Aligning the Supreme Court with the US Constitution
February 16, 2016
Published on EthicalMarkets.com
The replacement of Justice Antonin Scalia could cause political turmoil and gridlock in the US government for the next year. Is this what the US Founders intended? Absolutely not. Supreme Court appointments often are tumultuous because they occur infrequently and justices nearly have the power of kings. Under current constitutional interpretations, the Supreme Court can unilaterally and irrevocably void acts of the Legislative and Executive Branches. This makes the Judicial Branch the strongest branch of government. In addition, Supreme Court Justices are unelected, lifetime appointed and largely unaccountable to the people. They are aristocrats. When a lifetime appointed, aristocratic, unaccountable branch of government has absolute authority over the two elected branches, democracy and republican government largely do not exist.
Our Founders rebelled against the aristocratic British government. They absolutely did not intend to establish aristocracy in the US. The current function and authority of the Judicial Branch are heavily influenced by the Federalist Papers related to the Judiciary (Nos. 78 to 83), which were written by Alexander Hamilton. Alexander Hamilton admired the British form of government. During the Constitutional Convention of 1787, he proposed that the President, Senators and judges serve for life once elected or appointed. He also proposed that Congress appoint state governors and have veto power over state legislation. His proposals largely were ignored during the Constitutional Convention because they established aristocracy and took too much power from the states. James Madison referred to Alexander Hamilton as a monarchist.
Alexander Hamilton failed to achieve the aristocracy he advocated during the Constitutional Convention. But he ultimately won. In the Judicial Federalist Papers, he supported lifetime judicial appointments and said the Supreme Court should be empowered to interpret the Constitution and void laws that violate it, a power known as judicial review. But Alexander Hamilton acknowledged that the Constitution does not give the Judicial Branch the authority to void laws. He also points out that the Constitution gives Congress substantial authority to structure and regulate the Judiciary and that there is nothing in the Constitution that prevents Congress from reversing judicial decisions.
In an 1803 case, Marbury v. Madison, the Supreme Court unilaterally gave itself the power to irrevocably void executive and legislative acts. As President Lincoln said, this essentially ended republican government (i.e. citizens controlling government through elected representatives). The Constitution gives all ultimate authority to We the People. The Founders made Congress the most powerful branch of government because it is regularly elected, and therefore closest to the people.
James Madison, Thomas Jefferson, James Wilson and other Founders made clear that the Judicial Branch was intended to be the weakest branch of government because it is unelected, and therefore farthest from the people. Articles I and III give Congress the power to structure and implicitly regulate the Judiciary. Article III, Section 2 gives Congress explicit, unlimited authority to restrict and regulate the Supreme Court on appellate cases (i.e. nearly all Supreme Court cases). The Founders did not intend that a small group of unelected judges would have absolute authority over all citizens and the people’s elected representatives.
They also did not intend that justices would be aristocrats who serve for life, especially with absolute authority over the elected branches. Voluntary rotation in office was common practice in the early US. George Washington did not seek a third term as President. The first ten Supreme Court justices voluntarily left office after an average of eight years. This was consistent with the structure of the US government (i.e. two years for Representatives, four years for the President, six years for Senators, eight years for Justices). The Constitution says that judges “shall hold their Offices during good Behaviour”. Some delegates to the Constitutional Convention believed that during good behavior referred only to a standard for removal from office, not lifetime appointments.
The Founders provided substantial details about the structure of the Legislative and Executive branches in Articles I and II. But they provided far fewer details about the structure of the Judicial Branch in Article III. Instead they empowered Congress to structure and largely regulate it. If an important aspect of the Judiciary is not established in the Constitution, then Congress has the power to establish it. Judicial terms of office are not explicitly defined in the Constitution, as they are for the Legislative and Executive branches. The Constitution does not say that judges shall hold office for life or until they voluntarily retire. Holding office during good behavior could be interpreted to simply mean that maintaining good behavior is a requirement for remaining in office. Congress has the authority to define and implement judicial term limits because specific terms were not defined in the Constitution.
The Constitution also does not establish an adequate mechanism for holding justices accountable. It holds the President, Senators and Representatives accountable through elections. But judges are unelected. In the Federalist Papers, Alexander Hamilton argued that judges are adequately held accountable through the impeachment process described in Articles I and II. But as Thomas Jefferson said, this is incorrect. Article II says that civil officers of the United States only can be impeached for treason, bribery and other high crimes and misdemeanors. Under current constitutional interpretations, it would be nearly impossible to remove justices for gross judicial errors, incompetence or violating the Constitution, in part because the Supreme Court gave itself the authority to interpret the Constitution. In addition, the impeachment process establishes a high standard for removal from office. A two-thirds vote is required in the Senate. This would be very difficult to achieve in today’s highly partisan environment.
The Founders obviously did not intend that judges who make gross judicial errors, become incompetent or violate the Constitution would remain in office. The Constitution establishes no mechanism for removing judges for these and other valid reasons. Therefore, Congress can establish a process, for example, by defining good behavior and implementing mechanisms for removing judges who violate the standard. Removing judges in a partisan environment could be difficult. Imposing term limits greatly reduces this problem.
