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A Proposed Constitutional Amendment to Restore Power to the People

Do you support the Amendment as written in the OP?

  • I support the Amendment as written in the OP

    Votes: 6 15.0%

  • I support part of the Amendment as written in the OP and will explain.

    Votes: 4 10.0%

  • I reject the Amendment as written in the OP and will explain.

    Votes: 27 67.5%

  • Other and I will explain in my post.

    Votes: 3 7.5%
  • Total voters
    40
AlbqOwl said:
Yes, neither the states nor anybody else would have authority to disregard or nullify any part of the existing Constitution. But if this amendment was enacted, then neither the courts nor the legislature would have authority to disregard or nullify any part of the existing Constitution and if they overstepped their authority, the states would not have to comply.
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Technically they shouldn't have to comply now.
 
American said:
Technically they shouldn't have to comply now.
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That is precisely what Michelsen is arguing. His amendment would be to restrain retaliation from errant government forces who would resist unconstitutional law.
 
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AlbqOwl said:
As do many of us, citizen Warren Michelsen, believes all branches--executive, legislative, and judicial--of the U.S. federal government have overstepped their constitutional authority, he proposes that the American people move to restore the power to self govern that the Constitution originally intended.

A recent Harris poll suggests a majority of Americans agree with him:
Supreme Court | SCOTUS | lifetime appointment | Harris

He has provided an in depth, lengthy and well thought out argument to support his opinion here:
Amending the Constitution

His basic thesis is that five out of nine Supreme Court justices should not have the uncontested power to determine the fate or destiny of all the people, nor should the federal government at any level have the sole power to judge the legality of government action at any level.

What he proposes:

Amendment to the Constitution of the United States proposed to restore power to the people:
​
​
​

Section 1. When the number of states exceeding twenty-five percent of all the United States shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that enactment shall, in whole, be declared invalid and no court may thereafter enforce its provisions.

Section 2. When any state shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that state may, at its option, prohibit enforcement of that enactment within its borders.

Section 3. Every Bill which shall be considered by the House of Representatives or the Senate, shall, before it come to a vote, be subjected to scrutiny so as to ascertain that said Bill is not in conflict with this Constitution. Whenever one third of either House shall find the Bill to be in conflict, it shall require that three quarters of that House vote Yea before the Bill be considered passed.​


The OP at this time is not ready to declare an opinion on whether Michelsen is right in part or in whole about that, but rather would throws it open for consideration, evaluation, and discussion. (Disclosure: This discussion has been offered at a different site in addition to this one as an experiment.)

QUESTION TO BE DISCUSSED:

Do you or do you not wholly or in part support Michelsen's proposed Amendment as written to limit the power of government and return that power to the people? Why or why not.?
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I don't think anyone would move from the principle of majority to that of a minority in any serious discussion on democratic practices.

Tim-
 
American said:
Hold on a minute. Where in this amendment does it invalidate another amendment? It says legislative enactments, not clauses in the Constitution. You can invalidate a part of the Constitution without an amendment specifically repealing that part. Now I'm not supporting this amendment yet, because it appears to have issues, but I have yet to see where it affects anything except laws.
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They wouldn't invalidate the 2nd Amendment literally, just in practice by rejecting the Court's view of it and using their own interpretation.
 
AlbqOwl said:
The judiciary was intended to be arbiter and referee to settle disagreements or conflicts between opposing persons, groups, states, etc. within the scope of the existing law. The groups going into that process expected to abide by the decision of the court. But the court itself could be sued if it stepped outside its jurisdiction and authority or stepped outside the original intent of the Constitution. If a challenged law did not meet the requirements of the Constitution, it was returned to the legislature to fix it. Power was not given to the court to rewrite the law according to how a majority of the court thought the law should be written. The court was not intended to have legislative authority of any kind.
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Well yes, but if any given legislative product is deemed defective by the court, it is defective, it is null and void.

The trouble with today's system is that unless some individual or group is wealthy enough to bring suit against a defective act, the act will stand as legit.

So I say again, judicial review is a legitimate function of the judiciary, perhaps the primary function. Why should there even BE a judicial branch if it does not have the power to review and judge the laws created?
 
Section 1. 25% is far too low a bar for a law to be abandoned. If it said 51% of the states I'd support it.

Section 2 essentially eviscerates the Union. I don't like it at all.

As for Section 3 I like it in theory I'm just not sure how you implement in a workable way. In truth Congress as a normal part of business should be insuring that it believes it's passing Constitutional legislation and the President should only being signing that he is sure is Constitutional. The President has a Constitutional duty to only sign legislation he's sure is Constitutional.

