This is the third post in my series discussing amendments to the U.S. Constitution proposed by Mark Levin in his book The Liberty Amendments: Restoring the American Republic. The first amendment addresses congressional term limits and the second deals with restoring the Senate by repealing the 17th Amendment and having state legislatures chose all senators.
The purpose of this series is not to debate the state conventions themselves, but to give you a summary of each amendment for the sake of discussion. His book, of course, also goes into greater detail about each amendment—the history, the rationalization, and the importance of each.
The third liberty amendment Levin has proposed aims to establish term limits for Supreme Court justices and a super-majority legislative override.
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.
The framers of the Constitution were concerned about balance of power in the government. They did not want to see an overly autonomous judiciary grow in power and overshadow the other branches of the federal government and the states.
Federal judges were expected to adjudicate “cases and controversies” that arose under federal criminal law and civil statutes—and exercise very little authority beyond that narrow scope. Contrary to the opinions of some notable Supreme Court justices and others down through the years, the reason the Framers did not specifically grant to the Supreme Court the much broader authority to judge the constitutionality of federal laws is that there was strong sentiment that such a function was well outside the authority of judges.
The framers’ hope for a balanced government has been sidetracked in many ways. For the judiciary, this began in 1803 with the Supreme Court decision in Marbury v Madison. In that decision, Chief Justice John Marshall wrote, “The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.”
“By claiming authority not specifically granted by the Constitution,” Levin writes, “abuses of power would certainly follow, as they have.”
Although the decision has been lauded by many scholars of all philosophical stripes, the fact is that the ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power. And the extent to which there are limits depends on the forbearance of the very courts that snatched the authority in the first place. It would “seem that if a Supreme Court majority of five lawyers has the final word on constitutional matters, then governance comes down to selecting five lawyers. This is obviously contrary to the Framers’ intent. Had the Constitutional Convention conferred such authority on a handful of individuals, which it most assuredly did not, it is indeed doubtful it would have conferred life terms upon them and provided no effective recourse.
Over the years, the Supreme Court has used its power not only to make judgments, but to set policy. Supreme Court justices have even strayed from their commitment to the Constitution itself, saying, as Justice Ruth Bader Ginsburg did, that the court should “look beyond one’s shores” to international law.
Former Associate Justice Sandra Day O’Connor was even more forceful on this point when she said, “Although international law and the law of other nations are rarely binding decision on U.S. courts, conclusions reached by other countries and by the international community should at times constitute persuasive authority in American courts.”
Levin wrote in Men in Black, “The Court has so fundamentally altered its duties, and so completely rejected the limits placed on it by the Constitution’s checks and balances and enumeration of powers, that the justices are in an endless search for extra-constitutional justifications and interventions to explain their activism.”
As he says in Liberty Amendments, the “Court that was given life by the Constitution cannot operate outside it. Its only rightful and lawful authority exists solely within and related to the Constitution.”
Levin points out that one of the biggest myths about judges is that they’re imbued with “greater insight, wisdom, and vision than the rest of us; that for some reason God Almighty has endowed them with superior judgment about justice and fairness. But the truth is that judges are men and women with human imperfections and frailties. Some have been brilliant, principled, and moral. Others have been mentally impaired, venal, and even racist.”
The main purpose of the proposed amendment is to return the Court to its proper role within a republican system of government.
It does the following: 1) ends the lifetime term of justices and replaces it with a single twelve-year term of office with no possibility of renomination or a second term; 2) grants Congress the authority to overturn a Supreme Court decision by a three-fifths vote of the House and Senate; and 3) grants the states authority to overturn a Supreme Court decision if three-fifths of the state legislatures pass resolutions doing so. The justices individually and the Court generally retain their independence. The justices continue to select, hear, and decide cases without interference from Congress, the executive branch, or the states. Moreover, they serve for a term longer than any two-term president and without fear of political retribution. There is no change in the Court’s core judicial functions or the independence of the Court as an institution. However, the proposed amendment provides that the final say in certain matters of overarching national significant need not be left “to a mere five lawyers, allowing Congress and/or the states to act by a supermajority vote.
As for the override processes included in the amendment, 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.
In cases that do involve significant national interest, such as the constitutionality of Obamacare, the issue becomes how to resolve them.
Under the proposed amendment, the Court is still free to take up such cases and rule on them, but Congress and/or the state legislatures will also be free to override the decision with supermajority votes. By adding the override, for the first time justices will know that their most significant majority opinions may not solely be judged by history, but by the people who must live under them, with the possible ignominy of having a ruling overridden by a supermajority of the legislative branches.
As for the establishment of term limits for Supreme Court justices, “the proposed amendment divides the sitting Supreme Court justices into three classes by reverse seniority, with the terms of the longest-serving justices expiring first.”
What do you think? Do you like this proposed amendment? Do you think it will help dismantle the centralized power of our government, or do you think it has too many problems of its own? What would you add to the amendment, or take away?
Levin’s 11 Proposed Liberty Amendments:
- Establish Congressional Term Limits
- Repeal the 17th Amendment and Restore the Senate
- Establish Term Limits for Supreme Court Justices
- Limit Federal Spending
- Limit Federal Taxing
- Limit the Federal Bureaucracy
- Promote Free Enterprise
- Protect Private Property
- Grant States Authority to Directly Amend the Constitution
- Grant States Authority to Check Congress
- Protect the Vote
(While these are Levin’s suggestions, he has stated that others could certainly be proposed.)