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Constitution Day

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Tomorrow, September 17, is the anniversary of the day in 1787 when the Constitutional Convention officially submitted its proposed constitution to the people of the United States. The Constitution was a huge step forward from the state of government up to that point. Its division of power between the states and the federal government and between the branches of the federal government was a structure that would provide a government both robust enough to meet the legitimate needs yet with enough built-in checks and balances to reduce abuse of power to a lower level than any other method tried before or since.

Yet for all the rhapsodizing one hears about the "perfect Constitution," it was far from perfect.  The Constitution was the product of political compromise.  Many of its original defects have been corrected by subsequent amendments, but some remain.

The limitation of Congress to enumerated powers does not have enough teeth.  In today's WSJ, Randy Barnett and William Howell propose a "repeal amendment" to allow 2/3 of the states to repeal an Act of Congress by resolution, an idea harkening back to the Virginia and Kentucky Resolutions drafted by Madison and Jefferson in reaction to the Alien and Sedition Acts of the Adams Administration.

Another defect, and in my view the more dangerous one, is the lack of an effective check against the Supreme Court "amend[ing] the Constitution by interpretation," as Justice Black put it. The Framers correctly required a very high degree of national consensus to affirmatively change the supreme law by constitutional amendment under Article V.  It takes 2/3 of both houses of Congress and 3/4 of the states. Yet five people can amend the Constitution to mean something it never meant before, and then we need that overwhelming consensus to adopt an amendment simply to put the Constitution back the way it was.

I suggest that whenever (1) a statute and a provision of the Constitution have both been on the books for 10 years or more, (2) within the first 10 years after the enactment of the later of the two, no appellate court in a published decision has held them to be in conflict, and (3) the Supreme Court then finds a conflict or denies review of a lower court decision so holding, the executive may appeal that decision to the Senate. By majority vote, the Senate may decide that the correct interpretation of the constitutional provision does not conflict with the statute and return the case to the court for a decision consistent with that interpretation.

This procedure would have little impact on legitimate judicial review of statutes.  If a statute is indeed in conflict with a constitutional provision, the conflict will be apparent right off the bat.  It would dampen the rewriting of long-ago adopted constitutional provisions to strike down long-standing statutes with interpretations that did not occur to the people who wrote and ratified the constitutional provisions. In Graham v. Florida, the Supreme Court discovered that punishments authorized by statutes of the federal government and 37 states now violate a 219-year-old constitutional amendment that they never violated before.  We need to have someplace to appeal such decisions.

1 Comment

These are very good proposals for reform, Mr. Scheidegger. But unfortunately, they won't go anywhere.

Justice Scalia was right. The Constitution is dead.

To my mind, the United States no longer has a Constitution.

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