COGA — the Consent Of the Governed Act

Background

No government is legitimate which does not have the Consent Of the Governed.

In 1776, the American colonies cast off the government of King George III as it had become oppressive. George III lost legitimacy; he no longer had the consent of the colonies to be governed by his government.

In 1787, the States ratified the Constitution of the United States of America, creating a new federal Government and granting to it certain, limited powers, all of which are enumerated in the Constitution, and reserving to themselves all powers not expressly granted to the new Government.

It is implicit in the Constitution that the Government is required to act in accordance with the Constitution and that the States reserve the right, and have the duty, to enforce the Constitution upon the Government. The Government owes its very existence to the consent of the States. If the Government is not answerable to the States, the Government loses legitimacy. State oversight of the Government is therefore essential if the Government is to be considered legitimate.

The States have observed a long and continuous usurpation of powers by the Government, foremost among them, the practice of Judicial Review, which substitutes the Government's own consent for that of the states. Needing only its own approval to assume new powers, the Government sees no practical limits on its powers.

The legislature has enacted laws in areas for which it was not granted powers to legislate in Article 1, Section 8 of the Constitution;

The Executive issues regulations having the force and effect of law without being enacted by the legislature;

The Judiciary has erected numerous and substantial impediments to challenging acts of the Legislative and Executive through the courts and imposed rules that are biased in favor of unconstitutional laws.

The States have too long neglected their duty to protect their reserved rights and powers and the rights of their citizens against federal encroachment.

It is time for COGA — the Consent Of the Governed Act.

Under the current paradigm, if someone wishes to challenge a federal law as unconstitutional, the challenge must be brought through the federal court system. As explained elsewhere, the power to review federal enactments as constitutional or not is rightly a power reserved to the states by the Constitution.

Comparing COGA and Current System
COGA	Currently
The States decide if the federal government is acting constitutionally.	The federal government decides for itself if it has acted constitutionally.
Ordinary citizens can challenge constitutionality of a law.	Must have "standing" to sue -- Often means you are a convicted criminal for having violated the contested law.
Citizens can petition their state government.	Must work through federal courts
Enforcement ceases when the law is challenged.	Enforcement continues until the law is overturned.
Errs on the side or protecting the States and the People.	Assumes FedGov rarely acts unconstitutionally.
Prevents enforcement of Not-Laws.	Allows enforcement of Not-Laws.
States exercise a Reserved Power.	Supreme Court exercises powers not delegated to it by the Constitution..

Our Intention is that:

COGA will declare that a state enacting it will decide by whatever means it may choose, that any given FedGov act, statute or regulation is unconstitutional and not enforceable within its borders.
COGA will provide a mechanism to allow for citizens to petition their state legislature to review any given federal enactment. Each state would decide for itself how many signatures or what percent of citizens must petition for relief from unconstitutional acts of FedGov.
COGA will set forth the means by which The People, the legislature or state officials shall propose a particular FedGov enactment for review and the mechanism for determining when a challenged law shall be declared unconstitutional and its enforcement prohibited within that state. Examples of mechanisms that might be used:
- A vote of the legislature;
- Reviewed by state Supreme Court;
- Committee of citizens appointed by the governor;
- State-wide ballot;
- Sole discretion of the governor;
- Committee appointed by the legislature;
- Standing committee of state party leaders;
- [Your Idea Here]

About (1) above:

We leave it to the states to figure out how they decide that FedGov acts are unconstitutional. This is no different from how unratified Constitutional amendments are treated. The legislature of each state either ratifies an amendment or it does not. How they arrive at their decision is their business.

About (2) above:

The current paradigm for challenging unconstitutional laws requires someone to become a criminal. That is, by limiting Constitutional challenges to the court system, someone must be convicted of breaking the challenged law in order to have standing to challenge it. Even the most learned Constitutional scholar cannot challenge a patently unconstitutional law without first being convicted of violating it. The petition mechanism of COGA would make it possible for ordinary law-abiding citizens to challenge unconstitutional laws. We The People should not have to rely on criminals to protect our rights!

About (3) above:

Recall that it requires three-fourths of the states' legislatures to ratify a Constitutional amendment. This is called a "supermajority," as opposed to a simple majority (half+1). We propose that if one-fourth of the state's legislators+1 find a suspect FedGov law to be unconstitutional, it should be considered a Not-Law and remain invalidated. Put another way, it would require three-fourths of the legislators to decide that a law is constitutional for it to be so declared. This requirement would simply mirror the Constitution's three-fourths of state legislatures supermajority requirement to ratify amendments. It's supposed to be hard to amend the Constitution!

We don't think that anyone would (seriously) propose that unconstitutional laws be enforced. It's already been determined that unconstitutional laws are void from enactment, not just from when they are declared unconstitutional. Prudence dictates that suspect laws not be enforced until it can be determined that they are in fact constitutional.

Let's look at a hypothetical application of COGA. Suppose Arizona enacts a COGA law. As a citizen of Arizona, I might organize a petition drive to collect signatures to challenge a federal gun law. When I have collected the number of valid signatures required to challenge the law, the state of Arizona would prohibit enforcement of that particular law within its borders. Better to err on the side of protecting citizens from unconstitutional laws than to enforce possibly unconstitutional laws, violating Arizonans' rights.

Let us suppose too that Arizona has given the job of reviewing challenged federal laws to its legislature. The legislature would then review the suspect law and render judgement. Once the law had been judged, it would either be declared constitutional and enforcement reinstated or declared unconstitutional and enforcement would remain prohibited within Arizona.