Liberty Amendments III - Revamping the Supreme Court

STOP! This Amendment is a Threat to Liberty!

SECTION 1: No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years. 

SECTION 2: Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year. 

SECTION 3: When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term. 

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court. 

SECTION 5: The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court. 

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court. 

SECTION 7: The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President. 

SECTION 8: Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.

Levin, Mark R. (2013-08-13). The Liberty Amendments: Restoring the American Republic (pp. 49-50). Threshold Editions. Kindle Edition. 

 This proposed amendment is the first with which I have reservations.  The first problem I see with it is that it is not a single purpose amendment.  It tackles two issues in one: term limits for the Supreme Court and overriding the Supreme Court.

First, a little background on the Supreme Court.  Even the court admits that the Constitution does not grant it the authority to judge the constitutionality of laws or to be the final arbitrator of the law.  It is simply to be the final arbitrator in civil and criminal court appeals.  On the Supreme Court's official web page is the text of a speech by Chief Justice Charles Evans Hughes in 1932:

While the function of judicial review is not explicitly provided in the Constitution, it had been anticipated before the adoption of that document. Prior to 1789, state courts had already overturned legislative acts which conflicted with state constitutions. Moreover, many of the Founding Fathers expected the Supreme Court to assume this role in regard to the Constitution; Alexander Hamilton and James Madison, for example, had underlined the importance of judicial review in the Federalist Papers, which urged adoption of the Constitution.

First off, the Constitution is quite clear that powers not specifically granted to the federal government are reserved to the people and to the states.  Chief Justice Hughes obviously knew the court did not have the power it claims and the current court clearly demonstrates, by posting Chief Justice Hughes' speech, that they, also, are fully aware that they do not have that authority.  It is the people and the states who must be the final arbitrator of the constitutionality of the law.

Next, Chief Justice Hughes quotes the Federalist Papers as justification for assuming powers not in the Constitution.  This is an absurd argument.  There are many, many, points of contention that were debated in the Federalist Papers and the Anti-Federalist Papers.  Many of the points from one side or the other made it into the final version of the Constitution.  As many or more points that were debated did not make it into the Constitution.  If it did not make it into the Constitution, the fact that a point was debated does not, in any way, allow any discussion of that point to be considered today in deciding constitutionality.  If it did become part of the Constitution of the United States of America then the arguments in the Federalist or Anti-Federalist Papers does become critical in deciding original intent.

The Founders had intended the Supreme Court to be a virtually benign department in government but it did not take long for them to assume power that was clearly not granted in the Constitution.  There was actually much debate over whether the Supreme Court would hear constitutional cases even before the Constitution was ratified but the Constitution did not give them that power.  Not everything debated prior to ratification made it into the final document and it is that final document that defines our nation.  But the idea of the Supreme Court assuming authority for judging the constitutionality of laws was not a new idea.

WIth that background, showing plainly that the Supreme Court has set itself above the Constitution and surely needs to be restrained and brought under control of the people.  Even so, setting term limits for the Supreme Court is a risky proposition.  Perhaps after I read Mr. Levin's Men in Black: How the Supreme Court Is Destroying America I might learn something I don't know now but I have real concerns about this point.

It is unclear to me how term limits would serve to bring them under control.  We have all heard of cases where those leaving Congress have immediately taken up jobs working for those that supported them in their campaigns,  Not only do congressmen have to pay attention to their political donors in order to keep the campaign donations flowing, they have to legislate for those same donors so that they can get those high paying jobs when they leave office.

The purpose of lifetime appointments in the Supreme Court is to relieve the justices of the temptation to rule in ways that benefit them upon the expiration of their terms.  Term limits mean that justices must spend their time as justices wondering what they will do afterwards.  Can we always be sure that the wondering will not affect their judgments?

On the other hand, as shown I believe, by Chief Justice Roberts in upholding the individual mandate of Obama Care as a tax, having a lifetime appointment allows political zealots in the court to force their will on the people of the United States without any fear of repercussion.

Between the two risks - the unaccountable power of lifetime terms and the self-serving interest of planning their post-judicial careers and fortunes - I believe that the unaccountable-power risk is the lesser of the two.  I would rather have  a justice from whom we can hold out hope that they will follow their oath to uphold the Constitution than a justice that we know for sure is thinking of his next job as he makes every ruling.  I am against term limits for the Supreme Court.

The way to control the Supreme Court is to have reasonable checks and balances on what they rule but not as Mr. Levin suggests in the second half of this dual-purpose amendment proposal.

Mr. Levin suggests, in this proposed amendment, that the standard for overriding the Supreme Court be a vote of three-fifths (60 per cent) of both houses of Congress.  This is a bar much too low and giving Congress much too much power.  three-fifths is the same number it takes to break a filibuster in the Senate - the same number it takes any controversial bill to just get a vote in the Senate.  This would allow the Senate to make laws that cannot be challenged simply by passing the law.  You can be sure that Democrats and Republicans alike will vote to protect their laws because it is the Senate to which they are loyal and not to the Constitution, the states, or the people.

In Article I, Section 2 of the Constitution, the numbers for Congress to override the president is two-thirds:

Every Order, Resolution, or Vote to which the Concurrence of the Senate and House of Representatives may be necessary (except on a question of Adjournment) shall be presented to the President of the United States; and before the Same shall take Effect, shall be approved by him, or being disapproved by him, shall be repassed by two thirds of the Senate and House of Representatives, according to the Rules and Limitations prescribed in the Case of a Bill.

The number for overriding the Supreme Court should be no less than that for overriding a presidential veto.

