US Constitution: Amendment Proposal | Eastern NC Now

    In 1982, in the case Southcenter Joint Venture v. National Democratic Policy Committee, Justice Utter wrote: "Federalism allows the states to operate as laboratories for more workable solutions to legal and constitutional problems." In that case, the Washington Supreme Court held that the Washington Constitution's protection of free speech does not extend to privately owned shopping malls, thus not adopting the Supreme Court's jurisprudence as relating the Free Speech from the federal perspective. Justice Utter criticizes the majority for borrowing heavily from federal precedents, contending that the Washington courts need not follow the Supreme Court's lead.

    In 1995, in United States v. Lopez, the Supreme Court struck down a federal law that criminalized the possession of a gun within 1000 feet of a school. At the end of his concurrence, Justice Anthony Kennedy professed respect for areas of traditional state concern and the role of the states as "laboratories of democracy":


    In another case before the Supreme Court that same year, U.S. Term Limits, Inc. v. Thorton, Justice Kennedy described federalism as the Framers' attempt to "split the atom of sovereignty." The case involved the (constitutional) qualifications for congressional office and the time, place, and manner of elections.

    There are some state officials who urge their state legislatures to acknowledge their sovereign status and to look more to their own constitutions rather than to US Constitution. For example, Justice Bablitch of the Wisconsin Supreme Court wrote in 1991: "The Wisconsin Constitution is not and has never been intended to be a potted plant. It can serve, if this court chooses to give it life, as a bedrock of fundamental protections for all Wisconsin citizens.... Even the U.S. Supreme Court has recognized, if not encouraged, the use of state constitutions for just such a purpose. It is consistent with our deeply held notions of federalism, our notions that states should be encouraged to be the laboratories of the nation.. .. We may, in many if not most cases, reject an alternative interpretation [ie, construe the state constitution differently from the federal]. But we should at least look."

    To the Supreme Court justice, the historical record is of little importance or concern. To be sure, the historical record hardly, if ever, mattered in their deliberations. Rarely are the original debates and writings of the ratification conventions cited. They have only been cited 122 times total in the over 30,000 cases they've ruled upon in the 225 years the high court has been deciding cases. They were only cited 30 times in the first 100 years of the Court's existence - in the formative years. Sadly, they haven't been consulted as the authority on the meaning and intent of the Constitution as they clearly are. In fact, when the Supreme Court goes so far to side with Alexander Hamilton, an outlier at the Constitutional Convention (who wanted a monarchy), an outright enemy of the Constitution (wanted a consolidated government of unlimited powers), an ideological enemy of the very men who wrote the Constitution (went up against them during George Washington's term with respect to the taxing power and the elastic clauses), and contradicted in words and actions the very assurances he wrote in the Federalist Papers, knowing that the Union would be predicted on those assurances, as opposed to James Madison, Thomas Jefferson, other Founders, and the leaders in the state conventions, there can be no other explanation than that the Court will do whatever it takes to seek the ends it desires. If the original Convention (Philadelphia, 1787) and ratification debates were cited, they would have "served to refute every conflicting claim regarding the elastic clauses," as Dave Brenner wrote, and would have served to refuse every illegitimate power grab they sanctioned.

    With almost every decision, and certainly with decisions handed down during the Obama administration, the Supreme Court's mantra has been: "WHERE THERE IS A WILL, THERE IS A WAY." It has shown that it will go through incredible lengths and legal acrobatics to save a federal law. It will distort the Constitution in ways the American people - including the intelligent ones - would never imagine. Yet it will never do the same for the states. While enlarging every possible delegation of power for the government, it has never once enlarged the states' domain under the 10th amendment. While reading every clause and every delegation in the broadest sense possible for the government, it has never once done so for the states. And therefore, the delegate balance of power has shifted further and further towards Washington DC - a body of lawmakers and politicians who sit far away from, and secluded from, the communities where citizens live.

    The shift is so striking and alarming that citizens are urging their state legislatures to assert state sovereignty and state representatives are submitting such bills and resolutions. These measures assert state sovereignty under the 10th amendment, re-assert their position that the government is one of delegated powers only, and emphasize that powers not delegated are reserved to the state. Some of the measures go farther and announce that if the federal government continues to usurp powers, those efforts will be met with nullification and interposition. Some states have already enacted various nullification bills. Indeed, nullification has never been such a popular topic. By mid-2009, ten states had already introduced bills and resolutions declaring and reaffirming their sovereignty, and another 14-15 states were considering it. New Hampshire's resolution (HCR 6) included a rather interesting and long dissertation and culminated in the statement "That any Act by the Congress of the United States, Executive Order of the President of the United States of America or Judicial Order by the Judicatories of the United States of America which assumes a power not delegated to the government of United States of America by the Constitution for the United States and which serves to diminish the liberty of the any of the several States or their citizens shall constitute a nullification of the Constitution for the United States of America by the government of the United States of America. (The resolution was not passed by the state house, as it was deemed to be not judicious to do so). Montana's bill was very similar and it almost passed.

