In response to someone sending me a proposed Constitutional amendment "28" to require Congress to be subject to the same laws as everyone else (they aren't -- they are exempting themselves from the Health Care Bill), I had a lively exchange with some friends about my proposal for an Amendment 29:
Any member of Congress, or the Executive Branch, or the Judiciary, who approves or administers or enforces laws later found to be unconstitutional by the Supreme Court shall be immediately removed from office, permanently barred from any future office, and held liable for all damages suffered by the citizens of the United States as a consequence thereof, and be subject to both civil and criminal penalties.
The "lively" part was some strong objections, primarily on grounds of impracticability without philosophical change.
There's pro's and con's to the idea, for sure. As I told another friend, I agree completely that we mustn't ever have a constitutional convention at this juncture in time. The potential for abuse would be immense. You could count on pure, unfettered totalitarianism to emerge. A single amendment doesn't require a convention, but I'd also agree there is the potential for other bad amendments being introduced once someone starts the process, and that's a legitimate danger.
I'd also agree that the chances of getting an "Amendment 29" passed are zilch. I threw it out there as a purely hypothetical idea, and one I was really thinking of in some better future. As an engineer, I can't help observing that stronger feedback mechanisms would be essential even in a purely rational world. Quite honestly, it's crazy to create any system--electronic, mechanical or governmental--without appropriate feedback mechanisms, and the ones in the Constitution, better though they may have been than any other in historical terms, are pretty weak. Politicians today, with acquiescence of the courts, run roughshod over any checks and balances and principles of objective law.
I'd also agree that right now it's almost too late to implement an "Amendment 29" -- the courts, for one are so corrupted that you might not get so much mileage out of it, and it could genuinely harm your own cause if your side gets booted -- but can you imagine how much different the health care debate would have gone if every one of the Democrats and Obama himself were potentially going to be booted out of office (permanently!) if their bill was ruled unconstitutional?
What I would say in defense of the "Amendment 29" idea is that it is purely a limit on power. A brake that grants no extra authority but creates consequences for abuse of authority. For instance, you may criticize the idea on the grounds that we first require the philosophy of the country to change for the better, but consider that it has been pretty seriously flawed for the last 100 years -- if we measure from the enactment of trust-busting laws. If an "Amendment 29" had been in place all that time, I don't think we'd be anywhere in near the mess we're in now. For instance, the buffoons who created the Federal Reserve would have been booted out of office when it was first ruled unconstitutional.
Not just Teddy, but Franklin Roosevelt, too, as when he attempted to pack the Supreme Court. And many others. Legislators would have been much more inclined to seek serious legal opinions on the constitutionality of new legislation before voting for it. They would actually read bills they vote for, to be sure they wouldn't lose their jobs. What a concept. (And omnibus bills would diminish to insignificance if legislators were responsible for the entire contents of a bill.)
There are other reasons to potentially criticize the idea, but I think this would have bought us a lot of time -- I'd guess at least 50 years even in today's horrendous philosophical climate -- to achieve the deeper philosophical revolution of ideas we need in this country to cure its ills. An "Amendment 29" would not have been a panacea any more than an emergency brake on a car is a substitute for good design and good maintenance and a sober driver. But engineers tend to think in terms of self-regulating processes and designs that are less likely to fail, or at least, designs which give you more time to limp to the philosophical Philling Station for intellectual fuel, or to get a flat fixed. It's in that spirit that I suggested it.