The Amendment Procedure of the Constitution
Judicial review and the amendment procedure.
Changes in the Constitution made by the Supreme Court under the doctrine of judicial review should be considered in the light of the amendment procedure carefully designed by the Framers.
Such examination highlights the inappropriate and unconstitutional nature of the modem changed doctrine of judicial review and shows the bootstrap nature of the Supreme Court's actions. The Supreme Court expands its own authority by adopting an unconstitutional concept, and then uses that unconstitutional concept as authority for further unconstitutional actions.
The Framers' concern about the amendment procedure.
In many documents the procedure for amendment consists of a single sentence or a few brief sentences found as a part of an article covering miscellaneous matters.
But the amendment procedure of the Constitution is different. Although the Constitution is a fairly short document, consisting of only seven articles, one of those seven articles is devoted entirely to the amendment procedure.
The detailed attention the Framers gave to the amendment procedure arose out of widespread dissatisfaction with the amendment provisions of the Articles of Confederation. Although many people recognized that the Articles of Confederation needed to be changed, the specified amendment procedure was too rigorous and caused serious problems because of the substantial impossibility of making needed changes.
In fact, what had triggered the calling of the Constitutional Convention (although it was not called that at the time) was a monetary panic that occurred in 1786. The Framers did not want future generations to be subjected to such an extreme situation because of an inadequate amendment procedure.
Another reason the Framers were anxious to develop a carefully thought out amendment procedure was that a major problem they faced in the Constitutional Convention involved how to change the Articles of Confederation when there was no adequate procedure for doing so. [p. 21]
The amendment procedure the Framers believed to be appropriate.
The Framers recognized that flaws might be discovered in what they had done, and that the need for other changes might arise with the passage of time. They felt that an appropriate amendment procedure should be included that would facilitate making changes that might be needed for either reason.
But they also recognized that the Constitution would represent the general agreement of the people as to the nature of the government they were to live under so that it was to be much more permanent and stable than a law that might be adopted and repealed in the ordinary course of operation of the government. In fact, they believed that a change in the Constitution should not be made by those in charge of current operation of the government, but required going back to the people by one method or another to obtain a new general consensus or agreement.
They were also concerned with practical politics and recognized that if the power to initiate amendments were vested solely in the federal government, that power might not be exercised to initiate changes desired by the states. On the other hand if that power were vested in the states, it might not be exercised to initiate changes desired by the federal government.
The amendment procedure of the Constitution.
The amendment procedure therefore includes provisions for amendments being initiated by either the states or the federal government in either case by a two thirds majority. But for proposed amendments to be adopted the general consensus of the people must be manifested by such proposed amendments being ratified by three fourths of the states. Ratification can be by state legislatures or by conventions.
Can't take law into own hands without breaking it.
The expression "You can't take the law into your own hands without breaking it" seems to me to be especially apt in the context of the Supreme Court changing the Constitution.
The significance of the expression, of course, lies in the double meaning of breaking the law.
When a person takes the law into his own hands, he breaks the law in the sense of engaging in conduct contrary to that mandated by the law.
In addition, when a person takes the law into his own hands, he undermines the law in the sense of the legal system by establishing a precedent of disregard for the law on future occasions. [p. 22]
When the Supreme Court ignores the amendment procedure set forth in the Constitution and changes the Constitution on its own, it does more than just violate the Constitution. It also undermines the Constitution by establishing a precedent for itself exercising compulsory authority the Constitution has withheld not only from the Supreme Court, but from all branches of the federal government combined.
Taking the law into one's own hands, which is what the Supreme Court does when it amends the Constitution in violation of the amendment procedure, can also be described by the word "usurpation." That is the word George Washington used in his Farewell Address containing his advice to future generations. He said:
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield.
Comparison with purported amendment by treaty highlights Supreme Court's usurpation.
In the context of constitutional changes made by the Supreme Court, it seems appropriate to examine the argument sometimes seriously made that the Constitution can be amended by a treaty since Article VI of the Constitution includes the following words:
All Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land.
This argument is most often made in connection with agreements involving the United Nations and various other compacts under which nations purport to submit themselves and their people to penalties for violations of new concepts of international law. Such treaty type arrangements sometimes include surrender of a portion of the sovereignty of the United States and may subject our people to trial procedures that do not meet the standards of fairness guaranteed by our Bill of Rights, and may violate other provisions of our Constitution.
