First draft of an application to create a US Constitutional Court

This application for a State Application for an amendment convention is based heavily on two writings by Michael B. Rappaport, University of San Diego School of Law. The first writing is “Reforming Article V: The Problems Created by the National Convention Amendment Method and How to Fix Them,” Virginia Law Review, Vol. 96, No. 7, November 2010. The second is “The Failure of the Constitutional Amendment Process to Protect Federalism: A Diagnosis and Treatment Plan,http://libertylawsite.org/liberty-forum/the-failure-of-the-constitutional-amendment-process-to-protect-federalism-a-diagnosis-and-treatment-plan.

I took most of Rapport’s concepts about the limited constitutional convention and hopefully improved them slightly in structuring this first draft of an application. The concept of splitting the Federal Court into two courts is my own idea.

I am interested in receiving your feedback on the process and structure in the application, and on the concept of splitting the Court. I am working on a second draft. You may leave comments in this blog site, or you may email me directly at scott@amorian.org.

Just a few comments on the draft and on things I learned as I worked through some of the details of the convention, about the Amendment Convention in general:

1) The writing style is directed to the citizens because it requires popular support, so the language is kept as simple as possible to make it widely accessible.

2) The Amendment Convention stands on the assumption that the Federal government is corrupt and probably on the verge of becoming a tyranny, and the Constitution is flawed. If the Federal government were well behaved, there would be no need for an Amendment Convention because Congress would repair the problem. If the Constitution were perfect, the problem being addressed would lie with the makeup of the members of government, not with the Constitution, so reform would require an election to solve the problem, not an amendment. George Mason demanded the inclusion of the Convention in the Constitution under the assumption that the Constitution was a flawed document that would have to be repaired some day, otherwise it would eventually lead to an abusive government. Because the problem is with the Constitution and the government it creates, this application discounts the credibility and authority of Federal action to as great a degree as possible, with the intent of remaining respectful to the people in government. In this application Congresses role is reduced to almost a simple clerical role that can be overridden by the States if Congress demonstrates that it is so corrupt it is unable to fulfill its simple roles. Just as the Declaration of Independence was by default a declaration of war, so is the Amendment Convention by default a declaration by the States of a government emergency in the form of a Constitutional crisis.

3) This draft is incomplete. I expect it would be modified in some type of pre-Convention convention before it would be accepted by State legislators as described in Rapport’s articles. Basically, the pre-convention would determine the needs, and therefore the requirements, for the Convention to fulfill. The documented requirements would be the basis for the State legislatures approving or disapproving the proposed amendment.

4) The application assumes that the public must support the application, and that the public will not support something vague and uncertain. So this application attempts to present as much information about the Convention as possible without being overwhelming, and it provides firm measures for making the execution of the application certain. In this draft, the ominous runaway Convention can still happen, but the construction of this application sets up the Convention in such a way that anything created by a runaway Convention must be approved by three-fourths majority of State conventions which are, by the construction of the application, representative of the State citizens and not the State governments.

5) Rappaport’s original article “Reforming Article V” suggests: “If the large and small states had equal authority at both the drafting and the ratification stage, that would provide the small states with excessive power and reduce the representativeness of the amendment process. To correct this distortion, an amendment should be deemed ratified only when states representing three-quarters of the electoral votes, rather than simply three-quarters of the states, approve it. Finally, because the state legislatures draft the amendment, they should not have any role in ratifying it. Therefore, the proposal allows ratification either by state conventions or by a vote of the people through state ballot measures.” I worked around those two problem by binding the States to be unable to approve the proposed amendment by adding the requirement of the approval of a general national referendum before the applying States could approve the proposed amendment. A State-by-State referendum ballot would work also.

6) I did not write out the proposed amendment in this application. For this application, the Convention has to do some work figuring out issues other than the wording of the amendment. The Convention must define how the amendment is to be put into operation. The Convention must create a contract defining a new office, in effect, a lesser constitution. The analysis of both tasks may affect the final wording of the amendment, so the wording is not constructed until construction begins on the wording of the other documents. If the States proposed a pre-worded amendment with a fixed outcome for the Convention, there would be little practical purpose in holding the Convention. It would reduce the Convention’s proposal to a symbolic clerical action. While I suppose that would be in keeping with the writing of Article V technically, since Article V only requires a Convention to propose the amendment, not to create it, the reduction of the Convention would probably be contrary to the intents of the Framers, as vague as they were on this topic. For this application, I assume that the States will select specialists to work on the amendment draft and the implementation designs, and that all vested parties, Federal, State and citizen will be comforted by the fact that the integrity of Article V has not been weakened; the rule of law stands firm and tradition has been upheld.

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State application for a Constitutional Amendment Convention per Article V of the US Constitution

I. The Theory of Law

When the Framers were completing their draft of the Constitution of the United States of America, they were open about the fact that the Constitution was incomplete and subject to abuse. Some, such as George Mason, were certain that the Constitution’s structure would inevitably lead to the Federal government becoming a tyranny. So the Framers wisely provided not just one but two devices through which future generations would have the duty and honor of taking action to better perfect their work. They established a congressional amendment process to allow the Federal government to make changes to the form of government to better fulfill its duty to serve the purposes of the citizens. And they established a State’s amendment process so the citizens could make needed changes to the Constitution with the support of their respective State governments in the event that Congress could not or would not make those changes.