Vested interests often argue that establishing judicial independence was a goal of the Founders. But this is misleading. Judicial independence was a tool, not a goal. The primary goals of the Founders were promoting the general welfare and establishing republican government. These goals take priority over all else, including judicial independence. Full judicial independence equals no accountability to the people, the legitimate rulers of society. Judicial accountability takes priority over judicial independence because there is no republican government without accountability to the people.
Vested interests also frequently argue that there must be a mechanism for ensuring that laws do not violate the Constitution. This also is highly misleading. It implies that the Judiciary must ensure that laws comply with the Constitution. But the Constitution does not establish this. Instead, it establishes at least four mechanisms to ensure compliance – Presidential veto, the two-house structure of Congress, regular elections, and the oath of allegiance to the Constitution. Congress could give judges some compliance role, for example, by establishing the council of revision proposed by James Madison during the Constitutional Convention. But final judicial authority must not rest with a branch that is not controlled by the people. This weakens or ends republican government.
Also the need to ensure that laws do not violate the Constitution is smaller than vested interests frequently allege. Article I, Section 8 gives Congress the authority to pass any law that it believes is necessary to promote the general welfare, provided that these laws do not violate the few explicit or implicit prohibitions in the Constitution, such as passing ex post facto laws or violating the Bill of Rights. Article VI places these laws on an equal footing with the Constitution. The Constitution empowers Congress to define the general welfare and pass nearly any law necessary to promote it. The President can veto these laws. But the Judiciary is given no general authority to insert itself into the lawmaking process. It cannot place its opinion about promoting the general welfare above Congress’s opinion. The people’s elected representatives are authorized to define the general welfare, not the unelected Judiciary.
For example, if Congress decides that providing healthcare to all citizens through government programs (as every other developed country does) is a necessary component of promoting the general welfare, the Judiciary has no constitutional authority to render an opinion in this area. As Thomas Jefferson said, the Supreme Court only has authority to decide how laws apply in specific legal cases. Even this authority can be restricted via Article III.
Vested interests often argue that the Founders intended lifetime judicial appointments because this protects the judiciary from political influence. But lifetime appointments have the opposite effect. By giving money to politicians and influencing government in other ways, wealthy citizens and corporations can compel the appointment of judges who are highly biased towards protecting these groups.
Lifetime appointments facilitate the worst form of political influence – influence that cannot be corrected. Once vested interest-biased judges are appointed, they generally cannot be removed, according to current constitutional interpretations. This locks political influence into government and effectively gives vested interests long-term control of the most powerful branch of government. Through Citizens United and other decisions, biased justices served those who paid to appoint them by giving wealthy citizens and corporations even stronger control of government.
Alexander Hamilton argues that lifetime appointments will better enable the Supreme Court to uphold the Constitution. But this is not logical. No other country appoints supreme court justices for life. Lifetime appointments with limited ability to remove judges from office greatly reduces consequences. It makes justices vulnerable to hubris, partisanship and corruption, and thereby increases the likelihood that they will violate the Constitution. If justices know that their decisions could be reviewed in a few years by the judges who replace them, they will be more likely, not less, to abide by the Constitution.
Some people argue that Congress exercising its constitutional authority to rein in the Judicial Branch is problematic because the Legislature also is corrupted by money and influence from wealthy citizens and corporations. But citizens have the power to correct this corruption through elections. However, they cannot correct corruption, vested interest bias or political influence in an unelected, lifetime appointed judiciary. Therefore, as long as lifetime judicial appointments are in place, maintaining republican government requires that final authority to interpret laws and the Constitution remain with Congress.
Congress tried many times in the 1800s and early 1900s to impose judicial term limits and restrict the power of judicial review. These efforts largely were unsuccessful. However, the fact that they occurred illustrates that Congress has the constitutional authority to impose term limits and remove or restrict judicial review, if it develops the will to do so.
Reforming the Judicial Branch by imposing term limits and restricting judicial review is essential for establishing democracy and the republican government that our Founders clearly intended. Ending aristocracy in the Judicial Branch is perhaps the most important change needed in the US government. It also is one of the easiest to implement. No constitutional amendments are needed. Congress can impose term limits and revoke judicial review through simple legislation. It also can reverse federal judicial decisions, including Citizens United.
The Supreme Court had no constitutional authority to unilaterally grant itself the power to irrevocably void legislative and executive acts in 1803. However, Congress does have explicit, strong constitutional authority to structure and regulate the Judiciary. Congress can do what the Supreme Court unconstitutionally did in 1803. It can use its constitutional authority to unilaterally impose judicial term limits and restrict judicial review. The President could veto this legislation. But the Judicial Branch would have no recourse.