The argument goes something like this. While the requirements of such treaties may be incompatible with the provisions of our Constitution, they are nevertheless binding because once a treaty is made and ratified by our Senate it becomes the supreme law of the land. Since ratified treaties must be recognized as the supreme law of the land, they in [p. 23] effect amend the Constitution to the extent provisions of the Constitution are incompatible with them.
Meaning is clarified by context.
While it seems reasonably obvious that such an interpretation is not what the Framers intended, particularly in view of the great care they took in designing the amendment procedure to be sure ratification of amendments was by general consensus, the words quoted above when read by themselves do seem susceptible to the interpretation that treaties can amend the Constitution.
However, the entire clause is all one sentence. The words quoted are lifted out of the middle of the sentence and have an entirely different meaning when read in context.
Here is the actual text of the second clause of Article VI of the Constitution. This is the part of the Constitution that is sometimes called the supremacy clause.
This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution of Laws of any State to the Contrary notwithstanding.
What that single sentence says is essentially this.
1. The Constitution itself, federal laws that are constitutional (because within the limited scope of the powers granted to the federal government) and treaties (which cannot be made by the individual states) are the supreme law of the land.
2. The meaning of the term "supreme law of the land" is that state court judges are bound to enforce laws falling under that category even though they may be contrary to provisions of state constitutions or state laws.
Thus from reading the context, it becomes clear that the supremacy is only over state constitutions and state laws; but, not over the United States Constitution or federal laws that are in harmony with the limitations of the United States Constitution.
When we examine the actual wording of the sentence in which the supremacy clause appears, we find that the argument that the supremacy clause authorizes amendment of the Constitution by treaty loses its plausibility because the Constitution simply does not say that treaties are superior to the Constitution. The status of treaties in relation to the Constitution will be discussed in the next section. [p. 24]
Executive and legislative usurpation.
Just as it is usurpation for the Supreme Court to change the Constitution under the doctrine of judicial review, it is also usurpation to change the Constitution under the guise of a treaty negotiated by the President and ratified by the Senate.
Under the Framers' Constitution the powers of federal officials are limited to those granted in the Constitution.
While the President and the Senate are granted the power to make treaties, they are not granted the power to amend the Constitution. Thus they can make ordinary treaties such as those having to do with commerce or fishing rights, but that power cannot be validly used to indirectly amend the Constitution.
The Constitution provides that adoption of a valid amendment involves compliance with the following steps:
1. Initiation by two thirds of both Houses of Congress or the legislatures of two thirds of the states.
2. Ratification by legislatures or conventions in three fourths of the states.
For a treaty to have the effect of validly amending the Constitution it would have to be (1) approved by two thirds of both Houses of Congress and (2) ratified by the legislatures of three fourths of the states, or conventions in three fourths of the states.
Thus, while an ordinary treaty that does not purport to change the Constitution can be adopted by the President and the Senate, an extraordinary treaty that changes the Constitution cannot be so adopted.
An example of such an invalid extraordinary treaty would be one that surrenders a portion of our sovereignty to an international organization. Such a Constitution changing treaty cannot be validly adopted by the President and the Senate, or even by the entire federal government combined.
For further discussion of the extent of the treaty power and worthwhile quotations, see pages 134-136 of The Elders of Israel and the Constitution by Jerome Horowitz.
Comparison with Supreme Court usurpation.
The amendment procedure of the Constitution makes clear that a valid amendment cannot be adopted without obtaining the consensus of the people through ratification by legislatures or conventions in three fourths of the states. [p. 25]
Even the President and the Senate acting together can't amend the Constitution under the treaty power. Their lack of authority to do so, even if they also obtain the approval of the House of Representatives, emphasizes the fact that the Constitution cannot be validly amended at the federal level alone.
The requirement of approval of a proposed amendment by the people's representatives in three fourths of the states highlights the Supreme Court's arrogant usurpation in repeatedly amending the Constitution itself without the approval of any group of the people's representatives.
"They had altered . . . the laws of Mosiah . . . which the Lord commanded him to give unto the people; and . . . their laws had become corrupted." (Helaman 4:22)
The arrogance of the Supreme Court in presuming to change the Constitution in violation of the amendment procedure is illuminated by comparison with the Nephite republic.
