Third draft of an application to create a US Constitutional Court

I want your feedback on this third draft of the amendment application to create an agency tasked with enforcing the Constitution on the Federal government. This State’s application for amendment fixes the problem of out of control Federal government by splitting the Supreme Court into a Federal Court and a Constitutional Court, and empowering the Constitutional Court to enforce the Constitution on the Federal government.  You may leave comments in the comment section of this web site, or you may email me directly at scott@amorian.org.

See my notes in the comments.   If you entered this site on the main page, I suggest clicking on the post link over there on the right to get only this draft in your browser, otherwise because of the length of the drafts you might have problems finding the bottom of the document.

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State Application for a Convention to Amend the Constitution of the United States per Article V of the Constitution

I. 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 while the Constitution created a more perfect Union, it was incomplete and had flaws. Some, such as George Mason, were certain 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 honor of improving their great 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 their Constitution with the support of their respective State governments in the event that Congress could not or would not make necessary or desired 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 desires of 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.

It is an established and self evident principle that citizens of a liberal nation 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. Change, when it is proper, addresses only the good purposes, limits and organization of government, and the citizens’ obligations to support that government. When good purposes of liberal 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 fulfill its purposes and respect its limits, free citizens are right to make necessary changes to the organization of their government.

The citizens of these United States give notice to their Congress 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 construction of the Federal government. For those reasons, in keeping with the terms set in Article V of the United States Constitution and the principles of good government that the Constitution stands upon, the citizens of these States seek to repair our form of national government.

Some might 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 attest to with innumerable 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, we, the people of the United States of America, accept our responsibility for correcting the primary problem in our document; the problem being found in the structure of government, which is the lack of sufficient enforcement and oversight of the US Constitution with respect to the operation of the Federal government.

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II. The Facts Applied to the Theory of Law

The citizens of these States present the following facts which, though neither complete nor detailed, are sufficient to illustrate the results of critical problem of the inability of the Federal government to perform its duties.  Each illustration is a demonstration of the lack of enforcement of the Constitution:

The Federal government enriches one generation, running up an obscene debt of trillions of dollars, charging the repayment to successive generations who not only have no right to vote, but many have not even entered the womb.

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 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 Federal government has run for years without a necessary and proper budget, choosing instead to devote its energies to practicing endless factionalism.  Such is the inability of the Federal government to use due process when managing the people’s finances.

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 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 today. The Federal government has made paper money legal tender contrary to the writing in 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 their effects under the guise of executive orders, thereby circumventing the legislative power of Congress.

The Federal government expands its laws continually. 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, in Korean war and Vietnam war, 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 of government 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, so a great many laws are not passed because of merit, but 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.  Such laws are not “necessary and proper,” yet the people find themselves subject to those laws.

Congress regularly and intentionally lies to the public with regard to taxes, saying they are decreasing taxes, when they are actually they are 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 establish an even playing field in 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 simply because they cross a State line.

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 needs 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. This is like having criminals appoint their own judges, as well as operate the various departments of justice.

The Constitution gives the President the power of veto of undesirable laws.  Congress circumvents the wisdom of the principle of veto by packing the undesirable laws into single writings of legislation that also contain desirable laws, and then saying the package, not the individual laws within it, is a bill. Through this abuse of process, the President does not veto the individual undesirable laws.

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.  Many of the acts committed remain in place after the next President is elected.

This handful of examples is only a partial illustration of results of an imperfection in the Constitution, and how ineffective and abusive the Federal government has become. A detailed list of complaints would  require at least a small book to cover fully. These illustrations 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 and more, the citizens of these States 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. That is like putting 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 for limiting the Federal Government are insufficient in the purposes. 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, which is like having two gangs of thieves in charge of appointing their judges. Despite the use of traditional instruments to keep the government proper, the corruption in government continues to grow. The demonstrated inability of the established 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, the good citizens of two thirds of the United States send this application for a an Amendment Convention to the Constitution to the Congress of the United States of America.  We remind Congress of its duty to call a convention

Because the imperfection 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 Amendment Convention, to amend the Constitution.

