Home > Perspective

Judicial Supremacy?

by John F. Tamburo, Editor in Chief, Publisher
Originally Posted: 3/21/2005 12:39:50 PM

Should the Supreme Court be the final arbiter of Constitutional Interpretation?  That was the holding of the court in Marbury v. Madison, 1 Cranch 137, 5 U.S. 137, 2 L. Ed. 2d 60 (1803).  The Supreme Court reserved to the courts the power to invalidate laws that were "repugnant to the Constitution."  Now, however, we have seen a spate of court decisions that tend to extend that power in ways that are repugnant to the people, from whom all government derives its power.  The most offensive of these trends is the use of foreign law as persusasive or even controlling authority by the U.S. Supreme Court.  In doing so, the Supreme Court in essence places the government of the foreign country generating the authority in charge of the people of the United States.

"There is no check upon the Courts except for the appointment power of the President, with the advice and consent of the Senate."

The framers apparently did not consider the scope of a Judiciary running amok when they created our Constitution.  There is no check upon the Courts except for the appointment power of the President, with the advice and consent of the Senate.  While I love our Constitution, it is high time to reconsider this issue, and reign in the unfettered supremacy of the Judiciary.  Judicial tryanny is a very real threat to our country, and there needs to be a mechanism to check it.  The people need to be reinserted into this debate, and a Constitutional Amendment needs to be created and ratified to resolve the issue.

Conservativity proposes and supports the following amendment to the Constitution:

Any decision of the Supreme Court that affirms or strikes down a statute of the United States, or applies that statute to a certain set of facts, may be appealed to the United States Senate.  Any decision of the Supreme Court that affirms or strikes down a statute of any state, or applies that statute to a certain set of facts may be appealed to the United States Senate.  The refusal by the Supreme Court to grant a writ of certorari shall be considered a Decision when applying this amendment.  No decision of a state court may be appealed to the United States Senate.

When presented with an appeal, the Senate may choose to entertain the appeal by a vote of at least four tenths of the Senators.  No parlimentary maneuver shall be valid to block the vote to entertain such an appeal.

If the Senate chooses to entertain an appeal, the Senate, shall hear arguments on the appeal.  The Senate, by majority vote, may require the Supreme Court to further explain its decision.  The Vice President shall preside over these arguments.  The transcript of the arguments and all of the documents of the appeal shall be transmitted to the House.  The Senate and House shall vote upon the appeal by roll call. If both the House and Senate vote to grant the appeal by a four-fifths vote, the appeal shall be granted and the decision of the Supreme Court overturned.  No parlimentary maneuver shall be valid to block arguments or the final vote on any appeal.

Before the final vote on any appeal, the members of the Senate and House shall be placed on the following oath: "I do solemnly swear that I will decide this appeal in good faith and without political motivation or goals, and will to the best of my ability use my vote to preserve, protect and defend the Constitution of the United States."

If either house should fail to conduct the final vote on any appeal within ninety calendar days of argument, that house’s members shall not be paid any salary until the final vote is completed.

This is a long and complex amendment, and would in fact be the second wordiest amendment to the Constitution.  We suggest this amendment in order to put the people in charge.

Are there risks?  In theory, 80% of both the House and Senate could rescind many civil rights.  But, right now, nine lifetime appointees could do the exact same thing by fiat.  It has been done already.  The courts have eviscerated the second amendment in this manner.  Campaign Finance Reform attempted to eviscerate the First Amendment.  The rights of the states to set penalties for criminal offenses committed wholly within their borders are compromised.

Nonetheless, it is a risky thing to amend the Constitution.  Ask those who enacted the Eighteenth Amendment (prohibition), the most foolhardy thing this country has ever done to that sacred document.  In trying to craft a proposed amendment, I looked at this Senate appeal process as something that could bog the Senate down.  So, the Senate could constitute a committee to review appeals and decide whether or not the appeal must be heard by the Congress.  Then appeals that are unworthy could be dismissed en masse, even in one bill.  Worthy appeals could then be voted upon to grant review.

Once review has been granted, there would be arguments, and the V.P. would be there to keep order.  After that, it would take 80% of both houses to reverse the Supreme Court.  Some will think that this is too tough.  However, even with a special oath, we know that politics will influence these votes.  A very high threshold will keep a voting block with a political agenda from wresting control of the legal process away from Constitutional controls.

The time is now to proceed with some plan to keep a liberal judiciary from submitting the American people to a political agenda and to the laws of foreign countries.