CONSTITUTION SOLUTION CONTENTS
A Constitution solution is badly needed by We the People of the United States of America. On Monday July 29, 2024, President Biden proposed sweeping reforms to the Supreme Court of the United States requiring at least two Constitutional Amendments. Apparently, Vice-President Harris and Democrats also support President Biden’s proposal. Neither the current proposal nor “court packing,” increasing the number of SCOTUS members, will repair the flaw in our Constitution. The flaw in our Constitution is that it does not provide meaningful checks or balances on decisions rendered by Federal Judges at every level. For at least the last 100 years, both major political parties, progressives, and conservatives have complained that some federal court decisions were “unconstitutional,” failed to reflect the will of their constituents, or the “people.” Such decisions simply become the “law of the land,” and each side complained. In my opinion, the best solution is a Constitutional Amendment that provides a method to “override” federal court decisions that can be initiated by either the Executive or Legislative branches of our government.
Despite this issue, the Founders of our nation had a profound, providential vision for the future of the United States of America. They based their vision on the fact that the people of this nation shared a common Judeo-Christian heritage. That heritage included a common religion, a common moral and ethical code, a common industrious nature based on the colonization of a new world with new and unknown challenges, and common participation in a successful revolutionary war fought against one of the leading military powers on earth. The faith of the Fathers of this nation in its people allowed them to frame a constitution based on limited government and maximum freedom for the people. Freedom for the people is dependent on shared moral and ethical values, virtue. The Framers demonstrated faith in the governed by their choice of the first three words of the constitution, “We the People.”
THE SCOTUS POWER DEBATE
The lack of Constitutional checks and balances on the Judicial Branch has been debated from the time of ratification debates to modern debates over judicial activism which Constitutional conservative argue requires a Constitution solution. In The Federalist Papers, supporters of the proposed Constitution inferred that judicial decisions consistent with the manifest tenor, context and meaning, of the Constitution is good behavior as a jurist. In The Federalist No. 78 states, Alaxander Hamilton wrote,
Courts of justice; whose duty it must be to declare all acts contrary to the manifest tenor of the constitution void.
In The Federalist No. 81, he wrote,
In the first place, there is not one syllable in the plan under consideration, which directly empowers the national courts to construe the laws according to the spirit of the constitution
Justices of the federal judiciary no longer agree with the Father of the Constitution, James Madison, who stated in The Federalist No. 49,
As the people are the only legitimate fountain of power and it is from the people themselves; who, as the grantors of the commission (Constitution), can alone declare its true meaning and enforce its observance.
Finally, in The Federalist No. 81, Hamilton discussed impeachment of Federal judges writing:
And the inference is greatly fortified by the consideration of the important constitutional check (on the Judiciary), which the power of instituting impeachments would give to (the Legislative Branch) upon the members of the judicial department. This alone is complete security. There never can be danger that the judges would hazard the united resentment of the body (Legislative Branch) entrusted with it, while this body was possessed of the means (impeachment) of punishing their presumption by degrading (removing) them (judges) from their stations (the court).
The Framers intended that federal judges should rule based on the Manifest Tenor of the Constitution” and its amendments. They further inferred that decisions not adhering to the manifest tenor of the Constitution would not be consistent with good Behavior as a jurist. Finally, they argued that judges issuing rulings outside the manifest tenor of the Constitution should be impeached for their judicial actions. Since Judges have never been impeached for lack of this “good Behavior,” we need a Constitution solution.
In the Anti-Federalist, articles opposed to ratification of the Constitution, Robert Yates argued that the threat of impeachment for rulings outside the manifest tenor of the Constitution” did not provide realistic checks or balances on the Judiciary. President Thomas Jefferson disagreed with the power to rule on the Constitutionality of laws given to the Federal Judiciary by Chief Justice John Marshall’s opinion in Marbury v. Madison. Jefferson wrote,
If this opinion be sound, then indeed is our Constitution a complete felo de se [act of suicide], and it would place us under the despotism of an oligarchy.
Abraham Lincoln expressed similar concerns in his First Inaugural Address as follows:
The candid citizen must confess that if the policy of the Government is to be irrevocably fixed by decisions of the Supreme Court the people will have ceased to be their own rulers, having to that extent practically resigned their government in to the hands of that eminent tribunal (Supreme Court).As a result, some would say, we live under a dictatorship of the federal judiciary, an oligarchy.”
The debate over the power of the federal judiciary has raged from the Constitutional Convention to this day. Is it time to solve the problem? In my opinion, the time is now.
A CONSTITUTIONAL AMENDMENT PROPOSAL
In the absence of impeachment, the only remedy, or flawed Constitution solution We the People have for an unrestrained Federal Judiciary, is a Constitutional Amendment. The proposed Amendment should allow any member of the United States House of Representatives, the United States Senate, or the President of the United States to introduce legislation that would override any Federal Court decision at either the appellate or Supreme Court level.
The Amendment should have specific procedural guidelines, a reasonable timeline for action, and priority over other legislative activity in both houses of congress. It is my suggestion that this Amendment should include the following procedures. A “judicial decision override” bill, named after the court case in question, such as “Roe v. Wade Override,” would be introduced by a legislator in their house of the legislature. A Presidential “override” bill should be introduced in both houses of congress at the same time. The proposed Amendment must preclude a Senate filibuster at every stage of deliberations and voting. Within five working days of “override” bill introduction, each house of the legislature would conduct a vote, without debate, to start the “override” process which would occur only when both houses agreed to consider the “override.” Next, legislators in each House would have two weeks to prepare testimony for and against the “override.” Preparation of “override” testimony would occur concurrently with other legislative activities. In the next week, proponents and opponents of the “override” from both houses of the legislature would plan their testimony concurrently with other legislative responsibilities. During the next two weeks, testimony for and against the “override” would occur. In the first week, one house would hear testimony from the opposition to the “override” while the other house would hear testimony from supporters of the “override.” In the second week, testimony roles would be reversed in the two houses of the legislature. During the following week, each house would hold floor debates on the “override.” Each house would vote on the “override” at the end of the week of floor debate. If the “override” achieves a simple majority in both houses of the Legislative Branch, the bill would go to the President for signature resulting in a successful federal judicial decision “override.” In the case of a Presidential veto, a two-thirds majority of both houses would overrule the veto resulting in a successful federal judicial decision “override.” The vote to overrule a Presidential veto should occur in both houses of the legislature the first working day after the veto without debate.
One contentious issue related to the proposed Constitutional Amendment is its impact on previous court decisions enacted outside the manifest tenor of the Constitution which many have called Judicial Activism. My suggestion is for the Amendment to establish a joint legislative committee to review previous court decisions. This committee should have a limited time frame for actions, one to three years. Recommendation for Congressional action to reverse standing Federal Court decisions should follow the process described above.
In my opinion, a Constitutional Amendment of this nature is needed since the Federal Courts have shown their disrespect for the will of We the People. Our courts show disrespect by overturning both State Constitutional Amendments and state referenda passed by a majority of We the People in several states. Court decisions also demonstrate disrespect for We the People when they ignore the “manifest tenor of the constitution” ratified by We the People. The proposed Amendment is a true flawed Constitution solution.
I still believe our Constitution is the best ever conceived throughout world history. However, We the People have allowed the Federal Courts to act as an oligarchy for decades. Is it now time to correct its one major flaw? In my opinion,
We need an Amendment providing a flawed Constitution solution!
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