Much Federal overreach can be tied to abuses of the Commerce Clause. Perhaps a Constitutional amendment that defined the Commerce Clause in a way that brings it back to it's intended function would be a better way to go.
 
Henry David said:
Well yes, but if any given legislative product is deemed defective by the court, it is defective, it is null and void.

The trouble with today's system is that unless some individual or group is wealthy enough to bring suit against a defective act, the act will stand as legit.

So I say again, judicial review is a legitimate function of the judiciary, perhaps the primary function. Why should there even BE a judicial branch if it does not have the power to review and judge the laws created?
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I agree with the judiciary having the power to review a law for constitutional compliance for an appropriate question of law but each case should stand on its own merit. Meaning that the judiciary should not have the power to nullify/invalidate a law or any part of it. If anything, the judiciary should have the power to return a law (or a portion) back to the legislature for amendment upon finding that it fails compliance. As things stand today, the judiciary is the equivalent of a super legislature and that was never the intent of the founders.
 
Henry David said:
Well yes, but if any given legislative product is deemed defective by the court, it is defective, it is null and void.

The trouble with today's system is that unless some individual or group is wealthy enough to bring suit against a defective act, the act will stand as legit.

So I say again, judicial review is a legitimate function of the judiciary, perhaps the primary function. Why should there even BE a judicial branch if it does not have the power to review and judge the laws created?
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Again you need the courts to be arbiter and settle disputes. It should not be the prerogative of the courts to dictate what the law of the land has to be. That is the Legislatures job. When there is a dispute we can certainly ask the courts to rule on which side has the better argument, but the court's ruling should not change the law. It should prompt the Legislature to rethink it and rewrite it. And if it does not, then Michelsen's recommended amendment gives the states and people legal means to not be bound by unconstitutional laws, rules, and regs.
 
Bob0627 said:
I agree with the judiciary having the power to review a law for constitutional compliance for an appropriate question of law but each case should stand on its own merit. Meaning that the judiciary should not have the power to nullify/invalidate a law or any part of it. If anything, the judiciary should have the power to return a law (or a portion) back to the legislature for amendment upon finding that it fails compliance. As things stand today, the judiciary is the equivalent of a super legislature and that was never the intent of the founders.
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I disagree that the judiciary resembles a super legislature. IMO that is an inaccurate assessment, and to one degree or another, fear-mongering.

From the logical point of view, if any part of a story is untrue, then technically the whole story is untrue.

I'm not a lawyer, but I think a similar comparison could be made of the legislative product, the law. Using the patriot act as an example, if Section 215 is fatally flawed, then the entire act is flawed.

If not to point out the errors of the legislative product, why did the founders include a judiciary? Why do we even need a judiciary if when they nullify bad law they are called a legislature? It's madness to claim that the judiciary is wrong to call out bad law, which in this day and age it seldom does.

Further, what is the remedy you see for this error you perceive? How should things be changed? IMO amending the USC is not necessary. Though I admit what I see as a remedy is all 3 branches being honest, a pipe dream if there ever was.
 
AlbqOwl said:
Again you need the courts to be arbiter and settle disputes. It should not be the prerogative of the courts to dictate what the law of the land has to be. That is the Legislatures job. When there is a dispute we can certainly ask the courts to rule on which side has the better argument, but the court's ruling should not change the law. It should prompt the Legislature to rethink it and rewrite it. And if it does not, then Michelsen's recommended amendment gives the states and people legal means to not be bound by unconstitutional laws, rules, and regs.
Click to expand...

In an ideal under our system, when the legislature writes poor law and the judiciary points that out, the logical remedy is repeal of that law. We saw that practice in action when the 18th Amendment was repealed by the 21st, and that happened without any essential input from the judiciary.

But when the judiciary does declare a law invalid, the legislature has the option to do nothing at all, or to go back and correct the errors of its original effort.
 
Absolutely not. States do not get to declare that judicial rulings protecting people's constitutional rights are invalid. If this were in place, we'd still have Jim Crow laws, bans on interracial marriage, poll taxes, and criminalized homosexuality. We probably wouldn't have incorporation of the bill of rights at all in some states, including protections against self-incrimination and what little fourth amendment protections we have left.

Whatever fear you might have of federal tyranny, ensuring state tyranny is absolutely not the cure.