The Framers constructed the US Constitution as a liberal constitution. A liberal constitution is a contract held freely between citizens to establish a government. As with all contracts between free people, a liberal constitution is made freely, voided freely, modified freely and retained freely with all power of choice in those matters resting ultimately with the citizens and no other party. When such a contract ceases to serve the purposes of free citizens, the citizens are right to modify or even end the contract, retaining only their shared obligations to outside parties which were made under the contract.

The citizens of this State recognize that free people must not change their constitution for light and transient causes. The peace and happiness of the citizens of any state or nation depend greatly on the stability of their government. When necessary changes are made to a constitution those changes must not be attempts to control or manipulate their fellow citizens, because attempting to do so denies the citizens their God given right of freedom. Change, when it is proper, addresses only the good purposes, limits and organization of government. When good purposes of government are not being fulfilled or good limits placed on government are routinely violated because government is organized in such a way that it can not or will not fulfill its purposes or respect its limits, free citizens are right to make necessary changes to the organization of their government.

The citizens of this State give notice to the Congress of the United States of America that the Federal government is not performing the good purposes stated in the United States Constitution; that the Federal government routinely exceeds the good limits in the United States Constitution; and that the ultimate cause for the lack of performance and the excesses of the Federal government are found in the structure of the Federal government. For those reasons, in keeping with the terms set in Article V of the United States Constitution, the citizens of this State seek to repair our form of national government.

Some would misconstrue this application as a condemnation of the many fine people working in the Federal government. This application is an acknowledgement that the Federal government was organized by the people’s document, the Constitution, in such a way that not only invites abuse, but almost necessitates it, as a great many of the fine people working in government can illustrate with numerous specific examples. This application is an effort to correct the primary structural flaw in the organization of the Federal government, not an attempt to blame any persons for its many problems. Through this application, the people accept their responsibility for correcting the primary problem in their document; the problem being found in the structure of government which is the lack of sufficient enforcement and oversight of the US Constitution.

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II. The Facts Applied to the Theory of Law

The citizens of this State present the following facts which, though neither complete nor detailed, are sufficient to illustrate the end results of critical problem of the inability of the Federal government to perform its duties.

The Federal government enriches one generation, running up obscene debt, at the expense of successive generations who not only have no right to vote, but many have not even entered the womb. In effect the parents live the high life by borrowing huge sums of money from a bank and promising the bank that their children will pay the debt after the parents pass away. Appropriately, on the death of the parents, the children, never having agreed to accept responsibility for that debt, have no obligation to pay the debt. The loss is the bank’s. Yet, the Federal government improperly holds children, who have not reached to age of majority, not the foolish bank, responsible for the debt incurred by the parents.

The Constitution permits Congress to take money from the citizens as taxes to support the “general welfare” of the citizens. The term “general welfare” in the Constitution is a generic reference to the government powers defined explicitly in the Constitution. It was never intended to be a grant of permission to Congress to spend money on anything and everything Congress deems the “general welfare.” Yet Congress in a gross, blatant, and intentional misinterpretation of this phrase pretends that it is empowered to take and spend all the citizen’s money it wants in the name of supporting the “general welfare.”

The Constitution gives to Congress and no other persons the power to declare war. But the War Powers Act gives the President the power to execute war as recognized by the actions of war. The members of Congress, recognizing that their approval of acts of war can be held against them at election time, have inappropriately delegated their right power to the Executive for the purpose of their own political expedience.

The Constitution requires that only Congress regulate money. Yet Congress has dispensed of this obligation, assigning its duty to commercial bankers.

The Constitution requires that States use only gold and silver as legal tender, but no State does so. The Federal government has made paper money legal tender without modifying the Constitution.

The Constitution allows only Congress to make Federal laws. Yet the Federal Court routinely make laws, sometimes in conflict with the letter and intent of the Constitution. Once precedence is established, the bad laws created by the Court are very difficult to undo.

The Constitution permits the President to make orders necessary to execute directives from Congress. The President routinely makes laws as recognized by the effects under the guise of executive orders, thereby circumventing the legislative power of Congress.

The Federal government is in a continual state of expansion of regulations. It seems to desire to regulate every object in every person’s household. It even insists it has the right to regulate the air in every breath we breathe, the water in every drop we drink, and the earth under every step we take.

When war is fought, government is obliged to declare war, and attempt to win, or if it cannot, to remove itself and make any proper reparations. Yet, the Federal government involves us in undeclared wars as recognized by the actions of war, and spills the blood of young soldiers without being clear about the purposes of the war and without attempting to win.

The balance of powers was intended to reduce the severity of violation of the obligations and limits of the Constitution. But when the branches find it mutually beneficial to ignore those obligations and limits, they occasionally collude to do so.

Elected officers are meant to represent the citizens in a fair and balanced way. Yet, the practice of accepting bribes openly in the form of campaign donations leads to influence of legislation that favors the wealthy at the expense of those of modest means.

Congress passes laws without giving the legislators sufficient time to read and understand them. This is not due process, yet the laws stand.

