A Federal Judicial Amendment
( I hereby place this proposal in the public domain. It may be
published in whole or in part on the Internet or in commercial
publications without the need for attirbution or compensation.)
Section 1.The Congress, the President and the Supreme Court shall have equal authority to interpret this Constitution. No branch may impose its interpretation on the others nor may the Congress, President or Supreme Court order each other to handle its powers in a specific way. However, the Supreme Court’s interpretations shall be binding on all inferior federal courts and upon all state courts. The Congress shall have exclusive authority to define social institutions allowed by this Constitution.
Section 2. To insure uniformity of federal laws, no inferior federal court may interpret this Constitution or any Act of Congress nor may any opinion of any inferior court be used for a decision in any other case. Any judge of an inferior court who believes a law is unconstitutional may hear arguments and forward such arguments to the Supreme Court for its consideration, but shall treat the law as valid unless informed otherwise by the Supreme Court. An inferior court may request an opinion from the Supreme Court about how to interpret an Act of Congress.
Section 3. Only the highest court in any state may interpret its constitution. No state court may interpret this Constitution or attempt to define any rights that it guarantees, nor may any state court define terms that have been defined by Congress or the Supreme Court. No state court may order the legislative or executive branch of the state to take any specific action.
Section 4. If the Supreme Court determines an Act of Congress unconstitutional, its only action shall be to decline prosecution of those charged under the Act or to refuse to take action authorized by the Act. Such ruling shall only affect the specific provision of the Act that conflicts with the Constitution. Such an Act shall remain as a federal statute, but the questioned shall be unenforceable by the inferior federal courts unless a subsequent Supreme Court ruling allows its enforcement. The Judicial Branch may require state governments to take actions to comply with federal law, but may not exercise functions at the state level that are assigned to the Congress or President at the national level. The Judicial Branch may only authorize the Executive Branch to exercise state government functions.
Section 5. An Act of Congress shall include a statement indicating
what provision in this
Constitution authorizes the Act. An Act may include an opinion based in
part on current social
or political theories to justify the Act. Congress may by Joint
Resolution overturn what it considers a misinterpretation of an Act of
Congress by the Supreme Court provided that such Joint Resolution is
passed within one year of the questioned decision.
Section 6. A Supreme Court ruling that an Act of Congress is unconstitutional shall require a two third’s majority with such majority consisting of Justices appointed by at least two different Presidents, but a state law may be ruled to violate the Constitution or an Act of Congress by a simple majority. A ruling of unconstitutionality shall be based solely on the Constitution and its amendments or upon statements made proposing the Constitution or the specific amendments. The Court may not cite previous rulings by itself or by state courts to determine the meaning of the Constitution, nor may it cite current social or political theories unless they are mentioned in the Act.
Section 7. The Supreme Court shall have the power to regulate, discipline and remove Judges of inferior Federal Courts. The Court may by a simple majority remove a Judge who has been charged with criminal acts or require the retirement of a Judge who is no longer able to fulfill the duties of the office due to mental illness or physical disability. The Court may by a two-third’s majority remove or suspend a Judge who has engaged in behavior that places the Judicial Branch in ill repute or who has consistently ignored the rulings of the Court.
Section 8. In nominating a new Justice to the Supreme Court, the President shall present the Senate with the names of three attorneys. If the Senate shall not have approved one of the nominees by a majority vote within six months or the date at which any resignation takes place(which ever is longer), the President may appoint one nominee to serve until the next presidential inauguration. For inferior courts, the President shall present the Senate with the name of one nominee. If the Senate shall not have voted yea or nay within one year, the President may appoint the nominee to serve until the next presidential inauguration. Except that no new nomination may be made between September 1 of a presidential election year and the ensuing presidential inauguration.
Commentary
Section 1 - A myth has developed that the Supreme Court has some unique special power to interpret the Constitution. The Constitution contains no provision giving the Court such a power. When Chief Justice John Marshall asserted that the Court could interpret the Constitution in the case of Marbury v. Madison, the only provision he justification he could cite was the oath Supreme Court justices took to support and defend the Constitution. The President and members of Congress take the same oath and thus must have the same authority. Early presidents believed that concerns about constitutionality provided the only justification for vetoing acts of Congress. The framers of the Constitution wanted to create a system with three equal branches of government. The branches of government cannot be equal if one has the authority to tell the others how to use the powers of that branch.
Section 2 - This section is self explanatory. The United States need to have a uniform national law. It cannot have separate versions of federal laws applied arbitrarily to different regions of the country. Americans sometimes repeat the myth that the United States is “a nation of laws not of men”. A nation in which individual judges and appellate courts can redefine the law to suit themselves is “a nation of men not of laws” because individual judges control the law rather than having the law control individual judges.
Section 3 - This section applies the principles of Sections 1 and 2 to state government. Some of the worst offenses by the judiciary have occurred at the state level. The Kansas Supreme Court has recently claimed that it can order the Kansas legislature to increase spending on education. How can the Kansas Court have a power to order spending that British monarchs haven’t had for centuries? In Florida, Judge George Greer has manufactured something he calls “the right to privacy” to allow a husband who has violated his marriage contract with his wife to have her starved to death because she cannot communicate her own wishes. Greer has ignored numerous state laws as well as the Fourteenth Amendment to the U.S. Constitution which guarantees equal protection of the laws to all Americans including those who cannot communicate their wishes. State courts are clearly out of control and have become a major threat to the principle of representative government.
Section 4 - This section returns the Court to the principle of Marbury v. Madison that the Court cannot be forced to act in a way that its members believe would violate the Constitution. The Court can refuse to convict someone for a law the Court believes is unconstitutional but does not have authority to overturn Congress’ lawmaking power. The judiciary is also assigned the responsibility to insure that states cannot create their own laws which conflict with federal law which is paramount, but judges cannot become feudal lords capable of running state and local government agencies as they see fit.
Section 5 - Congress should provide its own opinion about why an act is constitutional to force the Court to recognize that Congress can have such an opinion.
Section 6 - Requiring a 2/3's majority limits the frequency of Court decisions against Congressional legislation. Although it would be unlikely for six justices to be appointed by a single president, such a situation could allow a president to dominate after leaving office. The Supreme Court should rule only on the law not on the personal political opinions of its members. Opinions on current theories should be limited to those who are elected to office.
Section 7 - The Supreme Court should be able to police the lower courts. Congress is often reluctant to impeach judges who are unfit for office.
Section 8 - Judicial appointments have become more controversial in recent years with the result that appointments are being delayed even when the minority party lacks the votes to prevent confirmation of nominees. Having a President present three nominees for the Supreme Court will be more likely to insure that one will be nominated faster than would be the case if nominees were presented one at a time. By requiring a vote a Senate minority cannot simply delay a vote to prevent confirmation.