The Fair Construction Amendment

    Section 1:  The Judiciary of the United States shall not presume to exercise nonjudicial power.

    This Constitution is changed only by an explicit and authentic act of the whole people. The sense in which it was accepted and ratified by the nation shall be the guide in expounding it, precedents to the contrary notwithstanding. Its provisions are neither to be restricted into insignificance nor extended beyond the natural and obvious meaning contemplated by the plain understanding of the people at the time of its adoption. Any faults it may contain are to be corrected by amendment as prescribed in Article V, not by usurpation.

    Disregard of these principles is cause for impeachment.

    Section 2:  No one in the United States shall be either subject to or entitled to discrimination in education, employment, housing, or public accommodations on account of race.

    The Congress shall have power to enforce this section by appropriate legislation.

    Section 3:  The provisions of this Constitution’s first article of amendment shall apply to the states as well as to the United States; but in every other respect, they shall be expounded according to the rules set forth in Section 1 of this article.

    Section 4:  So that the perpetrators of violent crimes may meet with swift and certain retribution, the courts’ effort to protect them in their rights shall not be perverted into permitting any mere technicality to avert or delay their punishment. Rules governing law enforcement shall be so designed as to protect the individual without imposing a disproportionate loss of protection on society.

    Section 5:  The Congress shall have power to … 

This amendment instructs the justices to treat their task as Marshall did, and as his contemporaries thought they should: as interpretation of an historical document, not husbandry of a “growing, evolving” one. Its intended effect is to restore the people’s right of self-government on those issues — school prayer, the death penalty, pornography, homosexuality, abortion, etc. — where their views have more in common with those of the framers than with those of today’s judicial mandarins. It is, literally, the status quo ante amendment to end all status quo ante amendments.

If any of the phrases in Section 1 sound familiar, it's because they're lifted from the writings of John Marshall, James Madison, Thomas Jefferson, Alexander Hamilton and George Washington. Click on their names or on the various words of the section to find chapter and verse.

The additional sections are needed to ratify those changes the courts made for us that we should have made for ourselves (e.g., the overthrow of Jim Crow segregation), and — if the amendment is to have a chance of success — to give proper constitutional authority to a great deal of what the federal government is now doing (Social Security, Medicare, the Federal Reserve, national parks, disaster relief, etc., etc., etc.). Section 5 addresses that latter challenge, by taking on the enumerated-powers/implied-powers conundrum — the main point on which the founding generation disagreed. Left open-ended here, the section would need to be drafted in such a way as to fill out the powers of Congress to meet the demands of the modern era, but without destroying all limits on federal powers.

Section 3 offers a way to respect the expectations of those who have come to look upon the federal courts as the ultimate guardians of their most basic rights, while tethering the definition of those rights to something more solid than five justices’ fancy.

Section 4 gives the courts a bit of much-needed guidance on law enforcement issues, drawing on the words of Theodore Roosevelt and Benjamin Cardozo, with an assist from C.S. Lewis and Désiré Cardinal Mercier.

Devising an amendment such as this and getting it past the furious opposition of the liberal elite would be a lot of trouble. But at the end of it all, we'd have the advantage of practicing actual self-government, instead of bowing to the dictates of judicial activists whose interpretations of the Constitution bear less and less relation to its original, true, ratified meaning.



The book that makes the case for a Fair Construction Amendment



Copyright © 2005 by Karl Spence. All rights reserved.
Revised: 10/10/11 20:58:06 -0500.