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

These States 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 sufficient cause to support, 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 supported, 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, their freedom and their happiness. To ensure the trust and confidence of the citizens of the United States in this most serious of national matters, these States establish as a matter of necessity that all of the processes described in this application and only the processes described in this application must 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, the members of these States’ legislatures  require themselves by law, subject to penalty, to refuse assent to the proposed amendment.  Likewise these States require their members by law, subject to penalty, to refuse assent to any other proposed amendments that are produced by the Convention that is called as the result of this application.

To ensure our citizens that the State legislatures will not undermine the people’s good faith in government, each applying States legislature shall bind by law the promises found in this application. To that end, each applying State shall hold any government official who attempts to knowingly ignore the promises made in this application to be in violation of State law. Each applying State charges its police to with arrest for trial any member of its State government who reneges on these promises. Each applying State charges its judiciary to try such persons for crimes against the State. 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 for ratification of the amendment. A State convention must be a citizen’s convention, completely separate from 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. That would violate any purpose in having separate processes for ratification. 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 State legislatures to vote on the amendment in case Congress doubts the properness of having one or the other vote on ratification.

Once a State applying for the Convention elects to approve the proposed amendment, it may not rescind its decision.  The Application is a power of the States, not the Federal government, so the States, not the Federal government, determine the propriety of the application; no limitations of any kind may be applied by the Federal government.  The only power of choice of the Federal government in this matter is the choice of ratification methods.  If the Federal government refuse to act in accordance with Article V by calling for a convention, these applying States consider that inaction to be intentional interference with the duties of the officers of the respective States, and as such, may be justicable by any of these States.

In the event that Congress knowingly neglects its Constitutional duty to call for the Convention, each applying State shall notify its Congressional representatives that it is proceeding with the Convention without the acknowledging call from Congress, and that the Convention is called.

In the event that Congress knowingly neglects it Constitutional duty to select a ratification method, both methods, the State Legislatures and the State conventions, must ratify the proposed amendment.

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IV. Proposal

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

Split the Supreme Court into a Federal Court and Constitutional Court.

Remove the Constitutional Court from the domain of the Federal government.

Make the Constitutional Court an employee of the citizens with fiduciary duty to the citizens instead of the Federal government.

Have the citizens set the Constitutional Court’s budget.

Have the citizens determine the Constitutional Court’s general rules for operating.

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 may be justiced by any State as an offense against that State.

Have the Federal government collect the Constitutional Court’s finances through the Federal tax system.

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.

Require a citizen’s vote to determine whether the President of the Constitutional Court is recalled. Require a 60% majority to recall.

Empower the Constitutional Court to adjudicate on Constitutional issues only.

Empower the Constitutional Court to impeach any federal office holder.  Requires the Senate to try all impeached officers, except Senators.  Empowers the Constitutional Court to impeach and try Senators.

Empower the Constitutional Court to proactively address violations of the limits of the Constitution by the Federal government and its office holders.

Empower the Constitutional Court to proactively address abuses of the Constitution by citizens who attempt to create an unbalanced playing field by acts of office holders, such as bribery.

Empower the Constitutional Court to arrest and try persons for abuses of the Constitution.

Empower the Constitutional Court to void laws of Congress and acts of the Chief Executive without need of lawsuits from the citizens.

Establish the Federal Court as an organ of Federal government, continuing the role of the current Federal courts with respect to Federal legislation.

Empower the Federal Court to adjudicate on Congressional legislation and Executive acts only.

Deny immunity to all persons found guilty of a crime by the Constitutional Court exception foreign ambassadors.

Empowers the Constitutional Court to remove ambassadors who abuse their rights with respect to the Constitution.

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.

Forbid all persons from interfering with the Constitutional Court. Forbid Congress from making any law or amendment affecting or altering the Constitutional Court.

Sustains as temporarily legitimate all existing laws and actions known to be unconstitutional until such time as they may be safely and responsibly reversed.

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 to do so.

Forbid the Constitutional Court from pursuing penal actions against all persons for acts committed prior to the Court becoming operational.

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.

Require the Federal government to try persons attempting become an office holder in the Constitutional Court using intentional misrepresentation.

