Thursday, November 03, 2005

An Answer to Judicial Supremacy?

LAST REVISED 9:15 AM 11/05/05 (with yet more improvements to my proposed "nullification" amendment and a statement of its advantages)

I have in the past rejected nullification as the answer to the problem of judicial supremacy, which is that judicial supremacy leaves it to the Supreme Court to interpret the Constitution. Now, thanks to a great find by Lydia McGrew of Right Reason, I may be able to convince myself that there is a way to make nullification work. Her find is James Madison's "Report of 1800" on the Virginia Resolutions of 1798, which includes this (as quoted by McGrew):
However true, therefore, it may be, that the judicial department is, in all questions submitted to it by the forms of the Constitution, to decide in the last resort, this resort must necessarily be deemed the last in relation to the authorities of the other departments of the government; not in relation to the rights of the parties to the constitutional compact, from which the judicial, as well as the other departments, hold their delegated trusts. On any other hypothesis, the delegation of judicial power would annul the authority delegating it; and the concurrence of this department with the others in usurped powers, might subvert forever, and beyond the possible reach of any rightful remedy, the very Constitution which all were instituted to preserve.
McGrew goes on to say that
I do realize that Madison came out against state-by-state nullification of federal laws. . . . But here he certainly seems to be defending a very strong form of states' rights, even to the point of the states' having the right to decide in some effective fashion when a federal law is an unconstitutional usurpation, to act to "arrest the progress of the evil." Perhaps what Madison envisages is that the states together should decide (when a majority of states agree?) that a federal law is such a usurpation and that only then would it be nullified. But even this more cautious sort of state sovereignty (that is, more cautious than an assertion of a lone state's right to nullify a federal law) would be a far cry from anything we have now.
A lone State, or a few States acting separately, might well nullify perfectly constitutional laws. It is unlikely that a majority of States acting in concert would do so. Now the question is whether there is a way in which States could constitutionally procure such an act of nullification. The answer is "yes":
Article. V.

The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress. . . .

It seems to me that a proposed amendment on nullification might have a chance, were it to appeal to Madison's wisdom and read something like this:

1. Delegations of the States shall convene every four years for the purpose of considering revisions to and revocations of acts of Congress and/or holdings of the Supreme Court of the United States. Such conventions (hereinafter "convention of the States") may revise and/or revoke any act or acts and/or any holding or holdings, in the sole discretion of a majority of State delegations present and voting.

2. The first convention of the States shall be held in the first-odd numbered year following the ratification of this amendment. Each convention of the States shall assemble on the 5th day of July, or the first business day following, and shall stay in session for as long as there is a quorum of at least one delegate from each of 51 States when a convention is in general session, and until a convention is dissolved by a majority vote of the delegations present and attending, but not later than December 31 of the same year.

3. The first convention of the States shall be held in a place in Kansas to be determined by the most numerous house of the legislature thereof. The manner of determining the site of subsequent conventions of the States shall be determined at the first. The expenses of each convention of the States shall be defrayed by the States. Each State shall be responsible for the expenses of its delegation to each convention, and all of the attending States shall share equally in the cost of providing facilities and support for each convention.

4. The most numerous house of the legislature of each State shall select that State's delegation for each convention of the States. Each State's delegation shall vote as a unit on all matters coming before a convention, as directed by the most numerous house of that State's legislature. The officers of each convention shall be elected by a majority of the delegations appointed and attending, which delegations may also by majority vote appoint committees and establish procedures for setting the rules of the convention.

5. A majority of the delegations present and voting shall be sufficient to revise and/or revoke a specific act (or acts) of Congress or a specific holding (or holdings) of the Supreme Court of the United States, provided that:
  • the instrument of revision and/or revocation shall specifically identify the act (or acts) of Congress and/or the holding (or holdings) of the Supreme Court of the United States that are being revised and/or revoked, and then shall specifically revise and/or revoke such act, acts, holding, and/or holdings, and
  • no revision or revocation may have the effect of increasing the expenditures of the Government of the United States or of any State.
6. The revision and/or revocation of an act (or acts) of Congress and/or a holding (or holdings) of the Supreme Court of the United States shall be effective upon the publication of same by the presiding officer of the convention, whereupon the Government of the United States and all other governmental units in the United States which may be affected by any such revised and/or revoked act, acts, holding, and/or holdings shall be duty-bound to honor such revisions and/or revocations as the supreme law of the land.

7. A revised or revoked act of Congress or holding of the Supreme Court of the United States may not be further revised and/or reinstated by Congress, the Supreme Court of the United States, or convention of the States until at least eight years have passed since the publication of the last amendment or revocation of the same act or holding. This prohibition applies to any new or amended act or holding that would effectively revise or reinstate any act(s) or holding(s) originally revised or revoked by a convention of the States.

8. No branch of the Government of the United States may directly or indirectly, or overtly or covertly, attempt by any manner of means to influence the assembly of, proceedings of, or decisions of any convention of the States. No State which chooses not to send a delegation to a particular convention may directly or indirectly, or overtly or covertly, attempt by any manner of means to influence the proceedings of or decisions of said convention.

9. No branch of the Government of the United States nor any State or jurisdiction thereof shall presume to certify or challenge, by any manner of means, the decisions of any convention of the States.

10. Each convention of the States shall appoint legal counsel with authority to act in perpetuity for the convention by which said counsel was appointed. Legal counsel may and shall bring suit against the Government of the United States, any State, or the succeeding convention of the States if said entity, in counsel's opinion, shall have violated any provision of sections 6 through 9 of this amendment. Actions against the courts of the United States, including the Supreme Court thereof, shall be tried promptly in the Senate of the United States, and disposed of by a majority of the number of Senators then holding office. All other actions shall be heard and resolved promptly by the Supreme Court of the United States
The "nullification convention" -- as I like to think of it -- has the advantage of imposing an independent check on the actions of Congress and the Supreme Court. Those bodies, knowing that many or their acts and decisions might be revised or revoked every four years, would be more careful to follow the Constitution in the first place.

What we have now in the present system of "checks and balances" is one-party control of Congress, which has been the case far more often than not. Things are even worse when the party in control of Congress is the president's party, which seems to diminish if not extinguish a president's enthusiasm for the veto.

As for the Supreme Court, well, its course is unpredictable because one never knows how the political land will lie when vacancies occur, whether justices serve fixed terms or for life. But one thing is certain about the Court: its power is unchecked. That must end.

Related posts:

When Must the Executive Enforce the Law? (08/20/04)
More on the Debate about Judicial Supremacy (08/24/04)
Another Look at Judicial Supremacy (09/07/04)
Judicial Interpretation (09/16/04)
Delicious Thoughts about Federalism (11/23/04)
Is Nullification the Answer to Judicial Supremacy? (11/24/04)
The Alternative to Nullification (11/27/04)
No Way Out? (12/05/04)
The Wrong Case for Judicial Review (06/03/05)
States' Rights and Skunks (10/20/05)