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Monday, December 06, 2010


     Jerry Pournelle has said on occasion that what America needs is passing the equal protection section of the 14th Amendment again, exactly as it was written, but adding the words "And this time we mean it!"  and has said similar about the Xth Amendment whuich reads
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people"
    This appears to quite unambiguously limit the power of the Federal government but current Supreme Court interpretations have claimed to find the Constitution to be a "living document" containing all sorts of powers (from the ability to control of drugs to the enforcement of environmental, state decisions onn same sex marriage and, of course medical care) which the founders never wrote into it.

       Part of this is popular acceptance of a growth in government power which cannot & arguably should not be ignored. But part of it is that there is no negative feedback system above the Supreme Court pressing it not to extend these powers. I propose a "Enforcement of Amendment X Amendment.
At the petition of the legislatures of 15% of states or of 15% of electors, but not more than once in a calendar year, that a Supreme Court decision has wrongly claimed to find a power for the Federal government not authorised under Amendment X the Electoral College shall be convened. If they confirm this opinion they shall remove the longest serving member of the court who supported this judgement.
Note that the power given here is very limited. It does not authorise the college to overturn the Court but merely to remove 1 member. If the court, with a new member are of the same opinion the law will not be changed. This is deliberate because the purpose of a Constitution is not to be revolutionary but to provide stability & some pressure in defence of freedoms. All that will happen is that the judges will not lightly extend government power & feel some encouragement to reduce it. It would likely take decades before a major change of direction was visible but it would be all the more secure for that.

Giving this power to the Electoral College may seem strange. It is because this means not giving it to the Congress or President. An example of separation of powers. I could have proposed a new body but that would have meant even more government. The founders did intend the Electoral College to be a significant organ of government but it has withered to a vestigial remnant as Presidential elections have become fully democratic. This would breathe some life into it

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The living document argument is facile in the extreme. Imagine this; "Yes, darling but my marriage vows were taken in 1997, pre internet dating, I see them as a living document, surely you can't object to my internet infidelity as I could not reasonably foresee internet dating"

I will perhaps leave it to others to try that argument with Mrs F.

Similarly "yes officer but the 70mph speed limit was set in the 1970's when we were all driving cars with drum brakes an no air bags or crash protection, surely that provision is no longer valid, the law is a living document"

Again, I would not fancy your chances.

I can hardly watch the presidential inaguration when they swear to protect and defend the constitution because to be honest, they haven't really been doing that since Lincoln.
Is there any way to interpret this differently from the plain text of the CotUSoA:

"The powers not explicitly delegated to the United States by the Constitution, nor explicitly prohibited by it to the States, are explicitly reserved to the States respectively, or to the people"

They can make the living argument only supposing "implicit" meaning in the Constitution.
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