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V. Procedure

The legislature of these States shall only vote “Yes” to approve the proposed amendment if the following procedures are followed and no others. These States disapprove 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 these States. Such criminal acts shall not be cause for disapproval. These States shall arrest and try any persons attempting to sabotage this application process. The minimum sentence for attempting to sabotage this process shall be 10 years in prison without possibility of parole, immunity or pardon, to be justiced by any applying State.

The process for creating the Amendment shall be as follows:

1. These States submit this application to Congress.  One copy shall be given to the Speaker of the House.  One copy shall be given to the president pro-tempore of the Senate.

2. Congress shall acknowledge that the people of the United States of America have initiated the Constitutional Amendment Convention process per Article V of the Constitution by calling for a Convention.

If Congress fails in this duty, the applying State legislatures shall call for the Convention.

4. Within 30 days of the call for Convention, each legislature of each State and each district or territory of voting US citizens shall select two delegates to attend the Convention. No State, district, or territory is required to send delegates to the Convention.  Each State’s convention delegate shall receive a stipend of an amount set by the State’s Governor.

5.  Within 60 days of the call for Convention, each State shall select State delegates for the possible State convention in the event that a State convention is used to decide on the proposed amendment.  The voters in each county, or equivalent, shall elect two delegates, and one backup delegate in case one of the primary delegates cannot attend.  The candidate receiving the most votes and the second most votes shall be the county’s delegates.  The candidate receiving the third amount of votes shall be the backup delegate.  The State convention shall be valid if two or three of any county’s delegates cannot attend.  The State convention delegates shall receive a stipend of an amount set by the Governor.

6. The Governors of the States shall arrange the Amendment Convention, to be held within 90 days of the submission of this application by two-thirds of the States. The arrangement supported by the majority of Governors sixty days after the call for Convention shall be the arrangement for the Convention.

7.  The Amendment Convention may not begin until after the delegates for the possible State conventions are selected.

8. The Convention shall complete the draft of the proposed amendment and submit it to Congress. One copy shall be given to the Speaker of the House.  One copy shall be given to the president pro-tempore of the Senate. 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’ national balloting. The delegates are at liberty to establish protocols for completing the drafts of the amendment, and of the initial Court rules, and of the implementation plans. The delegates shall choose a Secretary whose signature shall bind 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.

9. 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, and may be justicable by this State. No employee of the Federal government or their representatives may participate in the Convention in any way.  Legislators, judges and members of the executive branch are considered employees of the Federal government.

10. This State considers any attempt by any person to sway its delegate to the Convention using anything except reasoned argument as a crime against this State justicable by this State. The Governors shall provide for all of the needs of the delegates so that gifts such as motel rooms, meals, etc. are not provided to the delegates.

11. Upon its completion and approval by the Convention, the Secretary of the Convention shall sign and date the proposed amendment. Before the passing of four days, the Secretary shall present the proposal to Congress.

12. 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.  Because the application process assumes that Congress and the Supreme Court are biased, any judgement by Congress or the Court that this application is invalid shall be considered as advisory and not authoritative.  This is a well considered action of the people through their State exercising their God given right to repair their form of national government.

13. The applying State legislature may not decide on this proposed amendment until after a preliminary affirmative decision is first made by a majority vote of the US citizens. The citizens’ vote shall be held on a given date within 120 to 240 days after the Convention Secretary signs the proposal. The Convention shall set the date of election. No State is required to hold a citizen’s election. If the majority of the citizens voting in the national citizen’s election do not approve of the proposal, the members of this State’s legislature, under penalty of law, may not decide on the proposed amendment.

