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.


  1. Like the Fair Tax, a fantastic idea...but the Fox is guarding the henhouse

  2. I like the idea of appealing to the people to elect representatives who will support the resolution - but good luck on getting the massive publicity you'll need! Liberals will show their contempt for this great idea by totally ignoring it.

  3. May Fortune favor this effort.

  4. I love the concept, will give it serious consideration of support, and if afterward I still think it as worthy as it seems to be, I'll promote it enthusiastically.

  5. This idea is intriguing but I have a few questions.

    1. Does it have teeth? What if a sitting judge just refuses to abide by this?

    2. Can it be reversed by another simple majority ruling?

    3. Can it be used to roll back any of the laws that are not constitutional as intended by the framers (goes to point 1 I guess)

    If this can be passed (in 2010 it is likely if promoted properly) then I suspect it will be ignored by judges and the current president alike.

    Even so it might provide ammunition to promote a binding amendment process. "We tried to do this without an Amendment process but as you can see they have refused to abide by the will of the people", seems like a win/win, they honor it or through it into people's faces (again) in essence declaring open war against our constitutional form of government.

    I would hate to waste the political capital that Obama and his merry band of regressive are building up for us, but 2K10 an amendment process would never fly (not a real threat) so this is a very interesting interim move.

  6. With the retirement of JP Stevens, original intent conservatives now have a front-page opportunity to conduct a national "teach-in" on the nature of the Constitution and on the limited form of central government the Founders envisioned. This resolution can be an important part of that educational effort.

    Those who think it will fail a priori are victims of political and cultural despair. They should not be heeded; they should be taught.

    The Tea Party movement has already done a lot to deepen popular recognition of the tenets of limited central government. This resolution can be another milepost in the Long March back to the path of American exceptionalism.

  7. This is exciting to see some action here on a problem that I have seen for a long time now and just recently began to act upon. The dismissal of the Constitution is definitely at the core of the issues in America today. I believe that there are other big changes that can be made as well. Please See my blog message series beginning with "The STATES of Our Union..." numbered 0-5 and ending with future plans for blogs.