Proposed Generic Constitutional Amendments

Article 5.

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.

Here are generic amendments (written a few years ago) which would restore limited government and federalism and rein in the imperial judiciary. Though some of the amendments are my own words, the real beauty of many is that they use the very words of Madison, Hamilton, and John Marshall. Where a dagger † is inserted,  I mean it to indicate that the amendment needs to be improved. In the next few days, I shall provide an explanation of the improvements or changes are needed to make the particular amendment better or clearer than my original language would provide.

AMENDMENT 28. The tax power. “[T]he [Art. 1, §8] power of taxation . . . to . . . provide for the common defense and general welfare . . . [does not] amount[ ] to an unlimited commission to exercise every power alleged to be necessary for the common defense or general welfare.” [Madison, № 41.] “[T]he power of congress . . . shall extend to enumerated cases. The [Art. 1, §8] enumeration of particulars . . . excludes all pretension to a general legislative authority, because an affirmative grant of special powers would be absurd, as well as useless, if a general authority was intended.” [Hamilton, № 83]

AMENDMENT 29. The commerce power. The term “commerce” in Art. 1, §8, CL. 3 means “trade.” [Madison, № 40; Hamilton, № 11] The purpose of the interstate commerce component of the clause is to promote “[a]n unrestrained intercourse between the states” [Hamilton, № 11] [and] “the relief of the states which import and export through other states from the improper contributions levied upon them by the latter.” [Madison, № 43]

AMENDMENT 30. Due process. In this Constitution, ‘due process of law’ refers only to the process and proceedings of courts . . . [and] never . . . to an act of the legislature.” [Hamilton] Due process means reasonable notice and a reasonable opportunity to be heard in judicial proceedings.[1]

AMENDMENT 31. Federalism. The rights and protections of the first ten amendments “are security against the . . . general government, not against . . . the [state] governments.” [John Marshall, Barron v. Baltimore].[2]

AMENDMENT 32. Fourteenth Amendment. “Liberty” in the due process clause means “freedom from confinement.”[3] The “privileges or immunities” clause shall be construed so as to prevent states from enacting or enforcing legislation or constitutional provisions that discriminate against a state’s own citizens or U.S. citizens in migration.† The equal protection clause shall be construed so as to prevent states from discriminating against any person in the administration or enforcement of laws.††

AMENDMENT 33. General principle of constitutional interpretation. “The powers delegated by the . . . Constitution to the federal government are few and defined. Those which are to remain in the state governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the state.” [Madison, № 45]

AMENDMENT 34. First Amendment. “The freedom of speech” in the First Amendment does not include obscenity, pornography, defamation, or criminal misconduct. “An establishment of religion” is the government’s sponsorship or preference for one sect of religion over another.

AMENDMENT 35. Takings. “Public use” in the Fifth Amendment includes only uses of property which are within the scope of the enumerated powers.[4] “Property” includes taxes.†††

AMENDMENT 36. Equality of constitutional provisions. In every constitutional case, each and every provision of the Constitution and its amendments, shall have equal weight, and no provision shall be preferred over others having a bearing on the subject matter of the case. The judiciary shall give one level of scrutiny to every alleged violation of the Constitution: close scrutiny. There is no presumption of constitutionality or deference to be given any legislation under review. If the government activity at issue appears to fall outside the enumerated powers, there is a presumption of unconstitutionality, and the government must show that the activity is both necessary and proper to effectuate an enumerated power.

AMENDMENT 37. Judicial opinions. Every opinion in every federal case shall answer every claim, defense, or issue raised in the case. Every opinion in every federal constitutional case shall recite the text of the constitutional provisions at issue, and, if the text is vague or ambiguous, recite whatever remarks about meaning were made in the Federalist, and apply those remarks to discern meaning.

AMENDMENT 38. The Weight of the Federalist. In constitutional and other federal cases, where the text may not of itself resolve the question, the judiciary shall give the Federalist the greatest weight of any extra-textual materials, and if the Federalist does not resolve the question, then and only then give weight to other materials, such as prior cases (except those overruled by these amendments).[5]

AMENDMENT 39. Dissolution of the existing federal judiciary. All federal judges, including justices of the United States Supreme Court, are relieved of duty one year following ratification of this amendment, and may never again serve as federal judges. The government shall pay the relieved judges their full salary during their lives.

AMENDMENT 40. Appointment of a new judiciary. The president shall at once begin nominating new federal judges who may not be seated unless they have signed the oath to uphold the constitution of the United States, including these new amendments, which are to be written in bold in the oath. A lower federal judge’s observance of the oath will be secured by the judge’s salary which shall be held in arrears and distributed only once a year upon certification by at least 2/3 of the justices of the supreme court that the judge has observed the oath. A supreme court justice’s salary shall also be withheld in the same manner and released only on certification of a majority of the legislatures of the states. No federal judge will be immune from civil liability for materially breaching his oath of office.

[1] Twining v. New Jersey, 211 U.S. 78 (1908) ⊗ @ .

[2] 32 U.S. 243 (1833) @ .

[3] Paraphrasing Blackstone’s definition: “power of locomotion, of changing situation . . . without imprisonment or restraint of the person.”

[4] This amendment is based on the logic of the enumerated powers doctrine: the only valid takings for public uses are for the purposes of exercising enumerated powers.

[5] “The opinion of the Federalist has always been considered as of great authority. It is a completed commentary on our constitution; and is appealed to by all parties in the questions to which that instrument has given birth. Its intrinsic merit entitles it to this high rank . . . .” John Marshall in Cohens v. Virginia, 19 U.S. (6 Wheat.) 264 (1821) ⊗ @ .

Published in: on February 14, 2015 at 4:57 pm  Leave a Comment  

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