14. If Congress submits the proposed amendment to a State convention for approval, the State Governors shall arrange their conventions. To prevent the kinds of abuses known to occur when politicians draw political maps, each State’s convention districts shall be its counties, or equivalent. The Governor and each State convention must make efforts to insulate itself from machinations of the State legislature and, to ensure the integrity of the ratification of the amendment, 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 punishable by five years imprisonment.  No State or Federal government employee, which includes all elected officers except the delegates, may be a State convention delegate. Each State convention shall last fourteen days. Each State convention shall begin with the election of a secretary.  The State convention shall have approved the amendment only if at the end of fourteen days the secretary determines that the majority of the delegates approve the proposed amendment.  The Secretary shall give the results of the convention to Congress to tally.  Attempts of fraud by the secretary or the delegates shall be punishable by their respective State by five years imprisonment.  For the purpose of amendment approval, fraud must be determined by the State legislature within one month of the closing of the State convention.  If a State legislature determines that the fraud may have been sufficient to alter the outcome of the State convention, the State shall hold a repeat of the convention without the offending members present and with two weeks of verification.  If the repeated convention is fraudulent also, the process shall repeat until a non-fraudulent convention makes its decision and two weeks for verification have passed.  The proposed amendment may not be accepted into the Constitution until the verification time has passed after the last non-fraudulent State convention results are returned, unless the results of any outstanding repeated State conventions will not affect the decision by the States.

15. 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 type of 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 are 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.

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.

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.

The President of the Constitutional Court shall appoint and remove Justices at will.

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.

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.

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.

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.

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.

No Constitutional Court Justice may serve on the Court after reaching the natural age of 75.

The Constitutional Court shall have a high court, and a criminal court.  The high court shall act as judge on the Constitutionality of legislation and executive actions.  The criminal court shall act as judge for criminal abuses of the Constitution by persons.

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.

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.

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. 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 as long as the text does not attempt to affect the proposal.

1.  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. This applications assumes two conventions.  The first is a pre-convention to create the application.  This may be organized by any person or group.  For example, a State governor may call a pre-convention to address a common application for amendment and invite other States to send attendees.  If two thirds of the State legislatures approve of a common draft of the application, they send it to Congress as an application for a Convention from two thirds of the States.

Article V limits the ability of the possibly corrupt Federal government to decide whether the application is valid.  The Federal government may refuse an application if it requires the Federal government to act contrary to the Constitution.  The application cannot require Congress to use only one designated method for ratification, because Article V requires that Congress choose freely between the two ratification methods. It cannot deny Congress the ability to call the Convention.  It cannot deny Congress the ability to verify that the Convention produced the proposed amendment.  It cannot deny Congress the ability to verify the ratification or the tally of applying State legislatures.  It cannot require the President of the Judiciary to act in specific ways.  It cannot require the Convention to propose specific amendments, but an application can state beforehand the conditions a State legislature will use to determine whether to ratify the amendment. If the applying States determine that an abusive Federal government is acting in violation of the Constitution, the States may execute a reasonable remedy.  For example, if Congress refuses the call the Convention in a reasonable amount of time, the applying States may call the Convention themselves.  The terms of the Article V Convention are meant to permit the States to correct a possibly corrupt government.  If two thirds of the States formally approve the wording of a written application and send the single approved copy to Congress, it is a valid application.

3. The Framers understood the general cause of the problem of government that is being addressed in this application. The Federal government lacks sufficient enforcement of the Constitution on itself.  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 without scheduled times, 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 and obligations 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. That is too much like putting criminals in charge of a 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 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 constitutional 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 their Constitution freely and easily. 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 positive change into place.

4. By establishing a rule about what is bribery of a public official, this document begins to set the stage for the most important problem of 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.

5. This application can be placed in a legal wrapper and put through the States’ proper processes for making laws. Through this mechanism the State can formally 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. Congress can still elect the ratification method.  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.

6. 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. This way, if a time with more severe circumstance occurs, the people may refer to the precedents set in this first application as procedures for creating their application.

7. 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 the new office, basically a lesser constitution. The analysis of both tasks may affect the final wording of the amendment, so the wording of the amendment 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 that 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, it is assumed 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.

8. The delegates for the State convention must be selected before the national Convention can begin its proceedings.  This is necessary to prevent the action of selecting delegates from becoming a public referendum on the proposed amendment.  The reason for having a convention is to exercise the republican principle of bringing experts together to make decisions instead of having the majority of voters make decisions. The democratic principle would be to vote on ratification based on popular election, which would be similar to designing the technical architectural details of a bridge based on public vote instead of the special knowledge of trained engineers and architects.  If the delegates are selected after the proposal takes form, the selection of State convention delegates will be more of a democratic public vote on the proposal and less of a republican selection of qualified candidates.

