From starrd@mary Mon Aug 15 23:01:49 1994
Path: hollywood.cinenet.net!babbage.ece.uc.edu!news.kei.com!MathWorks.Com!news2.near.net!info-server.bbn.com!jpg
From: jpg@bbn.com (John Gunshenan)
Newsgroups: talk.politics.guns,misc.legal
Subject: Constitution Enforcement Amendment
Followup-To: talk.politics.guns
Date: 14 Aug 1994 20:50:52 GMT
Organization: Bolt, Beranek and Newman Inc.
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Folks,
	Like many citizens, I'm pretty disgusted and frustrated by the
poor performance of our political system.  I think I have an idea as to
how we might improve it.  I'd be interested in hearing some feedback,
so I'm posting it to the nets.  What better way to get feedback? =8-}
	I'm not a lawyer, so please try to look past my legal ignorance
and consider the idea. 

The Problem
===========
	Here's the problem as I see it.  When Congress passes a bad 
law,  we're stuck with it until the judiciary declares it 
unconstitutional.  We can't get rid of it until a case comes along that
goes through the court system & causes the judiciary to throw out the 
bad law.  Such cases are often slow in coming, if they come at all.  I
believe we have a tremendous amount of bad laws, policies, agencies
and regulations on the books.  I'd like to see them cleaned out.
	It seems to me that during the world wars and the cold war, 
We the People allowed the Federal Government to greatly expand its 
power over the citizens.  We sacrificed some freedom to gain some 
security.  I believe it's time we took that freedom back.
	We won the wars, but in doing so we allowed out government
to really mess itself up.  I believe it's time we cleaned up that mess
and went back to the kind of government intended by the framers of our
constitution.  I believe it's time we enforced the *entire* constitution,
especially including the bill of rights.  It's clear we can't trust the
politicians with this task.  I'm hoping we can empower the judiciary to
do so.

The Amendment
=============
	Suppose we were to start a grassroots movement to amend the
constitution such that any act of Congress had to pass a judicial 
review before it became law, and that the judicial review would 
determine whether the act is constitutional, and especially whether 
it falls within the constitutional powers of Congress.  If not, the 
act is annulled.  To perform this judicial review, this amendment
would create the "Constitution Enforcement Agency" (CEA) within the 
Judiciary Branch of the Federal Government.
	This amendment would further specify that the CEA review
all previous acts of congress that are currently "active" laws,  
starting with the most recent acts and working backwards.  Anything 
Congress did that was beyond it's Constitutional charter would be 
annulled.
	Federal Agencies and Departments would also be subject to this
review.  Their existence, charter, policies, or programs would be 
annulled wherever they fell outside the Constitutional charter of the
Federal Government.  The annulments would take effect immediately, 
except in cases where there is a threat to National Security.  In such
cases, the CEA could set the annulment to take effect up to one
year in the future.   (For example, you don't want something like the
Nuclear Regulatory Agency to disappear before you can build a legal 
replacement.)
	By annulment, I mean that the offending law, policy, 
regulation, agency, or department instantly ceases to exist.  Funding,
is cut, any employees have to find new jobs, etc, etc.  The
CEA would not direct the Fed to fix itself.  The CEA
would have the power and the obligation to amputate whatever doesn't
fit within the constitution.  It would be up to the Fed to bandage
the wounds & reassign the people & assets, and figure out how to 
function without the amputated parts.
	We could further specify that the budget for the CEA
would be defined to be exactly the same as the budget for
the legislative branch.  We'd spend just as much on cleaning up as we
do on the mess-makers.  Each judge would be paid on the same scale as
supreme court justices.  These judges would  not be appointed by 
politicians.  They would be nominated and elected by the federal 
judiciary.
	We could charge the Supreme Court with the responsibility of 
initially setting up the CEA.  Once established, the CEA would 
be independent and run itself, just like the Supreme Court.
	We could require that any funds saved by these annulments
be applied to reducing the deficit.  If the deficit is paid off,
these funds would be distributed to the states in proportion
to their populations.
	We could call this the "Constitution Enforcement Amendment".
It would serve to go through and clean up the existing system, 
throwing out federal laws, agencies, and policies that should not
exist, according to the constitution.

What It Would Mean
==================
	I'm concerned about the "Law of Unintended Consequences".  
It seems to me that if we force the Fed to obey the constitution, 
mostly good things would happen.  We may throw some babies out with 
all that bathwater.  We'd have to rely on Congress to come up with 
constitutional ways to rescue those babies, or the States would have
to pick them up.  For example, what would happen to the EPA and the 
Nuclear Regulatory Agency?
	I want to take back our government.  It seems to me that over
the years, the politicians have been steadily increasing their power,
while the Judiciary has remained fairly static.  I think the original
balance of power among the branches of government has shifted too far
toward the Legislative and Executive branches, and away from the people.
I think we might be better off if we pushed the balance back toward 
the Judicial branch.  If we can enforce the Constitution, it seems to me
the power will dramatically shift back toward the people.
	To my mind, this approach should be tried long before the 
constitutional convention advocated by some, or the armed rebellion 
that many folks are preparing for.  If this approach works, the 
constitutional convention and armed rebellion should be unnecessary.
I'm concerned that the government resulting from an armed revolution 
or a constitutional convention could be *much* worse than the 
government we have now.
	Does anyone think this kind of approach might work?  Are there
folks out there with the time, energy, expertise, and inclination to
make such a constitutional amendment happen?  The last amendment I know
of happened in 1971.  It doesn't seem unreasonable to expect that we 
could amend the constitution again in the '90s.

	What do folks think about this?
	John Gunshenan




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