Tuesday, March 30, 2010

The Constitution Restoration Resolution

The written Constitution of the United States is the supreme Law of the Land, and its provisions shall bind the legislative, executive, and judicial branches of the United States and of the several States. Interpretation of the Constitution shall be governed by the original public meaning of each clause or Amendment at the time of its ratification. The judicial powers of the United States and of the several States shall not be construed to authorize any court to adopt any interpretation or construction of the Constitution that has the effect of amending or nullifying any of its provisions.

This Resolution states three distinct propositions: (1) the first clause declares that “this Constitution”—referring to the written Constitution—is supreme and binds all government officials, whether legislative, executive or judicial, at both the state and national levels; (2) the second clause declares it is the original public meaning of the text that is binding—that the meaning of the written Constitution remains the same until it is properly changed by written amendment pursuant to Article V; and (3) the third clause instructs that the Supreme Court (or any other court) cannot revise or nullify any clause or amendment through interpretation or construction.

For decades, law professors have taught that the meaning of the Constitution can evolve over time, or can be amended without following the procedures of Article V. For decades, the Supreme Court has effectively amended the text of the Constitution by adopting expansive interpretations of Congressional power—especially under the Commerce Clause, the Necessary and Proper Clause, and the clause granting Congress the power to lay and collect taxes “to pay the Debts and provide for the common Defense and general Welfare of the United States. The Court’s expansive reading of federal power has resulted in a corresponding shrinkage of the powers “reserved to the states, respectively or to the people” to which the Tenth Amendment refers. The Supreme Court has also effectively nullified other provisions of the Constitution by adopting interpretations that deprive them of any effect—such as the Ninth Amendment, the Privileges or Immunities Clause of the Fourteenth Amendment and, until recently, the Second Amendment.

The organizations comprising the Constitutional Restoration Project seek commitments from current members of the House and Senate, and candidates running for office to adopting the Constitution Restoration Resolution as Joint Resolution of Congress. Unlike a statute, a Joint Resolution of Congress cannot be filibustered in the Senate, does not require the signature of the President and cannot be vetoed by him. Unlike proposing a constitutional amendment, a Joint Resolution of Congress does not require a supermajority of both houses to adopt.

Yet the passage of such a Joint Resolution would have significant practical effects. First, it would bolster the resolve of sitting justices and judges, both federal and state, who seek to follow the original meaning of the Constitution, but who are opposed in their efforts by their fellow jurists, by legal academics, and by pundits. Because such judges are often deferential to Congress, a Joint Resolution would instruct them that it is the will of Congress that the original meaning of the Constitution as it has been amended is the Law of the Land to which the judiciary must adhere.

Second, the adoption of this Joint Resolution would bolster the arguments of the growing number of legal academics who defend interpreting the Constitution according to its original public meaning. Such a Resolution would provide these scholars with a potent response to their critics who claim that originalism is a deviant view that lacks political support among the American people. Reinforcing the arguments of these legal scholars would, in turn, further strengthen the hand of judges who resist the judicial amendment or nullification of the written Constitution.

The Constitution Restoration Project also seeks the commitment of current Senators, or senatorial candidates, to ask all judicial nominees whether they adhere to the three precepts of the Constitution Restoration Resolution, and to oppose the confirmation of any nominee who either disagrees with these precepts or refuses to expressly commit to them. Especially after these precepts have been adopted as a Joint Resolution of Congress, any judicial nominee who refuses to commit to following such a Resolution would be exposed as a judge who could not be trusted to follow all the commands of the Constitution. Senators would then have a principled basis for opposing such candidates.

To have your organization join the Constitution Restoration Project contact us at constitutionrestorationproject@gmail.com . Provide a link to your organization’s website that can be listed below. Together we can Restore the Constitution as it is written and enshrined in the hearts of the American people.