9.  This application creates a semi-open Convention through the use of a guarantee by the the State legislatures that they will only ratify a proposed amendment if it meets certain clearly spelled out criteria.  Only one quarter plus one of the States need to make this guarantee for the guarantee to be in effect.  If Congress were to choose the State conventions to vote on ratification, the Convention will be an open Convention through the State conventions, not through the State legislatures.

A variation of this application can produce a prescribed Convention.  This can be done if the citizens electing the delegates to the State conventions only elect delegates who agree to approve the proposed amendment only if it meets the requirements in the application.  As with the guarantee of the State legislatures, this guarantee only needs to be made by the State conventions in one quarter plus one of the States to be in effect.

Of course, if one quarter plus one of the State legislatures did not make the guarantee, but one quarter plus one of the State conventions did, the Convention would also be a semi-open Convention, open through the State legislatures.  If neither group were to make the guarantee, the Convention would be fully open.

10, This application creates a wall of separation between the parties in the Convention process.  The separation creates a much needed system of balance of powers for the Convention process.  The pre-convention must consider this when drafting the application.

Article V establishes four distinct parties for the Convention:

The State legislatures, to apply and possibly vote on ratification.
The Federal legislature, to call the Convention and choose the method of ratification election.
The national Convention, to propose amendments.
The State conventions, to possibly vote on ratification.

Each party is distinct and separate from the others.  The national Convention is not controlled by the State or Federal legislatures, or the State conventions, otherwise it would not be distinct.  It would be an extension of the legislature or conventions. Likewise the State conventions must not be controlled by the legislatures, or the national Convention.  If one of the four parties were able to influence another, the parties would not be distinct.  That would defeat any purpose in having distinct parties.  The parties form a balance of powers, for the same reason the three branches in the Constitution.  Therefore, each of the four parties must be as free as possible from the influence of the others.  Legislator may not serve or otherwise be directly involved in the conventions.  Other officials from the State and Federal governments are poorly suited for the conventions for the same reasons.

Each of the parties provides some degree of checking on the Convention process.  The State legislatures ensure that a Convention is necessary and lays the initial groundwork for its beginnings.  Congress ensures that the appropriate number of States have made a credible application.  The Convention drafts the documents and does the necessary research, design and planning.  It attempts to ensure that the product desired by the State legislatures is produced.  Congress ensures that the Convention has produced the proposed amendment or amendments and that proper process was used.  Congress then selects either the State convention or the State legislature to decide on ratification.  If Congress believes anything is amiss in the State legislatures or conventions, Congress can choose the more credible method.  The ratifying authority verifies that the desired documents are produced, and sends them to Congress for amendment of the Constitution.  Congress verifies that the ratifying authority used proper process and that the required number of authorities approved the amendment.

The pre-convention must lay out the details of the process so that each of the parties is aware of its role, and that the process is credible.

11. This application appeals directly to the highest authority found in the God given 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 3 ——————  WORKING COPY ——————

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2 Comments

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2 responses to “Third draft of an application to create a US Constitutional Court

  1. In this draft I made a primary change in the assumptions of the application. The earlier drafts assumed that Congress has some authority in validating the applications. After doing some research, I find that assumption was incorrect. The Federal government only has very limited authority to validate the application. This is really an action has to be done by the States.

    If we had a form of government in which the criminals were in charge of the law, would it make sense to appeal to the criminals to determine whether applications for change are legitimate? Certainly not. You have to wrest control from the criminals, and force change on them. That is what Article V is about. So I changed the assumption that the Federal government had a role in validating the application. This is an action by the people through their States to force change upon a recalcitrant Federal government. That means that the States must have a process for validating the application, which means that some kind of pre-convention must be held.

    So I added the pre-convention to this process.

    I made a suggestion to split the Constitutional Court into a high court and a criminal court in this draft.

    Since the States are validating the application I removed the 25 year limit on the validity of the life of the application.

