Background: This is the fourth in a series of blog posts about Mark Levin’s excellent and inspiring book, The Liberty Amendments.
I hope to convey Levin's major messages and inspire others to engage in the Convention of States (COS) project and join its underlying and growing grass-roots movement to restore liberty and self-governance. I also hope to inspire you to read this book.
The prior article in the series summarizes Levin’s arguments for repealing the 17th Amendment. (Click the right arrow for a short summary.)
In a nutshell, changing the election of senators to a popular vote has distanced the Senate from We the People and our local interests in our respective States. This is despite claims to the contrary when it was proposed and ratified in 1913, which is a cautionary tale teaching us lessons today. Senators’ interests have instead become national, centralizing more power in DC and subjecting them to its corrupting influence. Restoring the vote to the State Legislatures would shift the balance of power back to the States and the local interests of We the People.
Chapter 4 proposes an amendment to limit terms of justices of the Supreme Court of the United States (SCOTUS). And to allow supermajority override of rulings by Congress or by State Legislatures within two years of the ruling. The purpose is to redress bad rulings, and address debilitated justices, of which there have been many in the history of the court as Levin demonstrates.
Levin’s proposed amendment has eight sections: (click the right arrow to read them)
- “No person may serve as Chief Justice or Associate Justice of the Supreme Court for more than a combined total of twelve years.
- Immediately upon ratification of this Amendment, Congress will organize the justices of the Supreme Court as equally as possible into three classes, with the justices assigned to each class in reverse seniority order, with the most senior justices in the earliest classes. The terms of office for the justices in the First Class will expire at the end of the fourth Year following the ratification of this Amendment, the terms for the justices of the Second Class will expire at the end of the eighth Year, and of the Third Class at the end of the twelfth Year, so that one-third of the justices may be chosen every fourth Year.
- When a vacancy occurs in the Supreme Court, the President shall nominate a new justice who, with the approval of a majority of the Senate, shall serve the remainder of the unexpired term. Justices who fill a vacancy for longer than half of an unexpired term may not be renominated to a full term.
- Upon three-fifths vote of the House of Representatives and the Senate, Congress may override a majority opinion rendered by the Supreme Court.
- The Congressional override under Section 4 is not subject to a Presidential veto and shall not be the subject of litigation or review in any Federal or State court.
- Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.
- The States’ override under Section 6 shall not be the subject of litigation or review in any Federal or State court, or oversight or interference by Congress or the President.
- Congressional or State override authority under Sections 4 and 6 must be exercised no later than twenty-four months from the date of the Supreme Court rendering its majority opinion, after which date Congress and the States are prohibited from exercising the override.”
The framers were astute observers and well aware of the long history of the frailties and corruptibility of human nature where power is concerned. They knew that structures and checks must be established that balance power. These abound in the structural design of the Constitution’s governing bodies and their duties. The judiciary was set up as independent, but Congress was responsible for all of the circuit courts as a check and balance, for example. Levin documents many more checks on the judiciary. And as you’d expect given how it perverted the structure, Levin gives a scathing rebuke of 1803’s Marbury v Madison abomination. SCOTUS ruled that they could subject to judicial review any case of any type, civil or criminal, from any circuit. It was authoritarian, self-appointed, lawless, and thus tyrannical — without any enumerated power from the Constitution, which by default reserved all powers to the States and We the People. In essence, five lawyers making a majority of nine, fallible and corruptible by their human nature, can subject We The People, the entirety of the citizenry, to any ruling they see fit. This type of self-appointed kingly authority — this unaccountable tribunal with lifetime appointments — would NEVER have passed muster with the framers. In this must-read book, Levin cites many of them and their writings from the early founding of the republic to make this crystal clear.
Presidents Abraham Lincoln and Woodrow Wilson had opposite points of view on this, as you might expect. Lincoln respected the constitutional structure and restraint, despite SCOTUS' self-anointment through its own Marbury v Madison ruling. Wilson wanted a more activist judiciary to support the President and Congress in unifying and foisting upon us a large administrative state through the federal government.
Levin quotes Lincoln’s first inauguration speech, on March 4, 1861, and Wilson in 1908: (Click the right arrow to read their quotes.)
At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal.
He then quotes Woodrow Wilson who had the opposite view. President Wilson was one of the progressive masterminds seeking to undermine individual liberty among We the People, and foist upon us a large, administrative state run by elites to rule over and micromanage us, for our own good of course. In 1908, Wilson argued the opposite of Lincoln: “The character of the process of constitutional adaption depends first of all upon the wise or unwise choice of statesmen, but ultimately and chiefly upon the option and purpose of the courts. The chief instrumentality by which the law of the Constitution has been extended to cover the facts of national development has of course been judicial interpretations,—the decisions of the courts. The process of formal amendment of the Constitution was made so difficult by the provisions of the Constitution itself that it has seldom been feasible to use it; and the difficulty of formal amendment has undoubtedly made the courts more liberal, not to say more lax, in their interpretation than they would otherwise have been. The whole business of adaption has been theirs, and they have undertaken it with open minds, sometimes even with boldness and a touch of audacity…”
Sadly for our withered republic, Wilson’s view has prevailed. Quoting Levin, “It is worth noting that Lincoln, who insisted on judicial limits, led the effort to abolish slavery. Contrarily, Wilson, who demanded an all-powerful court, enthusiastically supported segregation. Hence, in Wilson’s view, the federal judiciary was to behave as a perpetual constitutional convention—without the benefit of representation and input from the states—rewriting the Constitution as a relative handful of judges divine the merits of this or that issue, nearly always promoting the centralization and concentration of power in the federal government. Of course, the constitutional structure and amendment processes are thereby eviscerated. Yet this view has gained common acceptance and widespread adherence in legal and political circles, and the behavior is self-perpetuating, for no effective systemic mechanism has been initiated to curb or halt its imprint on the Constitution.”
An Article V Convention of States is a constitutionally provided process that can rectify this with the ratification of an amendment like Levin proposes, which would restore the balance of power. And which We the People through the State Legislatures are obligated to do.
Throughout this chapter Levin presents a veritable Rogues Gallery through time of bad cases, such as Dred Scot, fomenting the Civil War, and Wickard v Filburn allowing micromanagement of all commerce, including the choices of products and services that We the People can consume, and entrepreneurs can invent and bring to market. And of bad justices who have been psychologically unstable, cognitively unfit, inattentive, racists, anti-semites, etc. This proposed amendment would have likely addressed these illiberal rulings and justices.
Levin wraps up this chapter and his arguments with: “…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 and its independence and corruptibility.
Madison wrote eloquently on the subject, and was a keen observer of human nature. (Click the right arrow to read more.)
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.
The proposed amendment seeks to address what, in fact, has come to be.”
It’s amazing to me personally the timelessness of human nature, and how astute the framers were about our frailties, especially when we’re subjected to or choose power. And how modern people believe that somehow human nature can be overcome, and power is not a corrupting influence even when concentrated and wielded in DC by frail actors.
Please read Levin’s book for more of the fascinating historical foundation as well as the current rationale for the need to check SCOTUS and rebalance their power. And, please sign the petition and consider volunteering to join the strong and growing COS grassroots movement. Your fellow Americans need you and your State Legislatures to check politicians and government officials. This was intended and obligated through Article V, and DC has proven for decades that it will not do it themselves despite the wishes of We the People.
