The Liberty Amendments: Restoring the American Republic (9 page)

Consider a few of the stunning personalities who have served
on the Court: John Rutledge, a 1795 recess appointment as the nation’s second chief justice, was considered mentally unstable; Henry Brockholst Livingston, appointed in 1806, killed a man in a duel before his appointment; Henry Baldwin, appointed in 1830, was reportedly insane; Robert C. Grier, appointed in 1846, became mentally incapacitated yet continued his duties on the Court; Nathan Clifford, appointed in 1858, suffered a stroke and became a “babbling idiot”; Stephen J. Field, appointed in 1863, gradually lost his mind; Joseph McKenna, appointed in 1897, became mentally unstable and resisted retirement; James C. McReynolds, appointed in 1914 (by Woodrow Wilson), was a notorious anti-Semite and racist; Hugo Black, appointed in 1937 (by Franklin Roosevelt), had been a member of the Ku Klux Klan and remained on the Court despite his declining mental health; William O. Douglas, appointed in 1939, allegedly sexually assaulted a flight attendant in his chambers and remained on the Court despite suffering an incapacitating stroke; Abe Fortas, appointed in 1965, continued to advise President Lyndon Johnson after his appointment and supplemented his Court salary from a foundation set up by a convicted stock swindler, and was eventually forced to resign; Thurgood Marshall, appointed in 1967, in his waning years apparently spent many hours watching television in his chambers, especially soap operas.
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The mechanisms the Framers put into operation relating to the judiciary were designed to achieve certain vital purposes that would, in turn, help ensure the successful operation of the federal government they established. They knew the sordid history of monarchs and bureaucracies compromising jurisprudence to serve political ambitions, and they did not want that result in the United States. They sought the independence of the judiciary to
help establish and preserve the integrity of the federal judicial system and, by extension, the federal government itself.

There have been many great justices and rulings. But the power the Supreme Court exercises today is not the authority contemplated or granted by the Framers (incidentally, the same can be said of the other branches). It is not sanctioned in the Constitution. It is not consonant with republican government. Moreover, impeachment is mostly a dead letter, except in outlandish cases of criminal misbehavior. However, it is clear that the notion of judicial review has long been acquiesced to and is now ingrained in such a way as to make its uprooting imprudent if not impossible. That said, there is no reason a great society must surrender, for all time and in all cases, to a judicial oligarchy exercising supreme power over the other federal branches and the states. The Supreme Court is to be independent in its judicial deliberations but not supreme in all matters, leaving society without recourse.

The proposed amendment seeks to return the Court to its proper foundational 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.

There are also important breakwaters to prevent potential abuse of the override processes included in the language of the proposed amendment. 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. Even now the Court takes up only a small fraction of the thousands of cases appealed to it each year, leaving conflicts and issues within and between judicial circuits unresolved all the time.

Nonetheless, there are always certain cases involving significant national matters, such as the constitutionality of the Obamacare law, that require resolution. The issue, then, is 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. The override also has the benefit of requiring a fairly substantial societal consensus in order to be successfully invoked in the first place. This is also the primary reason the proposed amendment proscribes a presidential veto of an override.

Furthermore, as explained, override attempts would be time-limited. Consequently, a party or faction out of power that suddenly wins a broad mandate cannot go back over several years and override long-settled issues. The time limit also means that issues on which the override is invoked must be genuinely problematic, and not merely pursued as a political expedient. The Supreme Court typically decides more than one hundred cases a year. And the time, financial resources, manpower, and political capital necessary to shepherd an override through to reality would require sound judgment on the selection of matters worthy of focused efforts.

Finally, in transitioning from the current life tenure of a justice to the term limit, the proposed amendment’s mechanism is borrowed from Article I, Section 2 of the Constitution, and the Framers’ method of putting the Senate on a cycle in which one-third of the senators are chosen every two years. After the first election in 1789, the senators were organized into three classes, with the terms of the senators in the first class expiring in two years; the terms of the senators in the second class expiring in four years; and the terms of the senators in the third class expiring in six years.

Applying this concept to the Supreme Court, 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. For example, if the proposed amendment
applied today, the first class would consist of Associate Justices Antonin Scalia, Anthony Kennedy, and Clarence Thomas, whose terms would expire in four years. The second class would consist of Associate Justices Ruth Bader Ginsburg and Stephen Breyer and Chief Justice John Roberts, whose terms would expire in eight years. And the third class would consist of Associate Justices Samuel Alito, Sonia Sotomayor, and Elena Kagan, whose terms would expire in twelve years.

In such a scenario, conservatives might object that three of the originalist members of the Court would be lost in the first wave of term-limited justices. A closer examination reveals more complexity. Of the three justices in the first class, Scalia and Kennedy are both seventy-seven years old. Thomas is sixty-five. By the time the state convention process would be organized by two-thirds of the states and its work completed, followed by the state ratification process—which requires approval of the amendments by a three-fourths supermajority of the states—it is highly unlikely those three justices would still be on the Court. The process underscores that this proposed amendment is not about individual justices or political advantage but strengthening the republican nature of our government.