    In the list of governmental failures I added a paragraph addressing the line item veto. The line item veto by itself is probably not a good idea. It gives too much power to the President in drafting legislation. The Constitution empowers the President to veto writings from the legislature called “bills.” I addressed the real problem, which is the way the wise use of veto is worked around by Congress by combining bad laws with good laws in a single writing and calling it a single “bill.” Imagine that Congress put all the laws from a single year into one very large writing and calling it a “bill.” By doing that they would effectively and inappropriately destroy the power of veto. The current practice for making “bills” is a lesser version of that extreme, and as such it is inappropriate and abusive. The President does not have a proper power to do a line item veto, but he does have the proper power to veto individual laws contained in a bill.

    I removed the requirement that the States require by law that their Convention delegates only approve one specific proposal. The Convention is empowered by Article V to propose amendments. The States are not empowered to prevent the Convention from doing so, and interfering with the duties of the delegates in proposing applications would be an exercise of that inappropriate power. However, the States are free to decide whether to ratify for any reason the State chooses, and the States are free to declare before the Convention any or all conditions they will use to decide whether they will ratify. By exercising this power, the States can effectively direct the Convention. If the Convention produced a proposed amendment the State legislatures will not ratify, Congress can use the State convention method.

  2. Are these guys for real? This, from my google alerts for “article v”:

    “RESOLUTION OPPOSING A CONSTITUTIONAL CONVENTION …
    WHEREAS, Article V of the Constitution of the United States authorizes the convening of a. Convention for proposing Amendments, now frequently called a …

    The full text is as follows:

    RESOLUTION OPPOSING A CONSTITUTIONAL CONVENTION

    WHEREAS, Article V of the Constitution of the United States authorizes the convening of a Convention for proposing Amendments, now frequently called a Constitutional Convention, “on the application of the Legislatures of two thirds of the several States”; and,

    WHEREAS, the Constitution is silent as to the qualifications of the delegates to such a convention and how or by whom they should be selected; and, WHEREAS, the Constitution is also silent as to the agenda of such a Convention and sets out no way to limit the agenda of such a Convention, and,

    WHEREAS, former U.S. Supreme Court Chief Justice Warren Burger concluded that there is no effective way to limit or muzzle the actions of a Constitutional Convention after it is convened; and,

    WHEREAS, a Constitutional Convention would attract a multitude of individuals and special interest groups with agendas that would alter our Constitution beyond recognition; and,

    WHEREAS, well known Democrat members of the US Congress are currently advocating a Constitutional Convention to introduce a number of amendments that would enshrine and effectuate their liberal agenda; and
    WHEREAS, the Constitution of the United States is a timeless document which, by limiting the powers of the government it created and guaranteeing the freedom and opportunity of the citizens for whom it was created, has produced the best and most productive nation in the history
    of the world; now be it

    RESOLVED, that the Republican National Committee strongly opposes the convening of a convention for the purpose of proposing amendments to the Constitution of the United States for the reason that the risk of loss far exceeds the possibility of gain from such an uncontrolled and uncontrollable proceeding.
    –end of document–

    This is beyond stupid, it is tyrannical. Is the RNC really against the people exercising their Constitutional power to act to reform their government? Does the RNC really support this resolution, or is this just a draft of something someone stuck on their website? I have demonstrated in my application the fact that if the State legislatures and the State conventions each guarantee before submitting a proper application that they will only ratify a single specified amendment produced by the Convention, a prescribed amendment is not just possible, it is practical.

    I believed when I constructed this application that the greatest antagonism to it would come from the political right, not the left, because conservativism is by definition resistance to change.

    What this resolution illustrates is how the lack of a clearly laid out convention process is the greatest cause for the unwillingness of the people to use the convention to make the needed reforms the recalcitrant Federal politicians are unwilling to make. It demonstrates why the application I constructed is needed. It answers the problem of “Here there be dragons.” The unknown is now charted. The trail is blazed. My application lays out the path for amending the Constitution in a safe and controlled manner.

    … and doesn’t it take 3/4ths of the States approval to ratify any amendments anyway? As if that isn’t security enough.

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