Un-Tipping the Scales Part II: The Judicial Powers Checks and Balances Amendment
One Founding Father saw it coming:
“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.” — Letter to Mrs. John Adams, Nov. 1804
“You seem to consider the judges the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy. Our judges … and their power [are] the more dangerous as they are in office for life, and are 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 … When the legislative or executive functionaries act unconstitutionally, they are responsible to the people in their elective capacity. The exemption of the judges from that is quite dangerous enough. I know of no safe depository of the ultimate powers of the society, but the people themselves.” — Letter to Mr. Jarvis, Sept, 1820
What Thomas Jefferson warned of has become a reality, today. Just look at recent Health Care and Immigration ruling. Today’s courts have become a mockery of their original design. The Supreme Court has ruled on the Constitutionality of US laws based upon laws of foreign countries. In addition, courts are throwing out laws which were placed into effect by direct vote of the people. The Court has also recently expanded the powers of government in immanent domain to the point where the government can take your property if it will increase their taxes. No one can truthfully say that the courts are still for the rights of individuals; they are for large statist government.
In addition, the selection of permanent judges affords no process other than impeachment for the removal of bad judges. What recourse is there when a judge consistently shows disdain for the will of the people and implementing their own agenda or a foreign ideology? Yet, at the same time, justice and the protection of natural rights should be stable and not ebbing and flowing with the political tide. What can be done to repair the courts from their tragic state? Jefferson had it right when he said, “I know of no safe depository of the ultimate powers of the society, but the people themselves.” But in order to properly perform this role, the people need to be well-informed as to the conduct and rulings of the judges, something that is not widely disseminated today.
To balance out the judicial powers, I propose the following amendment:
The following shall be added to Article III, Section 1:
During every tenth year of a federal judge’s confirmation, their appointment to their position shall be renewed through a vote of affirmation by the people within their jurisdiction. The conduct and ruling record of the judge who is subject to renewal shall be published to all voters no later than 3 months prior to the vote of affirmation. A judge failing the vote of affirmation shall be assigned no additional cases and vacate their post upon completion of all active trials under their jurisdiction and without undue delay. A replacement shall be appointed by normal processes within 90 days of the vote. The Supreme Court Judges shall have their affirmation vote at the next federal election cycle with the incoming officials appointing and confirming their replacement if they fail confirmation.
Section 4 shall be added:
The United States is sovereign in its courts. Only laws, writings and evidence originating within the United States shall be used in the determination of the constitutionality of any law. No foreign laws, unsigned treaties or other foreign documents may be used as justification in a case ruling. A decision in the constitutionality of a law has no impact other than to declare that particular law constitutional or not. Opinions of judges serve only as guidance for future legislation.
These amendments will better define the authority of the courts and restrict the courts to only rule on the legitimacy of a law. Congress is the sole creator of laws, not the judicial system. Neither should the judicial system be the place of import of foreign laws into our system. This is critical at a time when human liberty is being trampled by governments and Islamic sharia law in attempting to force it way into our judicial system. If the citizens of the United States desire such laws, then they have Congress to write them and the President to approve them. In addition, judicial tyranny is alive and well in this country because the judges are appointed for life and the process of impeachment is too difficult to implement. To put it back in the hand of the people, the true holders of liberty, they must have a say in who are judges. But rather than elect judges directly, which leads to fickleness if too often, we should allow the current system to appoint judges and the people renew. If a judge trod upon rights of the people, their tenure can be limited. But again, this will become arbitrary and subject to deceitfulness if the people do not have knowledge of the judge’s record. The Bible says that the people perish for lack of knowledge (Hos 4:6). Such is the way of elections when the electorate is without knowledge.
The Constitutional Renaissance Convention should place the Judicial Powers Checks and Balances Amendment as one of its top priorities.