Friday, 2002 May 10, 12:13 — constitution

the 1787 game

Eugene Volokh invites you to write the constitutional amendment of your dreams. (Do people on other shores play this game too?) Here’s mine.

The judicial power of the United States shall be vested in such courts as the several states may from time to time ordain and establish. Matters of Federal jurisdiction (as defined in Article III) may be brought in the courts of any State, and appealed twice to courts of any State(s); but in certain cases [tbd] the choice of a State shall be by lot.

This would avoid such miscarriages as Idaho v Horiuchi, in which a murder case was removed from State to Federal court because the accused was an agent of the FBI, and then dismissed because there is no Federal law against murdering commoners. But more importantly it would restore a check against the Federal government as a whole, such as was envisioned (differently) in the Federalist Papers. (Compare this item.) Secondly, such an arrangement – being ‘headless’ – reduces the power of the courts to write silly things in stone like “all means all except” and “commerce means anything with an arguable causal relation, forward or backward, to commerce”.

This one is more obvious:

Any law or rule made under the legislative authority of the United States may be voided by acts, within one year, of the legislatures of N states.

My first draft said “Any act of the United States” but I wanted to exclude purely executive acts affecting particular persons, such as naturalization, and judicial findings of fact. Oh, which reminds me:

Legislative findings of fact shall have no force of law.

A Federal court recently disallowed a medical necessity defense in a marijuana case because Congress had enacted, as law, the ‘fact’ that marijuana has no medical utility.

No comments yet.

Subscribe without commenting

RSS feed for comments on this post. TrackBack URI

Leave a comment