Congress passes laws based on “horse trading” for votes on bills. A great many laws are not passed because of merit. They are passed for the purposes of political expedience and advantage of the legislators. Many laws are proposed, not for the purpose of the law, but for the purpose of political gamesmanship. The politicians, not the people, are being served by these actions.

Congress regularly and intentionally lies to the public with regard to the increasing of taxes, calling changes in taxes decreases, when they are actually increasing taxes.

Congress applies endless techniques to hide taxes from citizens, so that most citizens are unaware of the amount of taxes they pay to the Federal government.

The Constitution gives Congress the power to regulate commerce to prevent unfair trade practices between States. Yet, Congress knowingly abuses this power, giving to itself an alien right to regulate in any way any and all items crossing State lines.

When apportioning congressional districts, the dominant political parties draw the district borders in such a way that they help secure the continued dominance of that party in a political practice called “gerrymandering.” This creates an unfair and unbalanced political playing field that gives preference to the desires of the politically powerful instead of the majority of the citizens.

The Constitution establishes the election cycle with the intent of preventing the creation of bad laws and actions by giving the citizens the power to remove bad officeholders. But when the bad officeholder creates bad laws and actions, and the voters replace the bad officeholder with a new officeholder, the bad laws and actions remain in place. The bad laws are not undone. Over time, the bad laws and actions accumulate and become instruments of abuse by all officeholders.

The Constitution assigns the duty of enforcing the constitutional limits and obligations of government on government to the Court. But the Court is the creation of the Legislature and Executive. In essence, the criminals appoint their own judges, as well as operate the various departments of justice.

The Constitution gives only Congress the power of impeachment. But when Congress abuses power in gross ways, and the President colludes and supports the abuses, Congress will not impeach the President for committing the miserable acts they were a party to. Only the citizens, in next election cycle, can remove the abusive President from office. And the acts committed remain in place after the next President is elected.

This handful of examples is only a partial illustration of how ineffective the Federal government has become. A detailed list of complaints would certainly require at least a small book to cover fully. These examples are sufficient to represent the necessity and urgency of making deep reforms.

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III. Request for Judgment and Reparations

For the reasons illustrated by the above brief examples and more, the citizens of this State seek to modify the form of the United States government to correct the cause of those failures.

The cause of the Federal abuse was known during drafting of the original Constitution. The Constitution lacks sufficient enforcement of its limits and obligations. The Framers gave the Federal Government the positive powers of making laws, enforcing laws, negotiating with other nations on behalf of the States, and collecting taxes, but they also made that same body responsible for ensuring that it did not abuse its powers. In effect they put the thieves in charge of enforcing the law on themselves. Such an arrangement must end in corruption and tyranny.

The more than 230 years of United States history have proved that the established instruments of limiting the Federal Government do not work. The citizens have used lawsuits against the government. We continually vote bad office holders out of office. The balance of powers is weakened by acts of collusion between the Legislature, Executive, and the Court. The Court, where the power of enforcement of the Constitution should lie, is a creation of the Legislature and Executive so that, in effect, two gangs of thieves are in charge of appointing their judges as well as running the law enforcement offices. Despite the use of traditional instruments to keep the government proper, the corruption in government continues to grow. The demonstrated inability of instruments of governmental control gives us cause to seek a more effective way to address Federal non-performance and impede excesses.

For those reasons, in keeping with Article V of the Constitution and the intent of the Framers, in the name of the State’s good citizens, this State sends this application for amendment to the Constitution to the Congress of the United States of America, and reminds Congress of its duty to call for a Constitutional Convention to amend the Constitution of the United States of America if two-thirds of the States apply likewise.

Because the flaw in the Constitution has negatively affected the integrity of the Federal Legislature, which is one of the two sources in Article V for amending the Constitution, the citizens of this State have no choice but to require the alternative, the Constitutional Amendment Convention, to amend the Constitution.

This State condemns any efforts by the Federal Legislature to pursue any purpose similar to those set in this application, because this State will not have, in effect, the thieves making “improvements” to the justice system after being caught stealing. Today’s Congresses is famous for its prodigious ability and willingness to exercise legal slight of hand, so Congress is poorly suited to this task.

This State recognizes that, as a practical matter, before the citizens can require and approve a call for an amendment, the character of the amendment, as well as the process for creating it and implementing it, must be defined in enough detail to give the citizens cause to require and approve it; and it must be solidified enough in its form that the citizens will not doubt that the amendment’s purposes and processes that they have required and approved will be implemented without variation. Reasonable people will not support something vague and uncertain that could have profound effects on their lives, freedom and happiness. To ensure the trust and confidence of the citizens of this State in this most serious of matters, this State requires that all of the processes described in this application and only the processes described in this application be followed exactly and that all of the purposes described in this application, and only the purposes described in this application be fulfilled by the members of Congress, the States and the Conventions. If the processes are not followed exactly, or alternate purposes are attempted, or the processes or purposes are incomplete the members of this State’s legislature preemptively require themselves by law to decline the proposed amendment.