And that's just the judicial bit. Let's talk about the incredible crippling this would produce in the legislature. Remember that do-nothing congress we had so recently? That will be constant. With another level of obstruction, we'll never get anything done. And having state government vetoing everything the president does? You know that the president is doing stuff constantly. That would be hundreds of actions every day that state governments will be picking and choosing from. That means a 25% minority gets to cripple a president that won a majority of the country's votes.

So, the result of this idea is that states can violate people's constitutional rights, and that the federal government would basically shut down. What a stupid idea.
 
Henry David said:
In an ideal under our system, when the legislature writes poor law and the judiciary points that out, the logical remedy is repeal of that law. We saw that practice in action when the 18th Amendment was repealed by the 21st, and that happened without any essential input from the judiciary.

But when the judiciary does declare a law invalid, the legislature has the option to do nothing at all, or to go back and correct the errors of its original effort.
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But these days it seems the High Court itself rewrites the law as the Court thinks it should be. And that then becomes the law. And that, IMO, is not what the Founders intended the authority of the High Court to be.
 
Henry David said:
I disagree that the judiciary resembles a super legislature. IMO that is an inaccurate assessment, and to one degree or another, fear-mongering.
Click to expand...

Sorry but the purpose of the judiciary is to settle disputes in questions of law, not to validate or invalidate laws. The judiciary can decide if a law or part of a law is not constitutionally compliant with reference to a specific case and therefore determine that a law is not being violated because it is defective (and therefore void). But it should not have the power to invalidate the law itself, that would be legislating and/or overriding legislation, a power reserved for and the domain of Congress. As to fear-mongering, the SCOTUS is as corrupt as the rest of the US government and often makes decisions that make no sense but serves special interests (read corporate puppets). So if that's fear-mongering, so be it, it is reality.
 
Bob0627 said:
I agree with the judiciary having the power to review a law for constitutional compliance for an appropriate question of law but each case should stand on its own merit. Meaning that the judiciary should not have the power to nullify/invalidate a law or any part of it. If anything, the judiciary should have the power to return a law (or a portion) back to the legislature for amendment upon finding that it fails compliance. As things stand today, the judiciary is the equivalent of a super legislature and that was never the intent of the founders.
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The legislature always has had the option to fix flaws in legislation found Unconstitutional.
 
AlbqOwl said:
As do many of us, citizen Warren Michelsen, believes all branches--executive, legislative, and judicial--of the U.S. federal government have overstepped their constitutional authority, he proposes that the American people move to restore the power to self govern that the Constitution originally intended.

A recent Harris poll suggests a majority of Americans agree with him:
Supreme Court | SCOTUS | lifetime appointment | Harris

He has provided an in depth, lengthy and well thought out argument to support his opinion here:
Amending the Constitution

His basic thesis is that five out of nine Supreme Court justices should not have the uncontested power to determine the fate or destiny of all the people, nor should the federal government at any level have the sole power to judge the legality of government action at any level.

What he proposes:

Amendment to the Constitution of the United States proposed to restore power to the people:
​
​
​

Section 1. When the number of states exceeding twenty-five percent of all the United States shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that enactment shall, in whole, be declared invalid and no court may thereafter enforce its provisions.

Section 2. When any state shall have declared any enactment of the Legislative, Executive or Judicial branch to be in violation of this Constitution, that state may, at its option, prohibit enforcement of that enactment within its borders.

Section 3. Every Bill which shall be considered by the House of Representatives or the Senate, shall, before it come to a vote, be subjected to scrutiny so as to ascertain that said Bill is not in conflict with this Constitution. Whenever one third of either House shall find the Bill to be in conflict, it shall require that three quarters of that House vote Yea before the Bill be considered passed.​


The OP at this time is not ready to declare an opinion on whether Michelsen is right in part or in whole about that, but rather would throws it open for consideration, evaluation, and discussion. (Disclosure: This discussion has been offered at a different site in addition to this one as an experiment.)

QUESTION TO BE DISCUSSED:

Do you or do you not wholly or in part support Michelsen's proposed Amendment as written to limit the power of government and return that power to the people? Why or why not.?
Click to expand...

So in summary: "Boo hoo, I didn't want the Supreme Court to give gays equal rights! Let's make an amendment!"
 
AlbqOwl said:
Do you or do you not wholly or in part support Michelsen's proposed Amendment as written to limit the power of government and return that power to the people?
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No for a number of reasons, but mostly because it does nothing to limit the power of government and give it to 'the people' instead. It just takes power away from the federal government and gives it to the state governments.
 
AlbqOwl said:
Correct. A razor thin majority--one easily obtained via bribe or extortion--would no longer be able to dictate the fate of all
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No, instead a much smaller minority, even more easily obtained via bribe or extortion, would be able to dictate the fate of all.
 