James Madison and his fellow Convention delegates wisely settled on an independent judiciary, but they were troubled about the prospect of a supreme judiciary. As Madison later wrote, “As the courts are generally the last in making the decision, it results to them, by refusing or not refusing to execute a law, to stamp it with its final character. This makes the Judiciary department paramount in fact to the Legislature, which was never intended, and can never be proper.”
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The proposed amendment seeks to address what, in fact, has come to be.

SECTION 1: Congress shall adopt a preliminary fiscal year budget no later than the first Monday in May for the following fiscal year, and submit said budget to the President for consideration.

SECTION 2: Shall Congress fail to adopt a final fiscal year budget prior to the start of each fiscal year, which shall commence on October 1 of each year, and shall the President fail to sign said budget into law, an automatic, across-the-board, 5 percent reduction in expenditures from the prior year’s fiscal budget shall be imposed for the fiscal year in which a budget has not been adopted.

SECTION 3: Total outlays of the United States Government for any fiscal year shall not exceed its receipts for that fiscal year.

SECTION 4: Total outlays of the United States Government for each fiscal year shall not exceed 17.5 percent of the Nation’s gross domestic product for the previous calendar year.

SECTION 5: Total receipts shall include all receipts of the United States Government but shall not include those derived from borrowing. Total outlays shall include all outlays of the United States Government except those for the repayment of debt principal.

SECTION 6: Congress may provide for a one-year suspension of one or more of the preceding sections in this Article by a three-fifths vote of both Houses of Congress, provided the vote is conducted by roll call and sets forth the specific excess of outlays over receipts or outlays over 17.5 percent of the Nation’s gross domestic product.

SECTION 7: The limit on the debt of the United States held by the public shall not be increased unless three-fifths of both Houses of Congress shall provide for such an increase by roll call vote.

SECTION 8: This Amendment shall take effect in the fourth fiscal year after its ratification.

SECTION 1: Congress shall not collect more than 15 percent of a person’s annual income, from whatever source derived. “Person” shall include natural and legal persons.

SECTION 2: The deadline for filing federal income tax returns shall be the day before the date set for elections to federal office.

SECTION 3: Congress shall not collect tax on a decedent’s estate.

SECTION 4: Congress shall not institute a value-added tax or national sales tax or any other tax in kind or form.

SECTION 5: This Amendment shall take effect in the fourth fiscal year after its ratification.

The nation is teetering on financial ruin due to the unconscionable profligate spending, borrowing, taxing, and money printing by the federal government. Several decades ago, Dr. Milton Friedman, an iconic economist and Nobel laureate, concluded that “it is not in the interest of a legislator to vote against a particular appropriation bill if that vote would create strong enemies while a vote in its favor would alienate few supporters. That is why simply electing the right people is not a solution.”
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The solution is to remove by constitutional design that which cannot be accomplished statutorily—the overwhelming political incentive for reckless government spending by the governing masterminds.

For more than four years, since April 29, 2009, Congress and
the president have refused to adopt a budget. Both branches were in violation of the Congressional Budget and Impoundment Control Act of 1974 (Budget Act).
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And during this period and since, the federal government has unleashed a spending blitz unparalleled in American history.

The Budget Act sets forth a budgeting process requiring the president to propose a budget in February; Congress to adopt an annual budget resolution setting forth its budget blueprint; Congress to subsequently pass a budget resolution laying out timetables for completing a final budget; and a final budget, which the president either signs or vetoes.
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However, from fiscal year 2010 through the early part of 2013 Congress passed seventeen continuing resolutions, which are stopgap funding measures, because the Senate refused to comply with the Budget Act’s requirements.

In addition to short-term spending bills, Congress has also legislated by adopting massive omnibus bills that even voting members cannot comprehend. For example, in 1989, Congress passed a budget reconciliation act that one prominent member of Congress described as follows: “So voluminous was this monster bill that it was hauled into the chamber in an oversized box. Its thousands of pages, which the clerk hadn’t even time to number, had to be tied together with rope, like newspapers bundled for recycling. While reading it was obviously out of the question, it’s true that I was permitted to walk around the box and gaze upon it from several angles, and even to touch it.”
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Rather than enforcing budgetary and spending discipline, Congress and the president have raised the debt limit eleven times between 2001 and 2012, increasing massively the federal debt by trillions of dollars.
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Clearly, Congress and the president knowingly subvert their own legal budgetary requirements for the purpose of increasing spending while attempting to mask political responsibility from the public. They are dragging the nation into a financial death spiral. Their opportunism and dysfunction threaten a financial implosion that presages the eventual collapse of the nation’s currency and economy, resulting in unimaginable devastation and misery. Therefore, restraint must be imposed on a broken federal system by constitutional amendment and, if possible, promptly.