To ensure our citizens that the State legislature will not undermine the people’s good faith in government, this State shall bind by law the promises of the State legislature found in this application. To that end, this State shall hold any member of State government who attempts to ignore the promises made by this State in this application to be in contempt of this State. This State charges its police to with arrest for trial any member of State government who reneges on these promises. This State charges its judiciary to try such persons for crimes against the State. The crime shall be equivalent to espionage. No pardons may be given to any tried person if found guilty. Because of the seriousness of the business at hand, the punishment if found guilty shall be ten years in prison.

Article V allows Congress choose a State convention process to give a final vote of approval or disapproval of the amendment. A State convention must be a citizen’s convention, completely separate from actions made by the State legislatures, otherwise the same legislature that would approve or disapprove the amendment directly would be able to approve or disapprove it indirectly by manipulating the State convention. Therefore, to minimize opportunities for manipulation by the State legislatures, this application must define how the possible State conventions will be organized and run. This will serve the purpose of Article V of giving Congress the choice of using State conventions or legislatures to vote on the amendment in case Congress doubts the properness of having the State legislatures vote.

This State considers this application to be valid for 25 years from the date of its signing. If two-thirds of all States submit this same application in that time, and the appropriate members of the Federal government do not act, this State considers that inaction to be intentional interference with the duties of the officers of this State, and as such, may be justicable by this State. In the event that Congress neglects its duty, this State shall notify its Congressional representatives that it is proceeding with the Convention without the convenience of support from Congress in collecting applications and calling for a Convention, and that when two-thirds of the State legislatures compare their applications and unanimously determine and declare that they are the same, this State shall consider the Convention called.

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IV. Proposal

The legislature of this State shall only vote “Yes” to approve the proposed amendment if it meets the following requirements and no others. The Amendment shall do the following:

  1. Split the Supreme Court into a Federal Court and Constitutional Court.
  1. Remove the Constitutional Court from the domain of the Federal government.
  1. Make the Constitutional Court an employee of the citizens with fiduciary duty to the citizens instead of the Federal government.
  1. Have the citizens set the Constitutional Court’s budget.
  1. Have the citizens determine the Constitutional Court’s general rules for operating.
  1. Have the citizens appoint and remove the head of the Constitutional Court at will through their State legislatures. Require that 55% of all State legislatures submit an application saying simply that the State requests a recall election of the named President of the Constitutional Court. Have Congress, in a clerical role, receive the applications and call a national recall election for the President of the Constitutional Court, and do so with fourteen days of receiving the determining application. Failure by members of Congress to act appropriately will be justicable by any State as an offense against that State.
  1. Have the Federal government collect the Constitutional Court’s finances through the Federal tax system.
  1. In the event of a recall election, require the States to hold the election within 60 days of the final State’s request for recall.
  1. Require a citizen’s vote to determine whether the President of the Constitutional Court is recalled. Require a 60% majority to recall.
  1. Empower the Constitutional Court to adjudicate on Constitutional issues only.
  1. Empower the Constitutional Court to impeach federal office holders.
  1. Empower the Constitutional Court to proactively address violations of the limits of the Constitution by the Federal government and its office holders.
  1. Empower the Constitutional Court to proactively address abuses of the Constitution by citizens who attempt to create an unbalanced playing field by such as acts as bribery of office holders.
  1. Empower the Constitutional Court to arrest and try persons for abuses of the Constitution.
  1. Empower the Constitutional Court to void laws of Congress and acts of the Chief Executive without need of lawsuits.
  1. Establish the Federal Court as an organ of Federal government, continuing the role of the current Federal courts with respect to Federal legislation.
  1. Empower the Federal Court to adjudicate on Congressional legislation and Executive acts only.
  1. Deny immunity to all persons found guilty of a crime by the Constitutional Court without exceptions.
  1. Require as an additional security, a national vote of the citizens before this proposed Amendment can be approved. Require only a majority vote of the citizens for approval.
  1. Forbid all persons from interfering with the Constitutional Court. Forbid Congress from making any law or amendment affecting or altering the Constitutional Court.
  1. Sustains the legitimacy of existing laws and actions until such time as they may be reversed by the Constitutional Court. Require a public referendum ballot for approval of all reversals.
  1. Permit the Constitutional Court to direct employees of government to act in accordance with the Constitution subject to impeachment, and possible arrest and penalty, if they fail.
  1. Forbid the Constitutional Court from pursuing penal actions against all persons for acts committed prior to the Court becoming operational.
  1. Require a written contract, separate from the Constitution, for the citizens to form and order the Constitutional Court. This proposed amendment may not define any terms of the new contract except for the fact that it exists, and it is held and controlled by the citizens, and that the amendment empowers the Constitution Court to exercise powers over the Federal government as defined in this amendment.
  1. Require the Federal government to try persons attempting become office holder in the Constitutional Court using intentional misrepresentation.

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V. Procedure

The legislature of this State shall only vote “Yes” to approve the proposed amendment if the following procedures are followed and no others. This State disapproves this proposed amendment if any variation is made in these procedures. Any attempts to intentionally vary from these procedures with the intent to force the disapproval of the amendment shall be considered a high crime against this State. This State shall not consider such criminal acts a cause for disapproval. This State shall arrest and try any persons attempting to sabotage this State’s application process. The minimum sentence for attempting to sabotage this process shall be 10 years in prison without possibility of parole, immunity or pardon.