    The shift is also so striking and so alarming that Americans are finally beginning to imagine how the colonists felt under British rule and why they would urge for separation from the mother country. In some states, talk of secession is a regular part of talk radio (Vermont, for example), and has been for the past several years. In 2012, after a New Orleans resident petitioned the White House to allow Louisiana to secede from the United States, 69 separate petitions, spanning all 50 states, were filed with the White House (the "We the People" online petition system). The site was launched on November 7, 2011, the day after Obama was elected for his second term. President Obama had promised to respond to each petition that collected at least 25,000. As of the deadline for the petitions, 47 states easily reached the threshold and some collected significantly more. Texas, for example, collected over 100,000 signatures. Most petitions made an excellent case for secession and separation from the federal government. States like New York explained that it would be far better off, economically especially, if it broke legal ties.

    President Obama indeed responded. Essentially the answer was NO.... A state has no right to secede. It is stuck with the federal government, whether it likes it or not. This is the response the White House issued on January 11, 2013:


    Essentially, the site, the initiative by the government was a ruse; a mere "feel-good" initiative. It gave the people the illusion that they flex their muscles and their voice and have their frustrations heard and internalized. As Commodus' sister Lucilla told her conniving brother in the movie GLADIATOR: "Give the people their illusions." As we watched the freight train that is the Obama administration forge full speed ahead with his plans, we sadly note that the voices of frustration never gave our president a moment's pause.

    The people used to believe in our system of checks and balances - especially the courts - to reign in the violent swings in government from side to side (extreme left and extreme right) and restore a tolerable balance in government. The people used to believe they had a voice in their government through the ballot box. But being constrained by an aggressive two-party system where neither party offers voters any hope of reigning in the tentacles of government or divesting it of the objects of its spending. What fringe groups fail to achieve at the ballot box, they can achieve through the activism of progressive courts. Judges no longer uphold or strike down legislation, based on their legitimacy; for quite some time now, they've also been in the business of legislating from the bench. For the most part, federal courts have become the enemy of the people. Representatives run for congressional office, and even for president, on a platform of promises, pretending that their allegiance is with their people. And then when they take their oath and assume their office, their allegiance changes. They clearly become agents for the federal government, putting its goals above those of their constituency. Political leaders move along ideological line, even within the same party, making sure that grassroots voices and other voices of frustration can never translate into political weight. Mark Levin commented once that political leaders act like Josef Stalin, cleaning out all opposition in the Kremlin. Power corrupts. There is a reason that Americans have never viewed the federal government with more distrust. Since the passage of the Affordable Care Act, only about 22% of Americans feel they can trust their government. That percentage is less for Congress alone. Less than a quarter of Americans believe that their representatives take their concerns to heart. Less than that believe they can change the course their government is on. [See Pew Research].

    When you have a candidate who runs not on economic promises but on a promise "to protect your phone" (that is, to protect your right not to have the government collect your messages), then you know that all is certainly not well in the United States. When people are fighting an ideological war with their government leaders over its right to censor your speech, to tell you that you can't display a flag, to force you to violate your sacred rights of conscience, to control your healthcare decisions, to force you to purchase its insurance policies, to put you on a Homeland Security Department watch list simply because you adhere to traditional notions of government and society, to outfit the IRS with 16,000 new goons to investigate you to enforce Obamacare alone, to question your right to own and possess a gun for your safety, and to force you to live in a one-size-fits-all, borderless society that defies laws of science and human nature, then you know your government has become hostile to the reasons it was created in the first place.

    Frustration with the federal monopoly is growing. Limits need to be restored and reliable Checks and balances need to be put into place. Otherwise, our sunset years will be spent reminiscing about what it was once like to live in the greatest, freest country on Earth.

