I Am Not A Lawyer
I heard Neal Boortz talking about this bill before the House:
SECTION 1. SHORT TITLE.
This Act may be cited as the “Congressional Accountability for Judicial Activism Act of 2004.”
SEC. 2. CONGRESSIONAL REVERSAL OF SUPREME COURT JUDGMENTS.
The Congress may, if two thirds of each House agree, reverse a judgment of the United States Supreme Court—
(1) if that judgment is handed down after the date of the enactment of this Act; and
(2) to the extent that judgment concerns the constitutionality of an Act of Congress.
SEC. 3. PROCEDURE.
The procedure for reversing a judgment under section 2 shall be, as near as may be and consistent with the authority of each House of Congress to adopt its own rules of proceeding, the same as that used for considering whether or not to override a veto of legislation by the President.
SEC. 4. BASIS FOR ENACTMENT.
This Act is enacted pursuant to the power of Congress under article III, section 2, of the Constitution of the United States.
Now, I am not a lawyer, so naturally anything I say about this should be taken for what it’s worth. But it seems to me that, strictly speaking, this might be Constitutional.
Article III, section 2 does indeed give the give the Court appellate jurisdiction “with such Exceptions, and under such Regulations as the Congress shall make.” Furthermore, the Court’s power of judicial review isn’t enumerated in the Constitution.
Now, that said, I am NOT saying that I think this bill is a good idea (nor do I think it’ll get passed). I may not agree with every decision the Court hands out, but unfortunately the Court is about the only remaining effective check on the government. If this bill passes, there’s no check on a Congress that has a 2/3 majority. 2/3 will over-ride a veto, and 2/3 would, under this bill, over-ride the Supreme Court.
March 17th, 2004 at 9:19 pm
Yes it does seem constitutional on its surface.
& double yes that it’d be a bad idea:
As you said it would eliminate the check that the judiciary has on congress, but also it would force a showdown between the court & congress if the court decided that it was in fact unconstitutional.
One of the things that influenced (although to an unknown degree)Marbury v. Madison was the court wanting to strike something as unconstitutional, yet not wanting to go too far & have congress tell them to take a hike. I see that as having the possibility of reoccurring (but on a much larger scale) if this law is passed.
Now will it be passed? Odds are against it, but then again the odds were against a law requiring a $200 tax on $10 shotguns & $2 silencers just a few years before.
March 17th, 2004 at 9:29 pm
To quote an actual lawyer: “Indeed.”
March 17th, 2004 at 11:39 pm
Volokh is doubtful of the bill on both legal and practical grounds.
March 18th, 2004 at 9:52 am
I’m pretty sure it’s unconstitutional, but I’m not sure it’s a bad idea. Here’s why.
It’s unconstitutional is because it violates the separation of powers. It’s one thing to strip courts of jurisdiction to hear a class of cases, which Congress can clearly do. It’s quite another to give courts jurisdiction to hear a case, and to set oneself up as the supreme Supreme Court.
I’m not sure the idea is a bad one, though. Courts have been known to issue “constitutional” rulings that amount to little more than the policy preferences of five unelected judges. I don’t think the courts should be allowed to do by judicial fiat what a simple majority of elected Congressmen could not do. If “reverse” simply meant that the ruling would lose its precedential value, the only real effect would be to force the next court to treat the same issue as an issue of first impression.
Then again, given the 2/3 majority requirement, I’m not sure what the point of this bill is. If 2/3 of both houses of Congress think the Supremes got the Constitution wrong, why not just amend the Constitution?
March 18th, 2004 at 10:25 am
The Constitution says nothing about “separation of powers.”
As for amending the Constitution itself, that requires three-fourths of the state legislatures to agree. That’s a rather higher bar.
March 18th, 2004 at 2:43 pm
I’m with Xrlq on this one. I think the history of judicial activism in the 20th century makes this bill, or a similar bill, a good idea. But I think a Constitutional amendment would be necessary for such a far-reaching change. However, I must admit (to my shame) that I do not know the Constitution well enough to judge whether this bill is Constitutional or not.
March 18th, 2004 at 2:57 pm
There’s a link to the text of the Constitution on our main page, but just for fun:
http://www.usconstitution.net/
Don’t get me wrong. I’m not fan of judicial activism either, but I don’t think it’s as big a threat as an un-checked Congress. It seems to me that the Court usually says, “No, this law violates the Constitution.”