The process for creating the Amendment shall be as follows:

1. This State submits this application to Congress.

2. Congress shall, if two thirds of the US States submit an application which is identical verbatim to this application less State name, Secretarial signature and seal, and signing date, acknowledge that the people of the United States of America have initiated the Constitutional Amendment Convention process per Article V of the Constitution by applying for a Convention. Congress shall call for the Convention within two weeks after two thirds of all US States submit this application within a 25 year period.

If Congress fails in this clerical duty, the applying State legislatures may compare their applications and if the applying State legislatures say unanimously that they recognize that applications are identical, less State name, signatures and dates, this State shall notify its Congressional representatives that Congress is in contempt of the Constitution, and this State shall call for the Convention itself.

4. Within 30 days of Congresses call for Convention, each legislature of each State shall select two delegates to attend the Convention. No State is required to send delegates to the Convention.

5. The Governors of the States shall arrange the Convention, to occur within ninety days of the submission of this application by two-thirds of the States. The arrangement supported by the majority of Governors fourteen days after the call for Convention shall be the arrangement for the Convention.

6. The Convention shall complete the draft of the proposed amendment and submit it to Congress. The Convention shall produce a draft of the initial contract for the new Constitutional Court. The Convention shall produce a detailed plan for putting the new Courts into operation. The Conventional shall set the date for the citizens’ balloting. The delegates are at liberty to establish protocols for completing the draft of the amendment and initial Court rules and implementation plans. The delegates shall choose a Secretary whose signature shall be binding to the document. The Secretary’s signature shall indicate the completion of the proposal. No deadline for completing these documents may be set. No limits may be set for topics of discussion.

7. This State binds its delegates by law under punishment of five years in prison for failure to perform their duty to this State, to only approve of a proposed amendment if it meets the condition of this application. An exception will be granted if the Convention in general determines that the conditions in this application will damage the rights of the citizens of this State.

8. Employees of the Federal government shall not act in any way to influence the outcome of the Convention. To do so will be a high crime against this State, equivalent to espionage, and may be justicable by this State. No employee of the Federal government may participate in the Convention in any way.

9. Any attempt by any person to sway members of the Convention using anything except reasoned argument shall be a high crime against this State. The Governors must take care to provide for all of the needs of the delegates so that gifts such as motel rooms, meals, etc. are not provided to the delegates.

10. Upon its completion, the Secretary of the Convention shall sign and date the proposed amendment. Before the passing of four days, the Secretary shall submit the proposal to Congress. Congress must receive the proposal upon its presentation by the Secretary.

11. Within three weeks after Congress receives the proposal, Congress shall submit it for approval to either the State legislatures or to State conventions per Article V.

12. This State legislature preemptively votes “no” for this proposed amendment if a preliminary confirmation is not first made by a majority vote of the US citizens. The citizen’s vote shall be held on a given date within 120 to 240 days after the Secretary signs the proposal. The Convention shall set the date. No State is required to hold a citizen’s election. If the majority of the citizens voting in the citizen’s election do not approve of the proposal, the members of this State’s legislature, under penalty of law, preemptively votes “no” for the proposed amendment.

13. If Congress submits the proposed amendment to a State convention for approval, this State’s Governor shall arrange for the convention. To prevent the kinds of abuses that occur when politicians draw political maps, the Amendment Convention shall divide each State into convention districts based on county. The Governor and each State convention shall make efforts to insulate itself from machinations of the State legislature and shall produce reviewable documentation of the measures they took. This State shall treat any attempted machinations by employees of the State or Federal government to influence the outcome of the State convention as a criminal act against the State, equivalent to espionage, and punishable by five years imprisonment. No time limit may be set on the duration of the State conventions.

14. If Congress submits the proposal to the State legislature, the State legislature shall vote within 61 days of the closing of the final polls of the US citizen’s election. The members of the State legislature shall base their votes only on whether the proposed amendment meets the requirements described in this application, and on whether the procedures described in this document have been followed, and on nothing else. Each legislator voting “No” must publicly state which requirement has not been fulfilled, or which part of the end product is outside the scope of the requirements. Voting for any reason other than requirements and processes shall be a crime against the State as discussed previously in this application.

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VI. Example of the initial rules for the Constitutional Court.

Just as the Constitution is a contract, made and kept by the people to have a government, so does the Constitutional Court need a contract defining the limits, duties, powers and structure of the Constitutional Court. Over time the people will improve the rules to bring about more effective operation of the office.

The following set of rules is purely illustrative and non-binding. These are not intended to be a draft of the initial contract of the Constitutional Court. Rather, this section is advisory. It is intended to help minimize the veil of uncertainty on this subject, by providing examples of the kinds of rules the citizens may expect the Amendment Convention to produce and write into the contract.