    Right now, we have to ask: Who watches the watchers? The Supreme Court is untouchable. Its decisions are final; unreviewable. They stand as precedent (stare decisis) for as long as the justices themselves, and themselves alone, decide. The Court's nine justices decide the fate of both federal and state law, but of course, as it is a branch of the federal government, sitting in Washington DC, immersed in its politics and in closer contact with DC officials than state players, it is impossible to see how it can be an impartial tribunal. The federal government will never divest itself of its powers, even though most of them are misappropriated, stolen from the States and the People.

    As explained earlier, the three branches of government have worked to support one another rather than check one another. The US Constitution was written in plain and simple language so that every American could understand it and understand the boundaries of government on his or her life. People know when their government - this government - has transgressed limits and has overstepped its authority. When ordinary people can figure it out and then watch as the branches do what they do to allow the conduct to go forward and affect their lives, they have no confidence in their government structure. They don't believe there are reliable procedures in place to arrest the growing evil and tyranny that we all understand government has displayed. Liberty, which is defined as the extent to which people can exercise their freedoms, is secure when there are such procedures in place and government can be contained. The transformation of government from that of limited powers to one of vast concentrated powers by its decisions has undermined the liberty interests of the People. The most important and powerful check on the abuse of government, as discussed above, is the separation of government powers among two sovereigns; dual sovereignty. The 10th Amendment reminds us of the balance of power: "The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people." By pitting the two sovereigns against one another, the balance is maintained. Each one jealously guards and protects its sphere of power. The only problem is that one sovereign has a monopoly over the determination of its sphere. The federal government has made itself the exclusive and final judge of the extent of the powers delegated to itself. And as such, its need for power and its discretion - and not the Constitution - have been guiding those decisions. The other sovereign, the States, have no chair at the table. And the only way our system can work --- that is, work to protect the rights of the people rather than promote its own interests and longevity - is if the states get that chair at the table.

    "If it be conceded that the sovereign powers delegated are divided between the General and State Governments, it would seem impossible to deny to the States the right of deciding on the infractions of their powers, and the proper remedy to be applied for their correction. The right of judging, in such cases, is an essential attribute of sovereignty, of which the States cannot be divested without losing their sovereignty itself.... The existence of the right of judging of their powers, so clearly established from the sovereignty of States, as clearly implies a veto or control, within its limits, on the action of the General Government, on contested points of authority . . . . to arrest the encroachment." [John C. Calhoun, South Carolina Exposition and Protest, 1828]

    In light of this mandate, and in light of the fact that it has been the Supreme Court, as the self-appointed final tribunal to decide on constitutional matters which has done the most harm to the precarious balance built into our government structure, the following amendment should be proposed and passed in order to effect meaningful change to the federal judiciary and to our government structure in general. In short, the amendment proposes to alter the manner in which justices are appointed to the Supreme Court. With the proposal, justices will no longer be appointed by the President but instead will be appointed by each state. Rather than 9 justices, the membership of the Court will increase to 50, thereby giving the tribunal more credibility. The common - or federal - government will finally have a representation of the states in, to ensure fairness and equal representation of sovereign interests.

    It is a moral imperative that we should seek to restore the proper balance.

    How fitting, and ironic it should be to end this proposal for a constitutional amendment with a line from Chief Justice Roberts in his infamous healthcare decision (NFIB v. Sibelius, 2012): "The States are separate and independent sovereigns. Sometimes they have to act like it."




    References:

    James Madison, Report on the Virginia Resolutions, Jan. 1800; Elliot 4:546--50, 579.

    House of Delegates, Session of 1799--1800. (aka, Madison's Report of 1800). Referenced at: http://press-pubs.uchicago.edu/founders/documents/v1ch8s42.html

    Allen Mendenhall, "Is the Fourteenth Amendment Good," Mises Daily, January 2, 2015. Referenced at: https://mises.org/library/fourteenth-amendment-good

    P.A. Madison, "Historical Analysis of the Meaning of the 14th Amendment's First Section," Federalist Blog, last updated August 2, 2010. Referenced at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

    Frank Turk, "Why the 14th Amendment Can't Possibly Require Same-Sex Marriage," Townhall, March 17, 2015. Referenced at: http://townhall.com/columnists/frankturek/2015/03/17/why-the-14th-amendment-cant-possibly-require-samesex-marriage-n1971423/page/full

    Prudential Ins. Co. of America v. Cheek, 259 U.S. 530 (1922)

    Barron v. Baltimore, 32 U.S. 243 (1833)

    Marbury v. Madison, 5 U.S. 137 (1803)

    Vanhorne's Lessee v. Dorance, 2 U.S. 304, 308 (1795). Referenced at: https://supreme.justia.com/cases/federal/us/2/304/case.html

    The Slaughter-House Cases, 83 U.S. 36 (1873) - The first US Supreme Court interpretation of the 14th amendment

    New State Ice Co. v. Liebmann, 285 U.S. 262, 311 (1932)

    Baldwin v. Missouri, 281 U.S. 586, 595 (1930)

    Southcenter Joint Venture v. National Democratic Policy Comm., 780 P.2d 1282 (Wash.

