I propose (without having given it near enough thought–I am counting on the Dope to do that) an amendment that would automatically put it up to the voters at large to overrule the court whenever it declared an act of congress unconstitutional.
Note that this would have no effect if they overturned Roe v. Wade since that was a previous ruling not an act of Congress. But it would very much put in play any ruling such as overturning ACA (I think ACA is as good as dead and Roberts has deliberately waited till after the election to kill it), not mention Medicare, Social Security or any other New Deal legislation. Bring back the voting rights bill. How about new gun restrictions, such as allowing rapid fire weapons only to well-regulated militia? Of course, not all such things would be passed but most of it is very popular.
Canada has something called the ‘necessary and proper clause’. All they have to do is put ‘necessary and proper’ in the ledger of the bill, and the courts in Canada can’t touch it. Forgive me, but that is kind of stupid. The Supreme Court, even in Canada, is the primary source of basic human rights. And that’s all you need to overrule them?
It should take more than that. At least a two thirds majority, IMHO.
Actually, as long as we’re talking about judicial reform in the United States, at the present time, I wouldn’t be opposed to court packing. I’d hoped it would never come to that. But the Republicans have tried every dirty trick. Actually, before that, we could consider term limits. Comedian and political commentator Bill Maher says 18 years. Why not? No one should have THAT much power. I recently thought differently. But as I said, now I don’t know anymore.
Are you sure about that? Maybe my searching is flawed but I just searched the Canadian Constitution for that phrase and I can’t find it. It does appear in the US Constitution though.
It was my understanding constitutional amendments in Canada post-1982 are extremely hard as it requires unanimity among all of Canada’s Provinces and Territories.
Looking at the 182 Acts of Congress that have been ruled unconstitutional by SCOTUS I see a surprising number of them involve some sort of First Amendment issues. I’m guessing a lot of them that look pretty silly right now (you can’t wear a military uniform in a theatrical production if you’re making fun of the military?) were probably popular at the time the laws were passed.
You may want to save the ACA, while someone else may want to ban welfare benefits to illegitimate children.
Looking at the question another way, is fewer than one law per year being struck down by SCOTUS a reasonable number, or rampant judicial activism.
Yes, the purpose of the Court having the power to declare something invalid if it runs contrary to protections found in the Constitution is to make sure a majority of voters (or their representatives) can’t pass laws that violate our rights. If not for that procedure, we would have enforceable laws on our books that make it illegal to burn an American flag.
The phrase doesn’t appear in Canada’s constitution. Jim may have confused his phrase with the Notwithstanding Clause, which does appear in the Charter of Rights and Freedoms (which is part of the constitution).
Basically, this means that a government (federal or provincial) can pass legislation that acts contrary to rights enumerated in the Charter. But only a few specific ones, certainly not all. The Notwithstanding Clause has most often been used by Quebec, to preserve the use of French in the province, contrary to Charter s, 2(b): freedom of thought, belief, and expression. So, if you want to put an English-language sign on your storefront (a form of expression), with no French anywhere on it, you can’t, because in its legislation protecting the French language, Quebec has used the Notwithstanding Clause to deny you your Charter s. 2(b) right.
The amending formula for Canada’s constitution is difficult by design. However, most proposed amendments wouldn’t need unanimity among the provinces–they’d just need the approval of the federal government and 7 provinces comprising 50% of the population. A few proposed amendments, however, would need the consent of the federal government and all ten provinces.
That’s a “no” for me. I am not going to support Califoniazing the way US Constitutional Law works.
Or I may want to reestablish the Voting Rights Act requirements, while someone else may campaign to have Obergefell reverted.
And one thing that people from both directions seem to overlook constantly: the criterion for review of a law is whether it runs contrary to the protections in the Constitution, NOT whether it is righteous and good(*). A law can be bad and be constitutional and vice versa.
(*and yes, I know, there’s a large faction that works backward and just assumes that if it is “bad” it can’t be “what the framers meant”…)
The whole point is that if a particular law does not pass muster, let Congress go back to the drawing board and come up with one that does. That it doesn’t seem to work that way today is an indictment of fecklessness and political cowardice in the elected branches, not of the courts.
Perhaps with a supermajority requirement it could be considered to amend the constitution.
How would you feel about constitutional amendment initiatives? With 2/3 supermajority required? It would, of course, require a standard amendment to allow.
The 16th Amendment was passed specifically because the Supreme Court had ruled individual income taxes unconstitutional, and the 26th Amendment was passed because the Court ruled that legislating the voting age to 18 was unconstitutional, so it’s not out of line.
If the public will is there, it’s doable. On the other hand, the proposed amendment to ban child labor was submitted to the states in 1924 and STILL hasn’t been ratified by 3/4 of the states. In fact, seven states have never even voted on it.
The framers did not mean for the constitution to be a suicide pact.
In fact, most of them didn’t mean for it to be a permanent structure, and intended and left tools for us to update it as needed.
It doesn’t work because of the obstruction of the minority that prevents the legislature from doing its job. The same minority that then points to the ineffectiveness that they themselves created as evidence of a failure of the system.
After 9/11 there would have been strong support for outlawing the Muslim religion. There needs to be a check on horribly discriminatory populist notions that happen to catch fire with the public.
If you have enough votes to get an ammendment passed, you should use it on reforming the selection of the court or the power of the senate.