  1. The people shall elect a new President of the Constitutional Court after the President resigns, or is removal from office by the people, or leaves office by any other means. The election shall be held within 60 days of the President leaving office.
  1. The President of the Constitutional Court shall appoint seven Justices. One shall be Chief Justice. Congress shall recommend two Justices. The US President shall recommend two Justices. The President of the Constitutional Court shall accept those recommended Justices at his or her discretion or select other Justices. The President of the Constitutional Court shall give preference to the recommended Justices.
  1. The President of the Constitutional Court shall appoint and remove Justices at will.
  1. To keep the citizen’s election processes as simple as possible, the President of the Constitutional Court shall submit a budget to the citizens every two years for the citizens to vote on at the time of the elections of the Federal House of Representatives. The President of the Constitutional Court’s budget shall be identical to the previous budget. Only the proportions of the disbursement of funds between the Court’s internal offices may change. The citizens shall have elective options to increase or decrease the budget in increments of 5% up to doubling the size of the budget or reducing it down as low as 5% of the budget. The average of the citizen’s election shall be the change in the budget accurate to six decimal places. The Constitutional Court may not have deficits. Surpluses must be applied to the following biannual budget, reducing the amount to tax owed by the citizens.
  1. The President of the Constitutional Court shall accept proposals from the States legislatures for changes to the Constitutional Court’s contract biannually with the budget request for the citizens’ vote. The President of the Constitutional Court shall be at liberty to submit any proposal. If 10% of the State Legislatures send a common proposal to the President of the Constitutional Court , the President of the Constitutional Court must submit the proposed rule change for the citizens’ vote. All contract changes must be approved by the majority of the citizens voting.
  1. The Constitutional Court shall receive all complaints from citizens concerning the Federal government’s violations of the citizen’s rights, and shall hear as many of those complaints as possible as permitted by the Court ‘s budget.
  1. The Constitutional Court shall have an investigative bureau to police intentional violations of the Constitution by office holders and citizens. Violations shall include but are not limited to crimes such as bribery and intentional violations of the Constitution by government office holders.
  1. To prevent bribery of candidates for the office of President of the Constitutional Court, Candidates shall not receive campaign money from identifiable persons. Candidates must accept all donations through a clearinghouse with rules for keeping the identities of donators secret. The act of donating money to candidates’ campaigns in a manner that reveals the identity of the donator to the candidate shall be considered bribery of a public official and may be justiciable by any State as an offense against that State.
  1. No Constitutional Court Justice may serve on the Court after reaching the natural age of 75.
  1. The President of the Constitutional Court must be a United States citizen who did not spend more than nine consecutive months living outside of the United States borders, or more than two years total living outside the United States borders between the ages of three and eighteen. For these purposes, the United States borders shall be the borders of the States. Time outside the United States borders by persons who were children of persons serving in US consulates and attending US schools attached to those consulates is not counted as absence.
  1. Before being considered for the office of President of the Constitutional Court or for Justice, of the Constitutional Court candidates must present for public examination proof of citizenship, and must present full relevant historical information such as employment history, military history, educational transcripts and other relevant adult writings and adult actions for public scrutiny. Intentional withholding or other misrepresentations are cause for immediate dismissal from office, and for Federal criminal charges against the office holder.
  1. No person may serve as President of the Constitutional Court if they share a parent, grand parent or great grand parent of a previous President of the Court, or if they are a descendant of a previous President of the Court. Parentage for this purpose is established as six total months of child rearing after the age of three.

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VII. States Convention

In the event that Congress chooses a States Convention to vote on the proposed amendment, the following shall be the procedures and organization for the States Convention. This State legislature must not be involved in any way in establishing the procedures and organization for the State Convention, except for the submittal of this application for an Amendment Convention.

  1. The Amendment Convention may divide all the States into sections based counties, or similar, lines. The Amendment Convention may not divide the States into sections based on any lines drawn by politicians in the last 150 years except where States have entered the Union since that time.
  1. The citizens in each county shall elect three delegates.
  1. The State Convention shall choose a secretary, a chairman, and each State’s Convention shall choose its format for discussing the proposed amendment.
  1. After discussing the proposed amendment, each delegate shall have one vote to approve or disapprove. The secretary shall count the votes. The names of the electors and their vote shall be published openly for the public to review.
  1. The amendment shall be considered approved by the State Convention only if a simple majority approves of the amendment.
  1. The secretary of the State Convention shall submit the results of the vote to Congress.

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VII. Advice

This Advice section of this proposal is non-binding and intended to be advisory only. This is not part of the proposal. States may modify this section at will without affecting the proposal.

1. This Constitutional Amendment Convention was anticipated by the Framers of the Constitution. The Framers understood that their document was incomplete and that the citizens would eventually need to do some finishing work. They provided not just one, but two mechanisms for proposing corrections to those flaws when the citizens would find it necessary or beneficial to do so. They provided a Federal mechanism for proposing amendments to the Constitution, and a citizen’s mechanism for proposing necessary amendments to the Constitution in case the Federal government could not or would not do so. They provided a State legislative process for approving the proposed amendments. They provided a citizen’s process for approval that permits the citizens to vote in case Congress considered a vote by the State legislatures undesirable.

The Framers did not specify many details of the citizen’s amendment process except that it requires 1) an application of indefinite form from two thirds of the States, 2) Congress formally acknowledge the application by calling for a Convention to propose the amendment, 3) after the Convention proposes the amendment Congress selects either the State legislatures or State conventions to approve or disapprove the proposed amendment, 4) the State convention is of indefinite form, and 5) three fourths of the bodies selected by Congress approve the proposed amendment. The Constitution does not forbid a prescribed form of application, therefore it is allowed. The Constitution does not define the form of the amendment convention or its process, so all forms and processes are allowed. The Constitution does not define the form and processes of the States’ approval conventions, so all form and processes are permitted. In short, they left the door open for the people to do what we thought wise to implement necessary amendments.

