You've probably seen me post this on several other AMA threads; now it's your turn. I have drafted a proposal for a constitutional amendment and would like your reaction, as you've probably seen me ask several others. Would you support or oppose this?
Below is a summary of the proposal, not the full draft. My proposal has a Preamble and four sections. The Preamble begins with a two-paragraph-long quotation from Justice James Iredell in the 1798 case of
Calder v. Bull, then the Preamble concludes: "The purpose of this article of the US Constitution is to give three previous amendments greater clarity and precision. The United States government and the respective states should have clear and precise guidelines about their legislative powers. This article will clarify two amendments that are binding on the United States, and it replaces a part of the Fourteenth Amendment, which is binding on the states."
Section 1: The Due Process Clause of the Fifth Amendment shall henceforth be understood to only mean
procedural due process, not
substantive due process. In other words, government must not punish anyone without affording that person fair procedures, but the courts are not to second-guess the merits of the laws being enforced. But the federal government does have to treat everyone equally, the same way the states have to according to Section 3(b) of my proposal
Section 2: The Ninth Amendment is only binding on the federal government, not on the states. The purpose of the Ninth was and is parallel to the Tenth Amendment.
Section 3: The second sentence of Section 1 of the Fourteenth Amendment is hereby repealed and that sentence will be replaced with a new set of rules designed to be narrower and clearer.
3(a) The states have to obey enumerated rights in the first eight amendments, but the only unenumerated right that states have to obey is the right to interstate travel. The Supreme Court has twice said "Our obligation is to define the liberty of all, ..." but my proposal tells the Court, and the rest of the country, that statement was completely incorrect. The federal judiciary has neither an obligation nor a prerogative to define liberty. The judiciary's obligation is to expound on the rights that are in the Constitution, not to expand them. The federal judiciary is instructed to stop declaring that states have to obey "fundamental rights" and "basic civil rights" that are not in the Constitution (again, with the one exception being the right to interstate travel). Therefore the Court's decisions about contraceptives, sodomy, and any other libertarian ideas not enumerated in the Bill of Rights, no matter how controversial or uncontroversial, will all be overturned.
3(b) The states are not allowed to discriminate against anyone on the basis of race, national origin, sex, gender identity, sexual orientation, or disability status (and because of Section 1 above, the same will go for the federal government). Other than those six kinds of discrimination, all other kinds of discrimination are allowed. The rulings made by federal courts in 2013-2015 about same-sex marriage will be preserved. There will be no such thing as a "fundamental right to marry," but bans on interracial marriage and same-sex marriage will still be unconstitutional.
3(c) The states still have to respect voting rights as established in nearly all precedents the Supreme Court has laid down on that subject so far. In order to prevent gerrymandering of congressional or state legislative districts, redistricting must be done by independent redistricting commissions.
Section 4:
Bush v. Gore was the worst decision the Supreme Court has ever rendered, and nothing like it must ever occur again.
(Thanks to an intriguing conversation I had a while ago with user Big Abraham, I thought of another way to accomplish the same goal with a different kind of structure. I could say, in Section 3, that only the Equal Protection Clause of Section 1 of the 14th is repealed; I could leave the Privileges or Immunities Clause and the Due Process Clause as they are. I would insert the DP Clause of the 14th into Section 1 where I discussed giving the first DP Clause a meaning that is more limited than the way the Court actually interprets the two clauses. I could say, in Section 3(a), that the Privileges or Immunities Clause has always been interpreted by the Court correctly thus far, but that the meaning of P/I should never be expanded. The net result of those changes would still give me the exact same goal as I was aiming for in my first draft. Going with either draft for this proposal is, for me, six of one, half dozen of another.)
Here is a way I have thought of explaining the potential political appeal of my proposal. I carefully designed my proposal to be a compromise between liberal and conservative points of view. Some specific elements will be appealing to conservatives but very much unappealing to liberals, while other elements will be appealing to liberals but very much unappealing to conservatives. Both sides will be giving up something important that they don't want to give up, but will get something else important in return.
Specific elements appealing to conservatives but repulsive to liberals.
– Keep the
McDonald v. City of Chicago precedent
– Prevent
Roe v. Wade and/or
Planned Parenthood v. Casey from ever being reinstated
– Overturn
Plyler v. Doe – Prevent the federal courts from expanding the meaning of the Equal Protection Clause in any way other than what is enumerated in this proposal
Specific elements appealing to liberals but repulsive to conservatives.
- Disallow government to discriminate on the basis on sex, in other words, the same principle as the ERA (this shall not mean, however, any effective revival of the right to abortion)
– Disallow government to discriminate on the basis of sexual orientation, and with this rule, preserve
Obergefell v. Hodges – Disallow government to discriminate on the basis of gender identity (applying the
Intermediate Scrutiny standard, which will also be applied for sex and sexual orientation, above)
– Condemn the
Bush v. Gore decision
Agreeable to both conservatives and liberals.
– Continue imposing the Bill of Rights on the states
– Continue protecting the equal right of all citizens to vote
– Continue prohibiting government discrimination based on race and national origin
– Start prohibiting government discrimination based on disability status (using J. P. Stevens' balancing test as the guiding method of legal analysis)
– Require redistricting to be done by independent commissions
If you have any questions about the details in my proposal, I'd be happy to answer them.
So, are you interested in supporting this?
