One of the most stubborn areas of political debate today concerns the Supreme Court and its power to legislate or "interpret the law" as they prefer to call it. The result is that the Court is creating political issues that cannot be resolved through the political process. There is also the ongoing problem of earmarking during appropriations and the always problematic federal budgeting process.
I believe we can resolve loads of political issues and controversies bogging down our government by the judicious amending of the Constitution. We don't amend the Constitution that much, but I'm not sure that was the Framer's intent. After all, they added 12 amendments in the first 20 years. I think we can serve ourselves well by adding two more: Amendment XXVIII, the Government Reform Amendment (GRA) and Amendment XXIX, the Privacy Amendment.
The GRA is designed to restrict the power of the Supreme Court in its extra-constitutional rulings using penumbras, emanations, and foreign law as well as limiting the power of Congress to pass government funds to states without any oversight. The Privacy Amendment is designed to delineate the right to privacy that is apparently in the penumbras and emanations of the other passages of the Constitution that only members of Supreme Court can see.
Text of the Amendments are below the fold:Government Reform Amendment
The Supreme Court of the United States shall not create new law when the authority to legislate is vested in another branch of the United States government or in the States, nor shall the Court rule on rights not enumerated in the Constitution. Should the requirements of justice necessitate a ruling on a non-enumerated right, the Court shall make a recommendation to the Congress that such right be adopted as an amendment to the Constitution and a ruling shall be reserved until such time as the amendment is ratified by the States.
The Supreme Court shall not give precedence or apply the principle of stare decisis to any foreign law except the English common law preceding the founding of the United States.
The Congress of the United States shall not appropriate funds for any purpose that primarily benefits one State unless such appropriation is found to be necessary for the improvement of interstate commerce or the national infrastructure nor shall any appropriation be distributed to any State, agency, or individual unless such appropriation has been approved by a majority of the members of each house in open session.
The budget of the United States shall be presented to the President for approval during the first year of each Congress and shall remain in effect, subject to amendments as circumstances may require, until the next Congress convenes.
Freedom of action and control of one’s person or property shall not be infringed by the government of the United States or any State unless it is proven by due process of law that such action is likely to result in substantial harm to another’s person or property.
Each person’s private information, identity, image, body or any part thereof, shall not be used or transferred for any commercial purpose without such person’s informed written consent nor shall any commercial entity send any commercial communications directly to any individual person through use of the postal system, telephone, Internet or any other medium without such person’s express consent.
As you can see these amendments would represent a fundamental change in many areas of law and politics that present blessings and pitfalls to all sides of the political spectrum. They also leave open plenty of room for legitimate interpretation by the Supreme Court. The main point of these amendments is to empower the people and restore liberty.
These amendments force the Supreme Court to refrain from ruling on matters outside of their express subject matter jurisdiction, which means that almost all social issues will remain state matters unless an amendment is passed to recognize it as a constitutional right.
GRA(1) basically incorporates Amendments IX and X into one clear directive: There may be other rights that people have as a matter of natural right, but unless it is enumerated in the Constitution, it is reserved to the States for a decision. This guarantees controversial issues like abortion and gay marriage get resolved using democratic means instead of being forced on a disagreeable and divided public by a tyrannical court. It shows no preference as to outcome of the debate, but it does provide a specific arena and it is not the Supreme Court.
GRA(2) speaks for itself.
GRA(3) prohibits pet projects that have no national purpose from being funded by the Congress at taxpayer's expense by requiring a finding of national purpose for all appropriations. It also requires an open vote on all appropriations. Basically, the current earmarking process will be unconstitutional.
GRA(4) makes the budget a one-and-done process for each Congress elected every two years. This will actually reduce the workload of Congress by requiring them only do one budget where they are currently doing two.
PA(1) thrusts a dagger in the heart of the nanny state by banning the micromanaging of people's personal lives and decisions. The implications are endless, and some of them may be against conservative interests. This is the price of freedom, but we will compete in the marketplace of ideas in order to make a more perfect union. The biggest pitfall here is that it could invalidate abortion laws, anti-gay marriage amendments, and drug prohibition. However, it would be up to the Court to decide what implicates the right to privacy and how far that right extends until it runs up against GRA(1).
PA(2) bans the trading of genetic material, body parts, and any other Brave New World procedure without a person's consent. This is a hat tip to Michael Crichton and his warnings about the moral implications of the genetics business. It also sounds the death knell for the paparazzi and would give celebrities part of their private lives back. Finally, it bans junk mail, telemarketing, and spam in an effort to reduce fraud, ID theft, and plain old annoyances and harassment of individuals by aggressive marketers.
Overall, it re-balances the balance of power between the government and the people for the 21st century. This is by no means a wholesale giveaway to conservative interests and there is a lot for liberals to like, but the point is not to predetermine outcomes of political debates of honest differences of opinion. The purpose is to give the public more of a say in matters they care deeply about, reduce corruption, and restore freedom to the individual.
Comments and analysis are welcome as are strategies to get these amendments ratified.