I have an open mind, though: show me enough instances where the Court has done something other than say, “No, this law violates the Constitution,” and I might change my mind. For example, I do believe some lower courts have imposed obligations on school districts and stuff in order to address segregation. Show me data like that and I might be inclined to agree.
But don’t (and I’m not saying anybody has or will) cite things like the Court striking down sodomy laws. I’d rather a Court that struck down laws left and right, than a Congress un-checked.
March 19th, 2004 at 5:04 pm
“But don’t (and I’m not saying anybody has or will) cite things like the Court striking down sodomy laws.”
Why on earth not? That’s an excellent example. The Constitution says nothing about sodomy, but the court struck down the law anyway. You may happen to like the result, but that doesn’t mean it’s proper for courts to get involved in this area. Here are some other gems:
March 19th, 2004 at 5:24 pm
You make some excellent points, and as I said, I’m willing to listen to valid data. Here are my responses:
1. Sodomy (Lawrence v. Texas?): The Constitution doesn’t have to say anything about sodomy for laws against it to be un-Constitutional. The 9th amendment, remember: not all rights are enumerated. While the SCOTUS probably didn’t cite the 9th amendment in this case, they should have. I don’t mind courts striking down laws that limit freedom; IMHO, that’s perfectly Constitutional under the 9th amendment.
2. Ninth Circuit Court: we’re talking about the SCOTUS. Otherwise, I’ll agree you have a valid point.
3. State Constitutions: the US Constitution does indeed require that all the states have “republican” forms of government.
4. US v. Miller: Agreed, bad law. Wouldn’t have happened if the Congress had not passed the NFA, though (OK, I won’t play what-if; we could what-if each other all day). In this case, the Court did indeed limit freedom, and I agree that’s bad.
5. I’m not familiar with the Slaughterhouse cases, so I will defer to you here.
6. Plessy v. Ferguson: Agreed, bad law.
7. Dred Scott: Agreed, bad law.
To sum up, I agree with you on a lot of it. I’ll also agree that it’s probably easier to get 5 judges to agree on something than 2/3 of Congress. I’m still not convinced that the SCOTUS has a worse record than Congress, but to be fair to you, I can’t say exactly how I could be convinced otherwise. Perhaps I need more study.
I will NEVER agree that striking down anti-sodomy laws and other laws that restrict freedom is either 1) a bad thing nor 2) un-Constitutional.
March 20th, 2004 at 5:49 pm
1. The Ninth Amendment refers to rights “retained” by the people, it does not give the courts carte blanche to invent brand spanking new ones every time it sees fit. Whatever rights are protected under that Amendment had to have existed at the time of its enactment. Sodomy was definitely not among them, being prohibited by common law in every state, and by statute in some.
2. I know – but there’s nothing one rogue circuit can do now that the Supreme Court can’t do at other times. Today’s Supreme Court is much saner than the Ninth Circuit, but the Burger Court wasn’t, and the Warren Court really wasn’t. Plus, the Supreme Court only reviews a tiny fraction of the cases brought to its attention, so a lot of bad law can be made by the circuit courts (e.g., all of the judicial nullifications of the Second Amendment).
3. I’m not sure what your point is here. A state whose legislators are subject to term limits is no less republican than one whose legislators are not. Besides, that case wasn’t decided on that grounds; it was decided because two arrogant judges decided that the voters didn’t know the term limits were for life.
I’m not sure it’s even relevant whether judges or legislators have the “better” track record overall. What is relevant is that we live in what is supposed to be a democratic republic, with democratically elected officials making policy decisions, and judges interpreting and applying the law. The game breaks down when judges decide they can make laws, too, just by creatively “interpreting” them to mean whatever the judge would like them to mean.
Does judicial activism sometimes produce good results? Certainly. Then again, flipping a coin would do that too, sometimes. That doesn’t make either method a good idea, or make the resulting law any more legitimate.
March 20th, 2004 at 7:12 pm
1. I disagree with your interpretation of the 9th amendment. I certainly don’t agree that it doesn’t protect the right to do things that were universally outlawed at the ratification of the Constitution.
As I said, I Am Not A Lawyer, but I believe in liberty. The 9th Amendment means that people can do WHAT THEY DAMN WELL PLEASE as long as it doesn’t hurt anybody. This includes sodomy among consenting adults. And don’t tell me sodomy hurts “society;” I don’t play that game.
