The Liberty Amendments: Restoring the American Republic (7 page)

SECTION 5: 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.

SECTION 6: Upon three-fifths vote of the several state legislatures, the States may override a majority opinion rendered by the Supreme Court.

SECTION 7: 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.

SECTION 8: 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.

T
HE
F
RAMERS OF THE
Constitution anticipated many things. They were concerned about a national executive—the president—becoming a tyrant, so they created a powerful legislature and an independent judiciary to slake presidential ambitions. They worried about the momentary passions of a tempestuous time inflaming the populous and, by extension, the Congress, so they created the presidential veto, and divided legislative authority between a House of Representatives selected by the people and a Senate chosen by the state legislatures. Some of the Framers also feared a too-autonomous judiciary that would grow in power and purview and, eventually, swallow the other branches of the federal government and the states. To protect against this, they granted Congress the power to define both the size of the Supreme Court and the makeup of the federal court system below the High Court.
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And, with only a few exceptions, they also granted Congress the power to determine the original and appellate jurisdictions of every federal court.

In addition, to ensure that both the executive and judicial branches did not become sinecures for corrupt officeholders, they granted Congress the power to impeach and remove judges and most federal officials up to and including the president in certain cases.
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Moreover, in order to help control the scope and reach of the central government and safeguard state sovereignty, they enumerated in detail the powers and limitations of federal authority both in the Constitution itself and what would become the Bill of Rights—the first ten amendments approved by the First Congress, and ratified by the states in 1791.

Beyond freedom from undue influence, the Framers also realized that the judiciary’s independence had to come with some
significant strings attached, ensuring it fit into a republican form of government. Federal judges were expected to adjudicate “cases and controversies” that arose under federal criminal law and civil statutes—and exercise very little authority beyond that narrow scope. Contrary to the opinions of some notable Supreme Court justices and others down through the years, the reason the Framers did not specifically grant to the Supreme Court the much broader authority to judge the constitutionality of federal laws is that there was strong sentiment that such a function was well outside the authority of judges. This was a primary reason Congress was granted authority to structure the courts.

In particular, on June 4, 1787, at the Constitutional Convention, the delegates took up the issue of granting the national executive (the title of president had not yet been adopted) the ability to “give a negative” (veto) to any act of the national legislature. Some delegates, including James Madison, initially favored a “council of revision” made up of the executive and judiciary, which could reject acts of the legislature. The convention quickly rejected the idea of including the judiciary in such a review process. They did not want judges involved in the legislative process, thereby reviewing laws they might eventually have to adjudicate. Instead, the delegates came up with the presidential veto.
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Subsequent debate centered on the size of the majorities in the branches of the legislature necessary to override a veto, and whether to even include the possibility of the legislature overriding a veto at all. Alexander Hamilton thought the executive should be given an absolute negative over legislative acts. Pennsylvania’s James Wilson observed that the mere presence of an executive veto would cause it to be seldom used, even with a legislative override option. “The Legislature would know that such
a power existed, and would refrain from such laws, as it would be sure to defeat. [The veto’s] silent operation would therefore preserve harmony and prevent mischief.”
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The point is that the Framers clearly intended to create intrinsic limitations on the ability of any one branch or level of government to have unanswered authority over the other. Moreover, there can be no doubt that were the conditions that exist today—with the Supreme Court involving itself in minute and endless facets of everyday life—known to the convention delegates, they would undoubtedly endorse a check on judicial authority.

In
Federalist
78, Hamilton wrote, in part:

Whoever attentively considers the different departments of power must perceive, that, in a government in which they are separated from each other, the judiciary, from the nature of its functions, will always be the least dangerous to the political rights of the Constitution; because it will be least in a capacity to annoy or injure them. The Executive not only dispenses the honors, but holds the sword of the community. The legislature not only commands the purse, but prescribes the rules by which the duties and rights of every citizen are to be regulated. The judiciary, on the contrary, has no influence over either the sword or the purse; no direction either of the strength or of the wealth of the society; and can take no active resolution whatever. It may truly be said to have neither FORCE nor WILL, but merely judgment; and must ultimately depend upon the aid of the executive arm even for the efficacy of its judgments. This simple view of the matter suggests several important consequences. It proves incontestably, that the judiciary is beyond
comparison the weakest of the three departments of power; that it can never attack with success either of the other two; and that all possible care is requisite to enable it to defend itself against their attacks. It equally proves, that though individual oppression may now and then proceed from the courts of justice, the general liberty of the people can never be endangered from that quarter; I mean so long as the judiciary remains truly distinct from both the legislature and the Executive. . . .
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In
Anti-Federalist
11, Brutus, believed to be New York judge and Anti-Federalist Robert Yates, one of the most articulate opponents of the Constitution, was alarmed. He warned:

