Invalid Amendment and Caselaw Drift

​​All of these proposed ballot initiatives or bills, and more than half of the proposed amendment, address constitutional text repealed without Article V amendment. Where it involves themselves Congress, the courts, the executive branch and the states haven't been enforcing the entire text as law.


How can that be? It's surprisingly easy. Sometimes it's even unintentional. When Congress passes a bill and the President signs it, it becomes a law. As long as the Supreme Court upholds that law, it stands. Alternatively, when the Supreme Court issues a ruling, it becomes caselaw, upheld by all courts and obeyed as though it was a passed and signed law.

Constitutional law views each clause through precedent to keep practice consistent and to build a body of interpretation. But if the points of a case or the language of a statute are badly framed or reasoned, distortions and any flaw in interpretation enter caselaw. Over generations caselaw can drift from the Constitution to an extent that distorts doctrine and eventually invalidly amends the text. 


Less commonly, legislation or even rulings can invalidly amend in one stroke. Where power is concerned, the possibility of corruption always has to be considered. It's not disrespectful to judges or Justices to consider it because it's an axiom in any functioning legal system that corruption negates the legal force of a precedent.   


Neither statutes nor caselaw "shape" the Constitution. No matter how much time has passed nor how long a series of statutes and rulings have invalidly amended a clause, the entire series of invalid amendments remain violations and must be corrected. 

Caselaw drift isn't the same as accommodating new developments, and invalid amendment is more than a Supreme Court ruling you disagree with. Invalid amendment effectively renders the Constitution's text unusable to define constitutionality in court (see Invalid Amendment by Ruling and An Invalid Amendment by Statute). Even though invalid this will still be followed: the legal system and executive branch of course follow the Supreme Court, which in its turn leaves political questions mainly to Congress. It's followed until Congress or the Court corrects the error or amendment restores it (see Restoring Invalidly Amended Text). 

It should never take amendment to restore invalidly amended text because the text is already in the Constitution. But when time passes and caselaw drift compounds the original error, it becomes harder to reestablish the text securely (see Restoring the Preamble). Plain text becomes disputed text by error.​


Invalid amendment and caselaw drift are the "how" of diminished government accountability. The Constitution is the law and the government is required to be structured and to function the way the people agreed on.


The Constitution we ratified was designed to prevent or short-circuit corruption. The Framers knew accountability to the people was critical. When our government deviates from any of its provisions it nearly always reduces that accountability, reducing the public's power over them. Four of the five sections are areas where invalid amendment and caselaw drift have created significant accountability problems: campaign finance, elections, representation, and corruption.  

We don't need to put this in the dangerous hands of a Constitutional Convention because the problem isn't the text, it's that the government is out of compliance with the text.

But the Supreme Court only hears cases with proximate victims. This leaves a gaping hole in American law: when the government changes itself by invalid amendment or is changed by caselaw drift, the law has been broken but there are no proximate victims. 


The statutes and part of the amendment RepairRestoreSafeguard has drafted or recommends would restore government structure and functioning to the requirements we ratified. The part of the amendment that isn't just restoration is designed to add safeguards that will make it harder to invalidly amend in the future.


But one other statute will be needed:


  • We must require the Supreme Court to take cases charging invalid amendment or caselaw drift without a proximate victim.


We can't continue to allow government officers to climb through the High Court's loophole with no recourse by the public. When government itself is at fault, the people are all victims - and so is the Constitution itself. The High Court must be required to address this when it happens.


Nearly a quarter of a millenium has passed since we ratified the Constitution. We've learned enough in that time to know how important the public's oversight powers are. 

The political revolution is really a restoration. But it's not just about the past! We have to think of the future. Invalid amendment and caselaw drift can reduce government accountability so badly that all attention to the public's needs corrodes. In 2017 people are marching in the streets pleading for the government's attention. We shouldn't have to reach this level of unaccountability again before we can correct it. The measures proposed on this site aren't single-use fixes. They create tools we will always be able to use again.