3. I was picking a nit on your statement that “the Constitution – which says squat about how state governments are to be organized.” It does say something: the states have to have a republican form of government. Not really relevant to the discussion, actually.
March 22nd, 2004 at 5:32 pm
1. Based on what? How is someone to “retain” a right he never had to begin with?
I believe in liberty, too, but I don’t confuse the Constitution with a libertarian wish list. There are plenty of constitutional rights I think we should have, but that doesn’t mean that we do. There is certainly no constitutional right to do anything you want “as long as it doesn’t hurt anybody.” If there were, state and federal anti-drug laws, anti-prostitution laws, and countless other laws would all be struck down in a heartbeat.
And as my earlier examples pointed out, judges are not universally libertarian, so allowing them to “constitutionalize” their political preferences will not always lead to more liberty. Democracies may not be libertarian utopias, but they sure as hell beat oligarchies on that front.
March 22nd, 2004 at 10:17 pm
How is someone to “retain” a right he never had to begin with?
The governments in place at the time were not perfect in their respect for our rights. I think blacks and women would agree. I think it’s unreasonable to suggest that all our rights were in place in 1787.
No, I don’t think the Ninth Amendment is a “libertarian wish list.” I do think it’s clearly obvious that its purpose is to underscore the central principle of the Constitution: the individual is sovereign, and all powers of government, AT ANY LEVEL, come from the individual, and that the government’s ability to regulate should be strictly limited.
There is certainly no constitutional right to do anything you want “as long as it doesn’t hurt anybody.” If there were, state and federal anti-drug laws, anti-prostitution laws, and countless other laws would all be struck down in a heartbeat.
As they should be. But as you have pointed out so well, the courts don’t really give a damn about our rights, do they? I mean, the 2nd Amendment clearly says “SHALL NOT BE INFRINGED,” and we know how well that worked.
Our rights don’t come from the Constitution. They come from our nature as human beings. The Ninth Amendment is there to remind us that it’s impossible (and un-necessary) to enumerate every single one of those rights.
March 23rd, 2004 at 12:35 pm
Blacks and women would indeed agree that all the rights that should have been in place in 1787, weren’t. Yet its telling that these rights – not their moral rights, but their legal ones, which do derive from the Constitution – were all added by subsequent amendments, not by an expansive reading of the Ninth.
March 23rd, 2004 at 2:21 pm
I may sound like I’m quibbling, but I really think it’s wrong to say rights derive from the Constitution. Yes, we had to amend it to FORCE the States to stop violating the rights of certain people, but if I were in a snarky mood, I might say that situation could be laid at the feet of people who think that if the Constitution doesn’t explicitly say we have to let women vote, and they aren’t able to vote NOW, well then how can we say that they have a Constitutional right to vote? No Constitutional protection, so screw ’em.
I think we’ve gone back and forth on that too many times. Please don’t misunderstand me: I’m aware that if it’s not explicitly enumerated in the Constitution, you can say it’s not technically a “Constitutional right.” I’m sure you’re aware, however, that there’s a discussion in the Federalist papers about whether or not a Bill of Rights was a good idea. Madison and Hamilton (IIRC) were opposed, thinking that if a Bill of Rights were added to the Constitution, the temptation would be there for governments to restrict people to only those enumerated rights. I think there was a lot of wisdom in that, although who can say for sure if we wouldn’t have lost ALL rights sooner with no Bill?
Here’s a suggestion I have. I think it is in the best interest of gun owners to foster the following notions among the general public:
1) People ought to be free to do what they damn well please as long as no individual is harmed (and no nonsense about “society” being hurt)
2) Governments at ALL levels have no business legislating or regulating outside their small list of strictly enumerated areas of concern
In other words, I want a government that is “liberal in what it accepts, conservative in what it sends.” I’m not looking for libertarian utopia, but I’d at least like to move in that direction.
Hopefully to sum up the thread: if you can show me a solution that does a better job than the current one at filtering out the bad court decisions that increase the scope of government power, while providing a check on laws that restrict liberty, I’ll be behind it 100%. Maybe allowing Congress to reverse the court would do that. In the end, I imagine we’re not going to find out anytime soon.
March 19th, 2004 at 6:16 am
Lawmakers want ability to overrule SCOTUS
Several House lawmakers are planning to introduce a bill that would allow them to overrule the Supreme Court of the United States. With Justices like Sandra Day O’Connor, who ruled that racial discrimination is okay for another 25 years, and…