slate of constitutional amendments was proposed by Texas Governor Greg Abbott:
I. Prohibit Congress from regulating activity that occurs wholly within one state.
II. Require Congress to balance its budget.
III. Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law.
IV. Prohibit administrative agencies — and the unelected bureaucrats that staff them — from preempting state law.
V. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision.
VI. Require a seven-justice super-majority for U.S. Supreme Court decisions that invalidate a democratically enacted law.
VII. Restore the balance of power between the federal and state governments by limiting the former to the powers expressly delegated to it in the Constitution.
VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.
IX. Allow a two-thirds majority of the States to override a federal law or regulation.
I think his heart was in the right place, and it’s pretty to think that these would make a difference, but would that really be the case? Before considering that question in depth, let’s do a little bit of trimming.
Amendments III and IV could be condensed into a single amendment:
III’. Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law or preempting state law.
So could amendments V and IX:
V’. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision, or a federal law or regulation.
Third, let’s forget VII, since it just says ‘Let’s amend the Constitution to require the federal government to follow the Constitution’. So we’re down to six amendments:
I. Prohibit Congress from regulating activity that occurs wholly within one state.
II. Require Congress to balance its budget.
III’. Prohibit administrative agencies — and the unelected bureaucrats that staff them — from creating federal law or preempting state law.
V’. Allow a two-thirds majority of the States to override a U.S. Supreme Court decision, or a federal law or regulation.
VI. Require a seven-justice super-majority for U.S. Supreme Court decisions that invalidate a democratically enacted law.
VIII. Give state officials the power to sue in federal court when federal officials overstep their bounds.
Now let’s look at those one by one.
Amendment I is dead on arrival. First, there is almost no activity that can be said to occur wholly within one state. Second, even if you think there is, take a look at Wickard v. Filburn — it’s too long to explain here, and if you haven’t seen it, you really ought to.
Amendment II isn’t dead on arrival, but it’s already on life support. The reason? Consider that the First Amendment prohibits Congress from abridging freedom of speech, and yet we have hundreds of laws regulating what people can say during elections. The Second Amendment prohibits Congress from infringing on the right of the people to keep and bear arms, and yet we have hundreds of laws infringing on the right. The Fourth Amendment prohibits Congress from authorizing searches absent probable cause backed up by warrants, and yet no one can get on an airplane without undergoing a search, absent probable cause, conducted by an agent of the federal government. Need I go on?
Any written amendment of the form ‘Congress shall not X’ will be incorporated into the oral Constitution in the form ‘Congress shall not X, except when the Supreme Court, choosing an appropriate level of scrutiny, and balancing the prohibition against various compelling government interests, decides that it can’.
This applies to Amendments III’, V’ (as ‘allow’ is just the flip side of ‘prohibit’), and VIII.
This leaves us with only one viable amendment, VI.
Now, there are two problems with this amendment. The first is that ‘overturning democratically enacted laws’ is one of the few things that the Supreme Court is actually good for, since many ‘democratically enacted laws’ are enacted with flagrant disregard for the Bill of Rights and the 14th Amendment.
The second is that it turns on its head the single largest opportunity to break the back of federal over-reach. Instead of requiring a super-majority in the Senate to overturn a law, we should be requiring a unanimous decision in the courts in order to uphold a law.
That is, anything but a unanimous decision in any appeals court should automatically overturn the law in question on the grounds that it is void for vagueness, sending it back to the relevant legislature to resolve the ambiguity.
To put that another way, if three or five or seven or nine highly educated jurists can’t agree on what a law means, then it’s not written clearly enough to be a law, and no ordinary citizen can be expected to be able to figure out whether he’s in compliance or not.
So we might rewrite that as
VI’. Any split decision in any federal or state appeals court invalidates the law in question, leaving it to the relevant legislature to resolve the ambiguity, or just leave it invalidated.
But of course, all of this ignores the REAL problem with trying to amend the Constitution, which is the widespread acceptance of the idea — even by people who should know better — that it is the job of the courts to ‘say what the law means’. Until this is addressed, the very idea of trying to effect real change by amending a written constitution that has been replaced by an oral constitution is futile, and even ludicrous. (Anyone who doubts this should take a quick look at the history of the 14th Amendment.)
So really, what’s needed is an amendment like
X. Opinions written by appeals courts — including the Supreme Court of the United States and the Supreme Courts of individual states — create no law, and set no legal precedents.
That is, the law says what it says, and in each new case, judges must apply the law as written, rather than subordinating that to what other judges have written. If the law needs to say something else, it’s the job of the legislature, not the judiciary, to make the required changes.
Frankly, until something this is in place — lifting the curse of ‘judicial review’ by taking away the ability of the courts to ignore or override anything they don’t like — there’s little point in trying anything else.
Ian Underwood 