Proposed Constitutional Amendment:
Checking the Powers of the U.S. Supreme Court
The purpose of this Constitutional Amendment is to check the powers of the United States Supreme Court.
Whenever there is a loophole in the Constitution, the proper way to fix this loophole is through an Amendment.
In this case, the loophole is that the U.S. Supreme Court has too much power. There are only seven individuals, holding office for life, who decide whether or not a law is Constitutional.
Furthermore, in recent decades, the Supreme Court has legislated from the bench (which is not their role), and has often ruled in ways that run contrary to the principles of the Constitution.
The following Constitutional Amendment will return the Supreme Court to their proper role as intended by the Authors of the Constitution.
In the proposed Amendment below, there is written both the legal language and further explanation. The legal language is the language intended for the Amendment. The further explanation is provided as necessary, to help the people understand the purpose of each clause.
The Proposed Constitutional Amendment
to Check the Powers of the U.S. Supreme Court
A. The United States Supreme Court shall not legislate from the bench. Any law created by the United States Supreme Court shall be void.
The Constitution has never granted the Supreme Court power to make laws. Therefore, all legislation issued from the Supreme Court is in fact not valid. This first clause of this Amendment will give the states clear authority to not obey laws written by judges.
There is no action that needs to be taken. These laws are void as written.
Note that "void" is a common legal concept. For example, there are circumstances where an agreement or contract is automatically void. (The specifics are specified in state statutes).
B. The United States Supreme Court shall not use any foreign source material when ruling on a case.
Some Justices in recent years have used foreign law, foreign cultures, and foreign history as part of their reasoning. This cannot be allowed.
From a strictly jurisdictional perspective, the U.S. Supreme Court is only interpreting the United States Constitution. Therefore, any material from outside the United States should not be allowed.
C. The United States Supreme Court shall strictly adhere to the 10th Amendment and to the Enumerated Powers Clause of the Constitution.
This has been one of the major problems coming out of the Supreme Court since the earliest days. The Court has slowly been giving more power to the Federal Government, and taking power from the state governments.
This clause states quite clearly that the Supreme Court must keep the powers of the Federal government limited to only those powers specifically granted (enumerated) in the Constitution.
Furthermore, this clause states that the Supreme Court must rule as the Tenth Amendment stipulates: the state legislatures have the authority to make laws on everything else not granted to the Congress in the Enumerated Powers Clause.
We shouldn't have to put this clause in here, because the Constitution is already quite clear. However, it is obvious from history that we must have this clause in an Amendment.
D. Any Supreme Court ruling can be overturned, upon 2/3 vote of the state legislatures. When a ruling involves multiple issues, each issue will be voted on separately and overturned separately.
If a Supreme Court ruling runs contrary to the principles of the Constitution, then it should be overturned. This can be done by the State Legislatures.
(This cannot be done by Congress, because Congress is a co-equal branch with the Supreme Court).
If the general population of the United States believes that the Supreme Court ruling is counter to the principles of the Constitution, then the legislature of each state can take a vote on the decision. If 2/3 of the state legislatures vote to overturn the ruling, then that ruling will not stand. Currently there are 50 states. This means that 33 states will be required to overturn the ruling.
The second sentence is there for the complex cases. Many cases which reach the Supreme Court have multiple issues. The rulings on some issues might be Constitutional, while the rulings on other issues might not be Constitutional.
The legal effect on each issue will be that the opposite decision will hold.
E. The published Supreme Court decision will be modified to specify the rulings overturned by the state legislatures. Each state legislature may add a brief statement explaining its reasoning.
It is important for everyone working with the law to know that the states have overturned a portion on the Supreme Court decision. It is also helpful for the legal community to know why the states decided to do this.
(This comes from my experience with legal research, writing, and analysis.)
F. There shall be no time requirement for state legislatures to consider and vote on Supreme Court decisions.
So as not to constrain the state legislatures, each legislature will have plenty of time to consider each case. Furthermore, states can also go back in time and take the vote on previous Supreme Court rulings which are really not Constitutional.
G. A Justice of the U.S. Supreme Court can be impeached and removed from office. The Justice may be removed only for flagrant disregard of the Constitution, as exhibited in his votes and judicial opinions. A Justice of the Supreme Court shall be impeached by 51% approval of the State Legislatures. The Justice shall be removed from office by 2/3 approval of the State Legislatures. There shall be no time limit for the 2/3 removal vote to be reached.
It is not proper for Justices to serve for life without some check on their decisions. Although their tenure is for life, this implies only 1) no elections, and 2) no term limits. However, the Justices must maintain good behavior to retain that position.
For a Justice to keep his position, he must: 1) interpret the law, not legislate, 2) make decisions based on the law, not from his personal opinion, and 3) strictly follow the the 10th Amendment and the Enumerated Powers, not expand the powers of the national government beyond the Constitutional limits.
If a Justice fails to do these things, then he is not fit for the office of Supreme Court Justice, and the people (through the state legislatures) have the right to remove him.
If a Justice is impeached, this will mean that the legislators of each state will be watching that Justice more closely. The Justice's written opinions and voting record will be examined in greater detail.
The legislators of each state will then take a vote on whether his rulings have been so far removed from the principles of the Constitution that he should be removed from office.
If 2/3 of the states legislatures make the vote for removal, then the Justice will be removed from office.
The reason for having no time limit is that the Justice continues to vote and write opinions on cases. Some state legislatures may prefer to watch his actions for awhile than call for a vote to remove. Yet, if the Justice continues to make unconstitutional rulings, then these state legislatures can call for a vote on his removal.
H. This Amendment shall be enforced by the state legislatures.
The State Legislatures are the proper authority to enforce this Amendment. It cannot be enforced by Congress or the President, because they are co-equal branches with the Supreme Court. Also, it is the state legislatures which ratify each Amendment.