The real effect of this system of government, will therefore be brought home to the feelings of the people, through the medium of the judicial power. It is, moreover, of great importance, to examine with care the nature and extent of the judicial power, because those who are to be vested with it, are to be placed in a situation altogether unprecedented in a free country. They are to be rendered totally independent, both of the people and the legislature. . . . No errors they may commit can be corrected by any power above them, if any such power there be, nor can they be removed from office for making ever so many erroneous adjudications. . . .
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In addition, Yates made this prediction in
Anti-Federalist
15:

Perhaps nothing could have been better conceived to facilitate the abolition of the state governments than the
constitution of the judicial. They will be able to extend the limits of the general government gradually, and by insensible degrees, and to accommodate themselves to the temper of the people. Their decisions on the meaning of the constitution will commonly take place in cases which arise between individuals, with which the public will not be generally acquainted; one adjudication will form a precedent to the next, and this to a following one.
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Yates, who died in 1801, did not live to see the 1803 Supreme Court decision in
Marbury v. Madison
. No doubt he would have been appalled. In his decision, Chief Justice John Marshall wrote, in part, “The judicial power of the United States is extended to all cases arising under the constitution. Could it be the intention of those who gave this power, to say that, in using it, the constitution should not be looked into? That a case arising under the constitution should be decided without examining the instrument under which it arises? This is too extravagant to be maintained.”
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It is true Marshall wrote that the judiciary should exercise “judicial review” prudently; however, this was of little consolation. By claiming authority not specifically granted by the Constitution, abuses of power would certainly follow, as they have.

Although the decision has been lauded by many scholars of all philosophical stripes, the fact is that the ruling altered and expanded the Court’s limited authority to adjudicate civil disputes and criminal complaints into a judicial oligarchy with few institutional limits on its power. And the extent to which there are limits depends on the forbearance of the very courts that snatched the authority in the first place. It would seem that if a Supreme Court majority of five lawyers has the final word on constitutional
matters, then governance comes down to selecting five lawyers. This is obviously contrary to the Framers’ intent. Had the Constitutional Convention conferred such authority on a handful of individuals, which it most assuredly did not, it is indeed doubtful it would have conferred life terms upon them and provided no effective recourse.

No less than Thomas Jefferson, the original author of the Declaration of Independence, was furious about the
Marbury
decision. In a letter to Abigail Adams, John Adams’s wife, Jefferson wrote a year after
Marbury
was issued, “The Constitution . . . meant that its coordinate branches should be checks on each other. But the opinion which gives to the judges the right to decide what laws are constitutional and what not, not only for themselves in their own sphere of action but for the Legislature and Executive also in their spheres, would make the Judiciary a despotic branch.”
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Jefferson’s concerns with judicial power became more pronounced as he passed into old age. In 1820, he wrote William Jarvis:

[T]o consider judges as the ultimate arbiters of all constitutional questions [is] a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges are as honest as other men and not more so. They have with others the same passions for party, for power, and the privilege of their corps . . . and their power the more dangerous as they are in office for life and not responsible, as the other functionaries are, to the elective control. The Constitution has erected no such single tribunal, knowing that to whatever hands confided, with the corruptions of time and party, its members would become despots.
It has more wisely made all the departments co-equal and co-sovereign within themselves.
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Decades later, President Abraham Lincoln would have to grapple with the Supreme Court’s 1856 decision in the notorious
Dred Scott v. Sandford
case, which was an abomination. The issues included whether Scott, a slave, could sue for his freedom as a longtime resident of a free territory (the territories of the Louisiana Purchase) and whether Congress’s ban of slavery in those territories was constitutional. Chief Justice Roger Taney, who held that office from 1836 until his death in 1864, argued for the majority of the Court’s members that Scott was not a citizen, for citizenship had been confined to the white race and, therefore, Scott had no standing to sue. Moreover, he declared that Congress did not have constitutional authority to ban slavery in those territories, for it denied slaveholders property without due process.
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Should Taney and the Court have had the final word? The
Dred Scott
decision was a major impetus for the Civil War.

On March 4, 1861, during his first inauguration speech, Lincoln said:

I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with
the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. 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. Nor is there in this view any assault upon the court or the judges. It is a duty from which they may not shrink to decide cases properly brought before them, and it is no fault of theirs if others seek to turn their decisions to political purposes.
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Less than fifty years later, Woodrow Wilson, a leader of the Progressive movement who served as the twenty-eighth president from 1913 to 1921, would take the opposite view. In fact, he endorsed flat-out judicial tyranny. In 1908, Wilson argued:

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. . . .
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