Saturday, June 25, 2005

On the topic of Constitutional Amendments

My whole life (up to this month) I've actually heard of 1 amendment to the Constitution get past the "talking about it" stage, and that was the so-called "Equal Rights Amendment", or the ERA. I know it got introduced. I know it got stalled and I know it died over 2 decades ago. Of course, "died" is a relative term. The amendment actually made it out of Congress and into the State legislatures and has passed 35 of the required 38 States. Sounds like that's an "any minute now" kind of situation, doesn't it? Of course, the amendment was first proposed in 1923, so the fact that 80 years later it's still not made it onto the document pretty much says "stalled" to me.

In the last 6 months, however, there have been a number of amendments proposed and some are actually making headway. The well-reported efforts to amend the Constitution to define marriage as the union between 1 man and 1 woman, a proposed amendment to change the 14th Amendment that would count only US Citizens for the purposes of apportionment, and a proposal to repeal the 22nd Amendment are all being seriously discussed. The House recently approved an amendment to ban flag burning. In all this, I find myself wondering what's happened lately that people are seriously talking about the amendment process. This is, after all, the most serious political effort this country's citizenry can undertake and it requires a massive, sustained effort to get it done. It's supposed to be very, very hard to do.

Jack Kelly over at Irish Pennants proposes 2 amendments that highlight very clearly why this kind of talk has suddenly emerged. Here's Jack:

::::::::The core of the problem is the combination of judicial review with life tenure for judges. The Supreme Court has arrogated to itself a power not mentioned in the Constitution, and -- because of life tenure -- can legislate from the bench with impunity.

There are two process amendments which would ameliorate this problem:

The first is to abolish life tenure. If federal judges were appointed for a fixed term -- say 9 years -- and permitted to serve multiple terms, but only if renominated by the president and reconfirmed by the Senate, there would be an effective means of holding judges accountable for their conduct on the bench. (Impeachment is reserved for personal misconduct, and the two-thirds vote required to remove a judge is, for all practical purposes, an insurmountable barrier for disciplining a judge for ideological overreach.)
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Term limits for the Supreme Court is something I've mentioned before and I remain in favor of it. Jack's suggestion is for a shorter term than I would have had but I'm OK with that. Jack's real fascinating concept comes in the 2nd of his proposed amendments:

::::::::The second is to do what the Founding Fathers didn't, and establish a means for resolving disputes in Constitutional interpretation among the three separate, but equal branches of the federal government.

Suppose the Constitution were amended to say that if the president, by proclamation, and the Congress, by passage of a joint resolution, disagree with a ruling of the Supreme Court, the matter would be put before the voters in the next general election. A "yes" vote would sustain the ruling of the Court; a "no" vote would overturn.
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Intriguing concept. Incredibly difficult to achieve but not impossible. And it has the benefit of putting the People back at the top of the authority structure where we're supposed to be. I believe all this talk about amendments in general is a sign of some general distrust of the judiciary. There's a sense they've gotten out of control and that they don't care. Witness the Raich and Kelo cases ruled upon in just the last month. Virtually no one I've spoke with - Democrat or Republican, Right or Left, Liberal or Conservative - has thought these two rulings made sense. The problem is that, today, there's not a damned thing you can do about it. Perhaps we need to clarify these rules so the judges (read that: Justices) will adjudicate based on the law as written, not like they think it should be.