Check Your Copy Of The Constitution — It’s Probably Wrong!
(note: If the above is confusing, see my comment at the end of this story.)
Reserved Powers: In my copy, the 10th Amendment reads “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” Because the US Constitution has little to say about police power, this has been largely reserved to states, as long as state law doesn’t contradict American law; state authorities can request National Guard support from the president if they deem it necessary. But that cannot be correct, as President Trump has nationalized California National Guard troops in Los Angeles against the governor’s wishes. Trump is also now sending in US Marines to police Americans, without a congressional authorization, threat of rebellion, war, etc., and threatening the arrest of elected officials including the governor. Assuming the 10th Amendment still exists, it must have new language, at least for the blue states.
Due Process: The Constitution seems to guarantee due process to “any person” in the US. Due process basically refers to fair, clear, proper legal treatment, as opposed to arbitrary whims and biases of the police, prosecutors, jailers, and judges. In my version, the Bill of Rights (first ten amendments) is full of language protecting “people” (not citizens) from governmental authority (e.g., “no person,” “any person,” the owner,” “the accused”), whereas it does use the word “citizen” in the 11th Amendment in a non-civil liberties context.
The 14th Amendment applied that logic to states, forbidding them as well from denying due process and equal protection to any person. In fact, those clauses using the word “person” come immediately after other clauses using the word “citizens.” To someone who has not heard the administration’s explanations, that might suggest the authors chose the term any person intentionally. But maybe they just weren’t thinking it through carefully? Otherwise they’d be protecting evil foreign terrorists, human traffickers, drug smugglers, and kidnappers. As “border czar” Tom Homan repeatedly asked, “What about the due process rights of their victims?”, an argument immediately echoed by Trump — who has always argued that the accused have far too much due process protection… especially those accused of sexual harassment and assault, business fraud, tax evasion, stealing national security documents, falsifying documents, and attempts to overthrow the US government.
I know that data analysts say that citizens actually commit crimes at higher rates than immigrants, but that can’t be true because we never hear reports of that data! And we all saw that poor lady at the White House briefing whose daughter was brutally killed by an immigrant.
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So surely they meant only obvious American citizens. Yes, there are some citizens who don’t “look American” but they can carry a passport, birth certificate, and other such documents with them at all times. Maybe non-citizens could be required to wear some symbol on their clothing?
Separation of Power: Congress’s power is listed first (in Article 1 of the Constitution) and is much longer than Article 2 (the executive branch). This order and the long list of Congressional power, especially in Section 8, has led some to believe that Congress possesses huge power that it clearly does not. The first and third sentences say Congress has the power of taxation and to regulate commerce with foreign nations. That might have previously made sense, but not with an economic mastermind as president, which is why Congress has made no effort to interfere with his “art of the deal.” This should be reflected in an edited version; at least in the case of such capable presidents: all authority over trade, tariffs, regulations, international agreements, etc. are in the hands of the executive. For that matter, the Senate should not have to ratify treaties — when Trump threatens to withdraw from NATO and UN agencies, he must have reasons that the Senate doesn’t understand.
Statutory Authority: My copy of Article 1 claims that Congress has lawmaking power, including taxing and spending, and creating federal agencies to carry out its law. The last line of Section 8 is sometimes referred to as “the elastic clause” because it authorizes Congress to create structures, processes, rules, budgets, etc. that might be “necessary and proper” to carry out its authority. But since the creation of DOGE and its leadership by a non-governmental authority, and since Trump’s unilateral decisions to disable various authorized programs and to refuse to spend money appropriated by Congress, it’s clear that power is not so stretchy after all. In fact, Article 1 and 2 should probably be reversed in order, and most of section 8 can be deleted.
Emoluments: Article 1, Section 9 says US officials cannot “…without the Consent of the Congress, accept of any present, Emolument, Office, or Title, of any kind whatever, from any King, Prince, or foreign State.” According to Trump-haters, an emolument is a gift, payment, reward, fee, etc. Because Congress did not authorize the extensive gifts and payments Trump received in his first term and is still receiving from foreign and domestic donors, his opponents say he is in violation.
But policing emoluments is just too much trouble to ask of Congress, who are busy making important social media spots of clever comments their staffers wrote for them to say in hearings. When Trump got his free $400 million dollar jet, Speaker of the House Johnson said “But I’m going to leave it to the administration. They know much more about the details of that, OK? I’m just — it’s not my lane.” Not my yob.
And just because foreign governments paid Trump $3.75 million to stay at his hotels (including $10,500 suites, and rented out rooms for zero guests, that doesn’t necessarily mean that was an emolument, no more than all the other things they constantly give him — because emolument is just too old a word. Who knows what it really means? This section is simply out of date, just like the Article 1, Section 8 requirement that Congress alone coins money. After all, Madison did not know about cryptocurrencies! You should just mark that part out.
Judicial Review: Since Marbury v. Madison (1803), federal judges (at all levels) have used the power and duty to strike down laws or actions by the executive or legislature they find unconstitutional after reviewing a case. Trump’s opponents have repeatedly sued him over his disregard for the law, but the Trump administration is arguing that lower federal judges cannot use this power. And the Vice President, the Attorney General, the Speaker of the House, and many others have made it clear that federal court opinions do not determine executive branch decisions, orders, compliance with the law, etc. anyway.
Federal judges have their opinions, but the executive has his as well! Judges should just stay in their own lanes, as Speaker Johnson suggested. That whole checks and balances thing is passé and if you’re a legislator, you definitely shouldn’t sit with uncool judges in the lunchroom; what if an executive sees you?
The 22nd Amendment says “No person shall be elected to the office of the President more than twice.” What threw me off was its deceptively simple language. But actually clearly that cannot be, because President Trump is already essentially campaigning for a third term and the Congressional majority has not refuted the idea. Perhaps the plan is to allow Trump to ascend to the presidency, for example after Vance is elected as a placeholder and then immediately resigns. The last line of 12th Amendment seems to rule out Trump being elected vice president, but he could be appointed the 4th-in-line Secretary of State and become president after the Vice President, Speaker of the House, and President Pro Tempore of the Senate resign. Or the House could just choose Trump as their Speaker beforehand. You might want to correct that 22nd Amendment language if you have a bad copy.
By the way, we should probably also add some new sections to the Executive Article about the president’s responsibility to name bodies of water, keep foreign leaders in check through insults, maintain his own social media empire, personally determine nominees of his party, make money by selling access, give pardons for favors rather to correct injustices, and many other things the original constitutional framers overlooked. I suspect the list of corrections is going to lengthen considerably.
