This is a cross-post of a message sent to the members of the conlawprof list in response to a message asking members to provide one amendment they would like to see made to the Constitution. While this proposal is rough, and contains several sections, it would go a long way to meeting the challenges of various kinds of gun control legislation. You might have your own ideas for an amendment.
-------- Original Message -------- The judicial powers of the United States and the several States shall be exercised as follows:
1. Any jury or panel of judges must be unanimous to sustain a claimed power of a government official or agent against a claim by an private individual that no such power has been delegated, or that it has been, or is likely to be, exercised in an abusive manner.
2. Any person shall have right of oyer and terminer on a petition of quo warranto against any action or imminent action of any official or agent, for declaratory or injunctive relief, and any such action shall be stayed, except in an emergency involving imminent danger to the public safety, until proof has been made of the authority for such action, to include demonstration of an unbroken logical chain of authority leading back to provisions of the applicable federal or state constitution.
3. In any judicial proceeding with a jury, all issues of law shall be argued in the presence of the jury, who shall receive copies of all pleadings, including pleadings in intervention or amicus curiae, and access to an adequate law library.
4. No constitutional right shall be disabled but by judicial order on a petition to explicitly disable that right, and proof beyond a reasonable doubt that the disablement is either a due punishment for a crime otherwise proven, or if not disabled would present a significant public danger; and for any such disablement the defendant shall have the right to a unanimous verdict of a jury of twelve persons selected at random from the community, excluding only those with a personal connection to the parties in the case, or those unable to read and comprehend the applicable constitution.
5. A grand jury of 23 shall be selected at random from and for any community of 3,000 citizens, more or less 5 percent, and shall have sole power to decide which, if any, of several contending prosecutors, public or private, in a criminal case, shall prosecute, by returning a bill of indictment to one or more and not to the others; and no person shall be barred from private prosecution of a public right, although multiple or conflicting prosecutions may be joined by the grand jury.
6. Every judicial decision shall be published, together with all pleadings in the case; every such decision shall clearly separate and indicate the orders, the findings, and the commentaries; and in reaching a decision no judicial precedent shall be consulted unless and until first the text, then the legislative history, of applicable constitution and statutes, have been exhaustively analyzed.
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The problem is not that courts declare too many statutes unconstitutional, but that they allow as many to be enforced as they do, especially when members of Congress have all but abandoned even the pretense of complying with the written Constitution in the statutes they adopt, preferring instead to pass the buck to the courts.
--Jon
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