Mr. Levin suggests that the power to right Judicial wrongs should only exist for the first two years of the wrong.  Does wrong, once established for two years, somehow become right?  What happens if a law is passed by a single vote but it is clearly constitutional yet an activist Supreme Court overturns it based on their own idealism?  It can take two years simply to have an election that would allow the people to seat a Congress willing to stand up for what is right.  Perhaps it takes longer than two years. How can there be a limit on the time to make write that which is wrong?

A very interesting point in Mr. Levin's proposals, though, is the idea that, once overturned, there can be no other review by the Congress or the President.  The Supreme Court enjoys that unchallenged power today so why would not the Congress if the intent of the Founders was to have three co-equal branches of government?  If Mr. Levin's recommendation is passed then how can we provide a similar and equal power to President?

One suggestion that might work would to be for the President to have veto privileges over the Congressional override but that would mean that any case that the administration argued in the court and one could never be overridden.  Another possibility might be to leave the three-fifths majority that Mr. Levin suggests in order to override the Supreme Court with the President having veto authority but the Congress could come back and override the President with a two-thirds vote, just as they can do in overriding any veto.

One of the reasons that we are even discussion changing the Constitution is that the courts have found ways to see a spade and call it a heart.  They twist the words and meaning with such impunity that everyone, they and we, know they are twisting the words and one knows that the other knows.  So, in amending the Constitution, we are looking for words and ways to prevent even the most brazen twisters of words, truth, and logic from twisting what the Constitution says in order to get away with disregarding it.  Even so, and as qualified and talented an orator and wordsmith as Mr. Levin is, he has a huge flaw in how he words Section 4 and Section 6 of this proposed amendment.

SECTION 4: Upon three-fifths vote of the House of Representatives and the Senate, Congress may override... 

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override... 

Levin, Mark R. (2013-08-13). The Liberty Amendments: Restoring the American Republic (p. 50). Threshold Editions. Kindle Edition.

By Mr. Levin's words, the three-fifths votes only give the opportunity for the Congress or States to then consider overriding the Supreme Court.  Does Section 6 require a three-fifths vote of each and every state legislature, both houses, or does it require a simple majority in both houses of three-fifths of the state legislatures?  Or does it require something else like a three-fifths vote of both houses in three-fifths of the state legislatures?

If you laugh or challenge my interpretation then you must surely see the opening that the order of the phrases leaves.  A huge risk in any constitutional amendment or convention is that words are used that either deceive us into thinking that they are for our benefit when they restrict our liberty even more or words that are easily rendered meaningless because they can be easily twisted into unintended meanings.

Instead, the two sections, if they are to be considered at all, should read:

SECTION 4: The Congress may override a majority opinion of the Supreme Court by a three-fifths vote of the House of Representatives and the Senate.

SECTION 6: The States may override a majority opinion of the Supreme Court by a majority vote in three-fifths state legislatures of the various States.

Mr. Levin does not define in the amendment what it means to override the rendered opinion.  Does it simply undo the opinion and we have differing laws in different parts of the country, depending on the opinions of the various circuit courts?  Different federal laws in different regions is a completely unacceptable condition, even though we often have that today.

Whether the override of a decision originated in Congress or with the state legislatures, it would apply only to the four corners of the majority opinion of the specific Supreme Court decision. It could not be used to parse the meaning of a decision or entangle precedent. The override would simply expunge the holding of the Court. If there are conflicting rulings by lower courts within or among the different judicial circuits, these would stand as the ruling precedents on the legal and/ or constitutional issues relating to the litigation in those forums.

Levin, Mark R. (2013-08-13). The Liberty Amendments: Restoring the American Republic (p. 69). Threshold Editions. Kindle Edition. 

Any solution that allows the Congress to override the Supreme Court simply gives the Congress the power to modify the Constitution without any oversight or review.  If I didn't know Mr. Levin's passion, hard work, and dedication to individual liberty and the Constitution, I would think that this override clause was just the type of thing I have said we need to fear from amendments or a constitutional convention: proposals that are inherently dangerous to liberty, by intention or otherwise, but presented as increasing liberty.

Allowing the States to override the Supreme Court is an interesting proposition since they have that ability already: they have the power to amend the Constitution and, in fact, that is the entire premise of Mr. Levin's book.  All that is missing in Sections 6 and 7 of Mr. Levin's amendment proposal is the convention of the states.  But if the states are going to override the Supreme Court, how will they know and agree on what it is that they will vote if not by convention?  Though Mr. Levin's proposal lowers the bar for amendments that overturn the Supreme Court, it limits them to two years, in effect, reducing their existing capacity to override the Supreme Court.  Granted, the proposal does not remove the existing amendment authority but it will be argued any time they want to amend the Constitution to undo the damage of a Supreme Court decision that the two-year rule will apply, even though it would not apply.

Considering my own argument that any override of the Supreme Court should have the same bar as overriding a presidential veto - passing by the vote of two-thirds of the state legislatures - then there is no difference between what Mr. Levin proposes in Sections 6 and 7 of this proposed amendment and in the existing power granted by the Constitution today.

I started my review of this proposed amendment, having read Mr. Levin's book cover-to-cover, thinking this would get a yellow banner as a caution, meaning that the amendment had merit but needed to be considered with caution and changed to eliminate the risks as worded.  As I wrote, read, re-read, researched, and considered this amendment, it became clear that, as good intentioned as Mr. Levin is, in this case he is wrong.  This is an amendment that should never be incorporated into the Constitution.  That said, the Supreme Court is out of control and I hope that there can be amendments designed that do bring them back to Constitutional standards - including stopping them from being the final arbitrator of the constitutionality of laws - a power that they even admit they usurped without authority.