The Book of Mormon account of the birth, life and death of the Nephite republic begins with the last part of Mosiah and continues to the 7th chapter of 3rd Nephi. The following verse describes a recurrent problem.
For as their laws and their governments were established by the voice of the people, and they who chose evil were more numerous than they who chose good, therefore they were ripening for destruction, for the laws had become corrupted. (Helaman 5:2)
The basic laws of the Nephite republic were the laws of Mosiah which were regarded as inspired by God. The soundness or corruption of the laws being applied at any given time were judged by comparing them with the laws given by Mosiah.
The Constitution as a fixed standard.
The same principle applies to the United States Constitution. Both the laws of Mosiah and the Constitution provide fixed standards against which other laws are to be judged. Their function is similar to having standard weights and measures against which measuring devices can be tested for accuracy.
Recognizing that the Constitution serves as a standard, and the great care taken by the Framers to insure that the standard not be changed except by general agreement of the people, highlights the absurdity of the currently popular notion that the Constitution can be amended by the Supreme Court under the modem changed doctrine of judicial review.
A few examples will illustrate the unsoundness of such a position. [p. 26]
Comparing the Constitution to a contract.
The Constitution can be compared to a contract made by the people among themselves and with the government concerning the characteristics of the political system they agreed to accept. They devoted great effort to be very clear as to the terms of that contract and that they positively would not accept a substitute.
The people even insisted that clarifying provisions be added to avoid any misinterpretation of the limited terms of their agreement. That agreement provided that it could not be changed without their consent. It even specified the degree of consensus required for that consent to be valid.
With all that care to prevent changes in the contract without the consent of the people in general, how incongruous it is for a small group of judges sworn to protect the contract from changes by others to fundamentally alter it themselves without the people's consent.
Comparing the Constitution to an agency arrangement.
The Constitution is also similar to an agency arrangement. Under it the people have established a particular system of government and delegated specific authority to its various parts.
In effect the Supreme Court is an agent of the people appointed by their representatives. The terms of the agency are set forth in the Constitution. Under those terms the Supreme Court is not a general agent empowered to do anything it wishes. Instead its authority is specifically limited to deciding particular types of cases.
The delegated judicial power contained in the Constitution dearly does not authorize the Supreme Court to itself change the Constitution. Consistent with such lack of amending authority in the Supreme Court, the Constitution contains specific detailed provisions for making changes by general consensus of the people.
In view of those specific provisions, how absurd it is for the Supreme Court to violate its own limited delegated agency authority in two ways. The first is by usurping authority to do what is not authorized to do. The second is to violate the specific provisions of the Constitution agreement that changes can only be made by consent of the people in general.
Egregious as it is for the Supreme Court to usurp authority to amend the Constitution on its own, it repeatedly does so not just in minor ways but in ways so major as to fundamentally alter the overall system of government.
It is hard to comprehend a people deserving to be free who tolerate such high handed usurpation without at least demanding the commencement of impeachment proceedings. Actually Supreme Court judges are very susceptible to public opinion. In fact, [p. 27] it has seemed to me that to at least some extent their decisions have been influenced by what they felt the public would accept.
Overthrow of the Nephite republic.
The overthrow of the Nephite republic and the breakup of the government into tribes are described in 3rd Nephi, chapters 6 and 7.
Two characteristics of that day are strikingly similar to today. One was the great unrighteousness of the people and the other was the illegal usurpation of authority by many judges.
Today there seems to be some increasing awareness, particularly among committed Christians, that freedom is related to national righteousness. But there does not seem to be much recognition of the need for insisting that judges not exceed the real scope of their authority.
Is the Supreme Court above the law?
The quotation from Justice Crockett's opinion in Utah v. Phillips, in Chapter 2 of this work, ends with the words "our disagreement with the almost unbelievable arrogation of power by and to the federal government and its judiciary."
To some, charging the Supreme Court with "almost unbelievable arrogation of power" may seem extreme. However, that statement seems less extreme when considered in the light of the way the Supreme Court has become accustomed to violating its limited constitutional authority and exercising almost frightening power over the Constitution, the rest of the federal government, the state governments and the people, and then acting as the sole judge of whether it has done so.
In view of the way the Supreme Court violates the Constitution and then excuses itself for doing so, in effect treating itself as the law maker and therefore above the law, perhaps consideration should be given to use of the constitutional remedy of impeachment with respect to particular justices. [p. 28]