2. The Framers understood the general cause of the problem of government that is being addressed in this application. A brief sampling of a few of the Federalist Papers illustrates this.

In Federalist No. 48 the author notes this about the balance of powers:

“The conclusion which I am warranted in drawing from these observations is, that a mere demarcation on parchment of the constitutional limits of the several departments, is not a sufficient guard against those encroachments which lead to a tyrannical concentration of all the powers of government in the same hands.”

In No. 49 the author, in discussing why we have fixed election cycles instead of elections held “occasionally,” meaning only when necessary, concludes:

“The PASSIONS, therefore, not the REASON, of the public would sit in judgment. But it is the reason, alone, of the public, that ought to control and regulate the government. The passions ought to be controlled and regulated by the government. We found in the last paper, that mere declarations in the written constitution are not sufficient to restrain the several departments within their legal rights. It appears in this, that occasional appeals to the people would be neither a proper nor an effectual provision for that purpose.”

In No. 10 the author notes that democracy is a self destructive form of government. He describes the end results of democracy:

“Hence it is that such democracies have ever been spectacles of turbulence and contention; have ever been found incompatible with personal security or the rights of property; and have in general been as short in their lives as they have been violent in their deaths.”

Taken together, No. 10 and No. 49 remind us that public election is insufficient for enforcing the constitutional limits and obligations on government, and a dependence on public election would likely lead to disastrous results.

In No. 50 the author discusses directly the problem of controlling government. He discusses one failed model of enforcement that was tried in Pennsylvania. The politicians in that State formed a group called the Council of Censors. They tried to be their own enforcers of their state constitution, which was of course an unworkable process. He notes:

“This censorial body, therefore, proves at the same time, by its researches, the existence of the disease, and by its example, the inefficacy of the remedy.”

In other words, he wrote, the government cannot enforce its limits on itself.

In No. 51 the author writes famously:

“If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself. “

And there it is. At the very end of the quote the author says it. The Framers required the government to be the enforcer of the limits and duties imposed on itself. In essence, they put the criminals in charge of the justice system that was meant to restrain them.

Paper No. 48 demonstrates that the Framers understood that the balance of powers is inadequate to bring about enforcement of the Constitution. No. 10 and No. 49 illustrate the Framers familiarity with the weaknesses of the public election process. No. 50 illustrates that the Framers knew that government did poorly at enforcing its limits and its obligations on itself. Then No. 51 states that even though they were aware of the “inefficacy” of having government enforce its limits and obligations on itself, they went ahead and wrote the Constitution like that anyway. These Papers illustrate that some of the Framers were quite aware of the problem of using government to keep government under control.

George Mason and others had grave concerns that the government created by the Constitution would eventually end in tyranny. To help minimize the likelihood of such a government collapse they proposed and insisted that the Constitution provide a citizen’s process to amend the Constitution in the event that the Federal government could not or would not make necessary changes to the form of government. The delegates at the Grand Convention recognized the virtue in Mason’s proposal and not only did they vote to include the citizen’s process for amending the Constitution, but they emphasized its importance by voting approval of the measure unanimously.

Without the people’s process for amending the Constitution, it would be a tyrannical constitution, not a liberal constitution because it would deny the people the ability to exercise their ability to modify their contract for government at will. As a practical matter, reasonable people will not support a proposed amendment if its character is vague and its processes are not apparent and secured, preferably by law, which implies penalties for non-performance of duties. If the prescribed amendment convention were not permitted, the US would be in a state of tyranny.

The open amendment convention in which the convention can consider any and all proposals is permitted by Article V, but as a practical matter it will likely never enjoy the popular support of the people. In times of abusive government, reasonable people will not allow government to change their Constitution carte blanc. The open convention would probably be worse than the prodigal committee, which, when tasked with creating a horse, created a camel instead. For government to be completely corrupt the dominant political parties must be colluding to corrupt the government, in which case the corruption can easily reach to the State legislatures, so the convention process would likely be corrupted as well. The American people are not fools. We are predisposed to avoid the open convention because we see very little good coming from it. In better times the people would have very little reason to hold an amendment convention, and Congress would probably jump at the opportunity to put something positive into place.

3. By establishing a rule about what is bribery of a public official, this document sets the stage for campaign reform at all levels of government by defining bribery of a public official as donating capital to a candidate with the donator’s identity known. Under this definition we are still free to express our opinions and to donate money to candidates as we wish. We just remove from ourselves the freedom to bribe public officials. The difficulty here is the problem of slanted journalism that supports one candidate. Can that be considered a campaign donation? Slanted journalism would be excessively hard to police, so perhaps it should be accepted as non-contributions.

4. This application can be placed in a legal wrapper and put through the State’s proper processes for making laws. Through this mechanism the State can make the conditions in this document law, specifically the requirements that the State legislators disapprove non-conforming proposals. The proposed amendment will have powerful effects on the freedom of the people. If not implemented correctly, the amendment will have the most serious of negative consequences, so the requirement of imprisonment of State legislators for failing to perform their required duties in this task is not unreasonable.

