On this 226th anniversary of the United States Constitution, I'm re-posting my suggestion for a new amendment. I realize it won't go anywhere, but I still think it's a good idea. Many so-called "Originalists," who insist that Justices on the Supreme Court should interpret only exactly what is written in the United States Constitution and no more, fail to recognize that nothing in that sacred document gives the Supreme Court the right to rule on the constitutionality of legislation. Activist Chief Justice John Marshall-- legislating from the bench--assumed that right in the Marbury v. Madison Case; and that is all the more reason I contend that it is undemocratic for the Supreme Court to reach decisions by a simple five/four majority when overruling the two other co-equal branches of government.
PROPOSAL FOR A NEW CONSTITUTIONAL AMENDMENT
Oh, no! Not another nut attempting to tamper with the Constitution! Don’t people realize that our Republic has endured so long in part because our Founding Fathers bequeathed to us an elegantly sparse Constitution? Why clutter it up with unnecessary amendments!
At the outset, I must confess, I am not a supporter of the amendment to protect the flag. Yes, I do revere the flag of the United States of America. Some of my fondest memories from childhood were raising and lowering the flag at my maternal grandfather's summer house in the Thousand Islands on the Saint Lawrence River near Alexandria Bay, New York. We had an elaborate ceremony at the beginning and end of each day. We were extremely diligent not to let the flag touch the ground. We folded it carefully in military triangle fashion. (Curiously, I recall some regulation, which specified that burning was the only lawful way to dispose of an old, tattered flag). My grandfather had been a staunchly conservative Republican Congressman from Pennsylvania during the New Deal. I am one of his two namesakes. He and I would most likely have disagreed on most issues; but admiration for our flag is one on which we did agree. (Then there are the mythic images of Iwo Jima, Fort McHenry, and ‘Old Glory’ on the moon).
My reason for opposition to the proposed amendment is: despite the opening words of the Pledge of Allegiance, I do not consider that I actually pledge allegiance to the flag— a piece of cloth— instead, I pledge allegiance to the country, to the constitution, to the concepts which establish our liberty. And one of those concepts is freedom of expression as protected in the First Amendment. I consider the proposed flag amendment to be so much political posturing. I'm not aware of any current outbreaks of flag burning. But even more important than protecting the flag, is redefining a proper balance between the three branches of the Federal Government.
Recently, there have been a number of five-to-four decisions by the Supreme Court, which ruled several U.S. laws to be unconstitutional. On the face of it, it seems to me, that a one-vote majority, by a supposedly third co-equal branch of government over-ruling legislation passed and signed by two other co-equal branches of government, is structurally out of balance. But you say, doesn’t the President, as a majority of one, have the authority to veto legislation passed by the two houses of Congress? Yes, but Article I, Section 7 of the Constitution clearly defines a procedure for the Congress to override the President’s veto by means of a two thirds vote in both houses.
The Supreme Court, on the other hand, has no such specific procedure defined in Article III. Section 2 of Article III apparently gives jurisdiction over Laws of the United States to the Supreme Court; but it wasn’t until fourteen years after ratification— a time when many, if not most, of the original framers were still alive to be consulted about their intent— that the doctrine of judicial review was asserted in the 1803 decision by Chief Justice John Marshall in the seminal Marbury v. Madison case.
The doctrine of judicial review is clearly established, so why consider a constitutional amendment on the matter 205 years later? Let me offer an example. It wasn’t until 126 years after the assertion of a Vice-President to be called “President” instead of “Acting-President” when succeeding in mid-term, that an amendment clearly defined what had already been established in practice. That was done in Section 1 of the 25th Amendment ratified in 1967. Had William Henry Harrison died in the last year of his term rather than near the end of his first month in office, Vice-President Tyler might have been content to have been addressed as “Acting-President” (as, indeed, Vladimir Putin did in the Russian Republic). Forty-seven months was apparently too long. Besides, Tyler held the office, and so appropriated the title. The precedent was set and used six more times before the 25th Amendment legalized the title as part of the procedure for selecting a new Vice-President. So here goes my proposed amendment for clarifying judicial review.
28th Amendment to the Constitution of the United States of America
Section 1. The Supreme Court of the United States retains authority for judicial review of all United States Laws as passed by the two houses of Congress and signed by the President, or passed by two thirds override of a Presidential veto.
Section 2. To render a United States Law unconstitutional, the Supreme Court of the United States must decide by an affirmative vote of at least two thirds of the justices on the Supreme Court.
Section 3. This amendment does not apply retroactively to previously adjudicated cases, nor to other jurisdictions enumerated in Article III.
Under the current configuration, a two-thirds vote by the Supreme Court would be six to three— or two to one— surely a more powerful and a greater moral authority for overturning legislation than a simple majority. Linda Greenhouse, in her report about the May 15, 2000, five-to-four vote overturning the Violence Against Women Act, wrote in the New York Times published May 17, 2000,that the decision in the United States v. Morrison represents the “…court’s new federalism jurisprudence….: holding Congress to its limited and enumerated powers.”
The problem is, there is no countering limited and enumerated power defined for the court, itself, in the matter of judicial review of legislation. For all the criticism of the so-called activist Warren Court, many of its most controversial decisions were passed unanimously. This proposed amendment falls short of that, but is an attempt to set aright a structural imbalance between three co-equal branches of government; so that a single Supreme Court Justice would not be able to invalidate an established law simply by majority vote.
Granted, I might regret some future five-to-four vote, which would not prevail because of this new amendment. So be it. The procedure, at least, would be appropriate; and a more proper balance, established between the three branches of the Federal Government.
Robert F. Rich Bell
Grandson of The Hon. Robert F. Rich
Member of Congress
16th Congressional District of Pennsylvania 1931-51