Our Perfect, Perfect Constitution
Paulsen, Michael Stokes, Constitutional Commentary
I suffer from a peculiar and aggressive strain of Stockholm syndrome, the psychological tendency of kidnapping victims to identify with, and even come to adore, their captors. The strain with which I am afflicted is unique to teachers of constitutional law. I am now in my twentieth year as a law professor. (Unbelievable, I know. Yes, indeed, I started very, very young-evidently sometime in my early teens.) Before that, I was a student and practitioner (of sorts) of constitutional law. I have been a hostage to constitutional law for a long time.
Constant exposure results in a certain degree of contamination. Eventually, it produces utter transformation. And so it is that I must now announce that I have, finally, succumbed. I now believe that everything in the U.S. Constitution is perfect. More than that, I have come around to the understanding that every Supreme Court interpretation of the Constitution is perfect as well and indeed must be regarded as part of the Constitution. I hereby repudiate everything I have ever said or written to the contrary (which is to say, essentially my entire academic career to date).
Alas, this leaves me in something of a quandary. What could I possibly contribute to a Constitutional Commentary symposium asking participants how they would re-write the Constitution? There is no room for improvement! All that remains is for our perfect written Constitution to be updated to reflect, perfectly, the Supreme Court's perfect interpretations of it. Thus, my relatively minor contribution to this symposium is a series of "amendments"--if one could really call them that--to bring the text more fully into harmony with the Supreme Court's pronouncements. These pseudo-amendments might usefully be added as a "pocket part" to pocket copies of the Constitution, so that folks (like me) who carry around a copy of the Constitution with them in their jacket pocket have a short-and-sweet text that includes not only what the Constitution says but also what it really means.
I've tried to keep the "amended" text brief and to-the-point. For verification purposes and ease of reference, I've included here a few footnotes identifying the authoritative Supreme Court decisions that establish the propositions set forth in these conforming amendments. For purposes of the pocket Constitution editors, it should be noted that the footnotes probably need not be included in the actual copies of the Constitution. I include them here just to show that they are, indeed, part of our incomparably perfect, perfect Constitution.
CONFORMING AMENDMENTS TO THE CONSTITUTION
1. Article I, Section 1, Clause 1 is amended to delete the words "herein granted." It shall hereafter read: "All legislative Powers shall be vested in a Congress the United States."'
2. Article I, Section 8 is amended to add the following sentence, after the listing of enumerated powers: "The enumeration in this article of certain powers shall not be construed to deny or disparage the power of Congress to exercise all legislative powers and enact any laws it likes; provided however, that such power is subject to such restrictions and rights as the Supreme Court sees fit to prescribe by decision." (2)
3. The Tenth Article of Amendment to this Constitution is repealed. (3)
4. Congress may delegate the power to make laws to such persons or entities as it sees fit, including (but not limited to) agencies or officers it creates from time to time, international organizations, and foreign nations."
5. The first sentence of Article II, Section 1 is amended to read: "'The executive Power shall be vested in a President of the United States of America and in such other offices and officers as Congress shall from time to time ordain and establish. Such other executive officers shall be appointed in a manner prescribed by Congress, removable in a manner prescribed by Congress, and subject to direction and control either Congress or of such persons or officers as Congress shall determine, including other such executive officers created Congress. …