The Enumerated Powers Amendment

"God save the United States and this Honorable Court."

Recently, President George W. Bush officially endorsed a constitutional amendment to protect marriage as it was instituted by God and nature -- and common sense. But to what end?

Our Constitution should only be amended as a last resort -- a measure taken only in response to the most serious of circumstances. This crisis, however, is not confined to the definition of marriage. Rather, it represents the larger scope of the Left's judicial assault on our national and state constitutions -- an assault that has marched so far into the heart of our republic that the mere determination of what constitutes an institution as fundamental as "marriage" must now be constitutionally defined.

As President Bush noted in his comments on the proposed marriage amendment, "After more than two centuries of American jurisprudence, and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization. Their actions have created confusion on an issue that requires clarity."

Case in point: The Defense of Marriage Act, overwhelmingly passed into law in 1996 to define marriage as between one man and one woman, is far from a guarantee. Recent actions by judicial activists in support of homosexual agendas bear this out all too clearly. In fact, under the current barrage of judicial activism, nothing prevents the federal courts from declaring the Defense of Marriage Act "unconstitutional," or, as they are infamous for doing, simply re-interpreting it to comport with their own ideology.

Indeed, our government and the law as envisioned by our Founders -- a government "to ... establish Justice" -- has devolved into little more than a system of government by judicial diktat. Alas, our Founders expected judges to honor our Constitution; to be constitutional constructionists bound by the letter of that venerable document; to be accountable to the law as written, not interpreted as if they had written it.

No sooner had judicial activists begun "interpreting" the constitution such that it comported with their political agenda, than the courts became political instruments. Elected officials were thereafter chosen based upon who they had appoint to the courts, knowing that those appointments would reflect a particular political agenda.

But such "interpretation" of our Constitution is in clear violation of the original intent of our Founders. The most definitive explication of our Republic's Constitution is The Federalist Papers, authored by James Madison (who drafted the Constitution), John Jay and Alexander Hamilton.

The Federalist Papers were quite clear about the proper role of the judiciary, because the method by which the Constitution of the United States was to be interpreted was one of the most pressing obstacles to its ratification. The concern among constitutional opponents was that the document gave the judiciary the power to interpret the laws according to the spirit of the Constitution, which, as they said, would "enable that court to mold the laws into whatever shape it may think proper, especially as its decisions will not be in any manner subject to the revision or correction of the legislature."

"This," said The Federalist authors, "was as unprecedented as it was dangerous." Continuing, "There is not a syllable in the plan...which directly empowers the national courts to construe the laws according to the spirit of the Constitution." (Federalist No. 81)

But Thomas Jefferson realized that even given the clear restraints on judicial activism, the federal bench would eventually devolve into a political forum for the expression of individual ideology. Jefferson warned of the potential tyranny of the "despotic branch": "Over the Judiciary department, the Constitution [has] deprived [the people] of their control. ... The original error [was in] establishing a judiciary independent of the nation, and which, from the citadel of the law, can turn its guns on those they were meant to defend, and control and fashion their proceedings to its own will. ... The opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch. ... It is a misnomer to call a government republican in which a branch of the supreme power [the judiciary] is independent of the nation. ... It has long, however, been my opinion, and I have never shrunk from its expression...that the germ of dissolution of our federal government is in the constitution of the federal Judiciary; working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

Indeed, virtually all has been usurped. Jefferson, in his great wisdom knew that human nature being what it is, federal judges would eventually abandon the plain language of the Constitution in favor of their own interpretation of its meaning.

Thus, the proposed marriage amendment does little more than bandage a lesion on a body already consumed with cancer. In addition, it lends a false sense of security.

If the issue -- as President Bush presented in no uncertain terms -- is the imminent threat of judicial activism (and indeed it is), then the only constitutional amendment we should be considering is one that addresses judicial activism.

As for the lawlessness of these from-the-bench legislators, they disregard the Constitution they have sworn to uphold. At its heart, such judicial activism is patently unconstitutional, for it operates in open defiance to the prescription for amendment explicated in Article V.

For this reason, we propose an amendment to the Constitution, "The Enumerated Powers Amendment" (inspired by the "Enumerated Powers Act" now before Congress). The Amendment will mandate that our Constitution be construed in the national courts according to its "original intent" when ratified -- in keeping with the prescribed constraints of Article V's dictates for the Constitution's alteration. Significantly, this Amendment calls on the House of Representatives to remove from office, by majority vote, any judge not in compliance with Constitutional law.

The rationale for remanding judicial offenders to the House for removal from office, rather than to the House and Senate for impeachment, lies in attempting to restore the balance of power to government. In constructing our federal government, the Founders sought to distribute and balance the powers invested in the Republic by, in part, entrusting the House of Representatives with the power of the purse. The one constitutional exception to this power, however, is with regard to the federal judiciary, as stipulated by Article III Section I: "The Judges...shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office."

Likewise, the authority to confirm federal judgeships is given to the Senate alone, with the intent of shielding the Judicial Branch from the whims of the lower chamber's democratic impulse.

However, because all branches have, to one degree or another, forsaken their constitutional obligations, Jefferson's vision of the judiciary as the "despotic branch" has become a reality. This departure from constitutional norms has, in effect, pushed Republicanism toward Oligarchy to the extent that a Democratic "pull" from another branch (namely, the House) is needed to help restore the mean. Therefore, the proposed Enumerate Powers Amendment, below, invests the House of Representatives with the authority to remove from office wayward federal judges whom the Senate has confirmed. Given Article III's prohibition on defunding the judiciary, such an amendment would have the effect of restoring the legitimate balance and separation of the powers as originally envisioned by the Constitution.

The Enumerated Powers Amendment: An Amendment to Article V of the United States Constitution:

Whereas Article III Section 1 stipulates;

The judicial Power of the United States shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services a Compensation, which shall not be diminished during their Continuance in Office.

Whereas Article V states in its entirety;

"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Whereas Article VI Section 1 stipulates;

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

Then the clause in Article 5 stating;

"Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate."

Shall be Amended as follows:

"Provided that no state, without its consent, shall be deprived of its equal suffrage in the Senate; and that no rights or obligations, requirements or restrictions, not expressly stated in this Constitution shall be implied or inferred, it being the intent of this article that any change or alteration to the express provisions of this Constitution shall be by amendment alone, and in accordance with the express provisions in this article alone. Any judicial Officers of the United States, bound by Oath or Affirmation to support this Constitution, who imply or infer rights or obligations, requirements or restrictions, not expressly stated in this Constitution, shall be remanded to the House of Representatives for removal from office by a majority vote."