If the States do not make those requirements law through the normal State process for making law, the application is still valid as an application. The State can still send the application to Congress. Congress can still make its call for Convention. The Convention can still produce its documents. The State legislatures or conventions can still vote to approve or disapprove the proposal. The procedures and requirements in Article V for making an amendment will have been fulfilled. The end product will be an amendment. However, because the Amendment Convention is of, by and for the people of the State, the State legislature will be in contempt of the citizens of the State. This is a matter internal to each State.

5. This application is written with awareness that it if put into operation, it will become a model for future applications. While the current Federal and State governments may not be so corrupt today as to necessitate such extreme actions as requiring State legislators to legally bind themselves to imprisonment for not voting a certain way on a certain issue in the future, a future application may have to address more severe conditions. So the final form of this application should be constructed so that the principles in it can apply to the more severe conditions. That way, if a more severe circumstance occurs, the people may refer to the precedents set in this first application as procedures for creating their application.

6. For this application, the Convention has to do some work figuring out issues other than the wording of the amendment. The Convention has to define how the amendment is to be put into operation. The Convention has to create a contract defining a new office. The analysis of both tasks may affect the final wording of the amendment, so the wording should be worked on while the other tasks are worked on. If the States proposed a pre-worded amendment with a fixed outcome for the Convention, there would be little practical purpose in holding the Convention. It would reduce the Convention’s proposal to a symbolic clerical action. While could be in keeping with the writing of Article V technically, since Article V only requires a Convention to propose the amendment, not to create it, the reduction of role of the Convention would probably be contrary to the intents of the Framers. For this application, I assume that the States will select specialists for the Convention to work on the drafting and the implementation designs, and that all vested parties, Federal, State and citizen will be comforted by the fact that the integrity of Article V has not been weakened. The rule of law stands firm. The Constitution has been upheld.

7. This application appeals directly to the highest authority found in the rights of the good people of the United States of America, and the principles of “the Laws of Nature and of Nature’s God,” and to the wise and beneficial processes described in Article V of the US Constitution.

“Bad principles in a Govt. tho slow are sure in their operation and will gradually destroy it.”
– James Madison’s notes on the debates in the Grand Convention. June 18, 1787

——————- DRAFT ——————

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1 Comment

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One response to “First draft of an application to create a US Constitutional Court

  1. My comments from

    http://www.912communique.com. Forum topic “The Great Divide – where it all began”

    This is an excellent article, John. It shows some of the early attitudes of Jefferson about a problem he saw in the Constitution, which he frequently wrote about in formal protests such as his draft letter of protest of Virginia in which he railed against the abuses of the Federal government.
    (See http://avalon.law.yale.edu/19th_century/jeffdec1.asp).

    Madison, writing in the Federal Papers, also foresaw the overextension of the primary cause of this split. In Federalist No. 50 he wrote famously:

    “If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.”

    This problem of assigning to government the task of keeping itself under control has been the heart of government excesses. Look at this in principle.

    Suppose a league of professional football teams had a good set of rules governing their play; but the league assigned to the players the responsibility of enforcing the rules on themselves. How would that work out?

    Suppose a community had a good set of laws to limit the actions of potential criminals; but the community assigned to the criminals the responsibility of enforcing the laws on themselves. How do you suppose that would work out?

    Suppose a citizenry had a government with a good set of rules (a Constitution) governing its actions; but the citizens assigned to the government the responsibility of enforcing its rules on itself. How do you suppose that would work out?

    You cannot have a group which is subject to a set of rules, which is the enforcer of those rules, and which gains advantage if it violates those rules, and then expect to have a credible and just system of rules.

    That is the cause of the problem of government excess that Jefferson complained about so passionately.

    The enforcemen of the rules, in our case the US Constitution, must come from a power completely separate from the subject of those rules. The Supreme Court was in theory supposed to be the neutral party. But by the construction of the Constitution the Supreme Court is the extension of the Executive and Legislative branches, because the Executive appoints and the Legislative approves. The Executive will tend to appoint only Justices who support abuses by the Executive. The Legislature will tend to approve only Justices who support abuses by the Legislature.

    Suppose that our above fictitious community assigned the criminals the ability to appoint their own judges to determine whether the criminals are misbehaving. How would that turn out?

    Is it any wonder that Jefferson feared so greatly the power of the Supreme Court to destroy the liberty that was meant to be protected by the Constitution?

    The problem has always been that the government has been the primary power determining whether it is violating the Constitution. The democracy has been the backup to the government in determining whether government is being excessive, but the abusiveness of democracy is well known.

    I have serious doubts about whether the US government as it is currently constituted can continue to function. I believe that it will continue its excesses, supported by an indirect democracy voting itself seemingly endless funds from the public treasury through its representatives, until the country is bankrupt beyond repair, if we are not at that point already.

    The repair to the Constution is fairly obvious: Separate the power of enforcement of the Constitution from the Federal government. I have written about this extensively here:

    https://usconstitutionalcourt.wordpress.com/2012/09/08/a-limited-convention-to-amend-the-us-constitution-fourth-draft/

    I believe I put more good stuff into the comment section than I put into the original article.

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