    1989).

    United States v. Lopez, 514 U.S. 549 (1995)

    State v. Seibel, 471 N.W.2d 226 (Wis. 1991) (Bablitch, J., dissenting)

    US Term Limits, Inc. v. Thornton, 514 US 779 (1995)

    Calder v. Bull, 3 U.S. 386 (1798)

    Cooper v. Aaron, 358 U.S. 1 (1958)

    Chicago v. Morales, 527 U.S. 41 (1999)

    U.S. v. Carlton, 512 U.S. 26 (1994)

    Moore v. East Cleveland, 431 U.S. 494 (1977)

    Roe v. Wade, 410 U.S. 113 (1973) [A woman has the fundamental right to have an abortion]

    Bowers v. Hardwick, 478 U.S. 186 (1986) [A gay man has no fundamental right to engage in sodomy and states are allowed to enact laws to prohibit the conduct. The Court will protect rights not easily identifiable in the Constitution only when those rights are "implicit in the concept of ordered liberty"] Note: This case was overturned in Lawrence v. Texas, 2003, in which the Court said it had taken too narrow a view of substantive due process and liberty interests in the earlier case and now (that the strong voice in the Bowers case, Justice White, was no longer on the Court), the Court agreed that intimate consensual sexual conduct is a liberty interest protected by the substantive due process clause of the 14th Amendment].

    Obergefell v. Hodges, June 26, 2015. (Gay Marriage decision of 2015). Referenced at: http://www.supremecourt.gov/opinions/14pdf/14-556_3204.pdf

    Dave Brenner, Compact of the Republic, Life and Liberty Publishing, Minneapolis, MN (2014).

    The Kentucky and Virginia Resolutions, Bill of Rights Institute. Referenced at: http://billofrightsinstitute.org/founding-documents/primary-source-documents/virginia-and-kentucky-resolutions/

    Edwin S. Corwin, "A Basic Doctrine of American Law," Michigan Law Review, Feb. 1914; pp. 247-250. Referenced at: http://www.jstor.org/stable/1276027?seq=1#page_scan_tab_contents. [Addresses the case Calder v. Bull].

    Jefferson Davis [The Abbebille Review, June 2014. http://www.abbevilleinstitute.org/review/the-doctrine-of-states-rights/

    "Quotes from the Founding Fathers," RenewAmerica, March 13, 2009. Referenced at: http://www.renewamerica.com/article/090313

    James A. Gardner, "The "States-as-Laboratories" Metaphor in State Constitutional Law," Valparaiso University Law Review, Vol. 30, No. 2. Referenced at: http://scholar.valpo.edu/cgi/viewcontent.cgi?article=1888&context=vulr

    James G. Wilson, "The Supreme Court's Use of the Federalist Papers," Cleveland State University, 1985. Referenced at: http://engagedscholarship.csuohio.edu/cgi/viewcontent.cgi?article=1265&context=fac_articles

    The White House Online Petition System, "Our States Remain United. January 11, 2013. Referenced at: https://petitions.whitehouse.gov/response/our-states-remain-united

    New Hampshire's State Sovereignty Resolution (HCR 6 - "A Resolution Affirming States' Rights Based on Jeffersonian Principles") - http://www.gencourt.state.nh.us/legislation/2009/HCR0006.html

    John C. Calhoun, South Carolina Exposition and Protest (1828). Referenced at: http://www2.bakersfieldcollege.edu/kfreeland/H17a/activities/Ch11docs.pdf

    Texas Governor Greg Abbott, press release (June 26, 2015). Referenced at: http://gov.texas.gov/news/press-release/21131

    Thomas Paine, Rights of Man (1791-1792). Referenced at: http://www.let.rug.nl/usa/documents/1786-1800/thomas-paine-the-rights-of-man/

    The Federalist Papers. Referenced at: http://avalon.law.yale.edu/subject_menus/fed.asp

    * Federal mandates: Federal mandates include requirements imposed on state, local, or tribal governments or on entities in the private sector that are not conditions of aid or tied to participation in voluntary federal programs.]

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