Gaius46 said:
The legislature always has had the option to fix flaws in legislation found Unconstitutional.
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Of course they did and they do but they never will unless the judiciary (or some other authority) points out that the legislation is flawed. Congress had to have passed the flawed legislation in the first place.
 
Bob0627 said:
Of course they did and they do but they never will unless the judiciary (or some other authority) points out that the legislation is flawed. Congress had to have passed the flawed legislation in the first place.
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It's one of features of our legal system that a law can't be challenged until it's actually put into effect and harms someone. One of the lawyers on the board could probably give a good reason for that - I assume it probably has something to do with the fact that it's the way the law is applied that really matters and you obviously can't know that until it's actually being used. It would be nice though if the SC could tell Congress up front - this is plainly unconstitutional so you shouldn't waste your time with trying to pass it - but I don't think we're ever going to see that happen.
 
RabidAlpaca said:
So in summary: "Boo hoo, I didn't want the Supreme Court to give gays equal rights! Let's make an amendment!"
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Michelsen made his proposal long before the SCOTUS ruling on gay marriage. There is nothing in his proposal re gay rights. Think red herring anybody? Straw man? Is it possible to have a civil discussion about anything these days without being accused of being homophobic, racist, sexist or some other -ist?
 
molten_dragon said:
No for a number of reasons, but mostly because it does nothing to limit the power of government and give it to 'the people' instead. It just takes power away from the federal government and gives it to the state governments.
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That is precisely what it does and is intended to do. Which returns the power to the people as the Constitution intended them to have.
 
molten_dragon said:
No, instead a much smaller minority, even more easily obtained via bribe or extortion, would be able to dictate the fate of all.
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How so? How does giving people the power to reject unconstitutional law take anything away from you?
 
RabidAlpaca said:
So in summary: "Boo hoo, I didn't want the Supreme Court to give gays equal rights! Let's make an amendment!"
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I think it is more a question of protecting the rights other citizens, than wanting to withhold equal rights from homosexuals. I., for instance, couldn't care less, what people happily do together. But I do care about giving up money for useless activity. And, though I am not religious, even more I care about the government infringing on Constitutional covenants to protect citizens from persecution by a majority. It is that protection and those rights that this country was made for and that made it strong. It is why dictatorships and organizations like isis hate us.
 
iguanaman said:
Government exists in part to protect minorities, and this sham would make each State a country in effect something that was correctly rejected by our founders. Not only that it would gridlock the Federal Govt. into collapse which I suspect is the motive.
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Umm...actually our Founders did not reject State Sovereignty. At the Founding of the US each State WAS considered it's own sovereign territory. IE: A country. The only reason that they created the Federal government was for general welfare and peace between each state because by themselves they could not hope to match the power of ANY other country...much less the British yoke that they just threw off. It was the combined might of the 13 colonies (with some French help) that won the Revolutionary war. Not each individual territory. The Founders would actually be appalled at what the US has become when it comes to how the States vs the Federal Government works. Anyone that says different does NOT know their history.
 
AlbqOwl said:
Again you need the courts to be arbiter and settle disputes. It should not be the prerogative of the courts to dictate what the law of the land has to be. That is the Legislatures job. When there is a dispute we can certainly ask the courts to rule on which side has the better argument, but the court's ruling should not change the law. It should prompt the Legislature to rethink it and rewrite it. And if it does not, then Michelsen's recommended amendment gives the states and people legal means to not be bound by unconstitutional laws, rules, and regs.
Click to expand...

Few things.

SCOTUS was always meant to judge the laws to make sure that they were inline with the Constitution. You can see this if you read up on the notes when the Constitution was being made and by various letters. 15 of the delegates at the time of the writing of the Constitution talked about Judicial Review. Out of those 15 only two disagreed with the idea. Everyone else was silent on it. Historians have also shown where the courts used Judicial Review in cases before Marbury v Madison (ex:1796, Hylton v. United States). Marbury v Madison just happened to be the most famous because it was specifically about judicial review.

Here's a good place to start reading up on it. Wiki ~ Judicial review in the United States

Next, the courts do not make any laws. They strike down laws or parts of laws. There is nothing saying that Congress/Senate cannot retake up the issue and rewrite X law to where it IS Constitutional. I know that people love to think that Congress cannot do this, and I don't know where they get this idea from honestly, but the fact is they can.

The thing is that without Judicial Review the US would more than likely still have things like miscegenation laws still in effect.
 
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