When Congress does not exercise its constitutional authority over the Judicial Branch, it mainly is not being magnanimous, respecting tradition or deferring to legal experts. It is giving away the people’s constitutional authority to control government, and by doing so effectively ending republican government. The Constitution makes the people’s elected representatives the highest authority in government, not unelected judges.
Imposing term limits and restricting judicial review would greatly reduce the tumultuous and disruptive nature of Supreme Court appointments. Each appointment would be less significant because term limits would drive rotation in the federal courts and thereby significantly increase the number of appointments. Restricting judicial review would ensure that judicial servants of the people are appointed, as required by the Constitution, instead of judicial masters. Increasing rotation and removing the monarchical power of Supreme Court justices would align the Supreme Court with the Constitution and substantially reduce the significance of each Supreme Court appointment.
Vested interests might attempt to mislead citizens into thinking that these congressional actions would be a constitutional crisis. But the constitutional crisis occurred in 1803 when the Supreme Court effectively ended republican government in the US. Imposing judicial term limits and restricting judicial review is rectifying a constitutional crisis that has been allowed to linger for far too long.
An upcoming book, called Global System Change: Achieving Sustainability and Real Prosperity, provides more details about judicial reform and other necessary government changes. Through a whole system approach, Global System Change links and describes essentially all major economic, political and social system changes needed to achieve sustainability and real prosperity.
In his Farewell Address, George Washington called political parties the worst enemy of elected government. Vested interests use political parties to divide citizens into debating, acrimonious factions, such as conservatives and liberals. When the people are divided, we are conquered. Over the past 35 years, the small group of wealthy citizens who largely control both major political parties has done phenomenally well, while life became more difficult for nearly all other citizens. The fighting between two major political parties is a sham that has existed since nearly the beginning of the US. As George Washington warned long ago, the political party system divides and disempowers citizens. It enables vested interests to take control of government and essentially steal the public wealth through many forms of corporate welfare. The need to greatly weaken the political party system and establish true democracy is discussed extensively in Global System Change.
(Alexander Hamilton started the first political party in the US, the Federalists. It probably is no coincidence that the monarchist Alexander Hamilton largely is responsible for two of the most important factors enabling a small group of wealthy citizens to control the US government and society overall – political parties and an unelected, lifetime appointed Supreme Court that has absolute authority over the elected branches.)
The passing of Justice Scalia has set the stage for a Republican-Democratic battle royal during a presidential election year. But the Founders did not intend that replacing Supreme Court Justices would be such a major, traumatic event in the US. Appointing the next Justice is important. But the far more important issue is changing the unconstitutional, aristocratic structure of the Judicial Branch. We the people must demand that our Congressional servants do what the Founders intended and the Constitution clearly stipulates – establish republican government. We must compel our Congressional servants to align the Judicial Branch with the US Constitution.
Vested interests sometimes argue that Supreme Court justices are not the highest authorities in the US because the people can amend the Constitution. But the Founders intentionally made constitutional amendments difficult. The people mainly were intended to control government through elections, not constitutional amendments. In the current, highly partisan political environment, constitutional amendments essentially are impossible. This effectively makes Supreme Court justices the highest authorities in the US. They are our kings and queens. But this absolutely is not what the Founders intended.
Having an unelected Judiciary did not violate republican government because the Founders gave Congress clear authority to control the Judicial branch. As long as the people’s elected representatives controlled the Judiciary, our government was republican. But Congress has not adequately exercised its authority over the Judicial Branch. Instead, it has allowed the Supreme Court to unconstitutionally assume the role of supreme rulers in the US. But the Founders made We the People the supreme rulers, not unelected judges. Our country should not be controlled by a small group of aristocratic judges or a small group of wealthy citizens. We the People have all ultimate power. It is time to claim it.
Global System Change discusses the need to establish a We the People movement in the US. We the People agree on nearly all major issues. All sane people want a strong economy, good jobs, a clean environment, good healthcare and education, low crime, efficient and effective government, and good international relations. But vested interests use emotional manipulation, political parties and media deception to divide and disempower citizens. Through a We the People movement, we can unite on our massive areas of common interest. Then like mature adults, we can seek compromise on remaining areas of disagreement, as our Founders did during the Constitutional Convention.
Global System Change advocates a whole system approach. Achieving judicial reform in isolation could be difficult. A corrupted Congress would continue to primarily serve those who give large amounts of money to politicians and inappropriately influence government in other ways. But as noted, a corrupted Congress is less dangerous than a corrupted Judiciary because the people have recourse. As We the People unite and assert our natural and constitutional right to self-government, we can implement a suite of government reforms that removes inappropriate vested interest influence from all branches of government, weakens political parties and makes it easy for adult citizens to vote.
Frank Dixon oversaw the sustainability analysis and rating of the world’s 2,000 largest companies for many years as the Managing Director of Research at Innovest Strategic Value Advisors, formerly the largest corporate sustainability research firm in the world. Institutional investors used Innovest research to develop high-performing socially responsible investing products. Extensive corporate sustainability experience made it clear that flawed systems compel all companies to degrade the environment and society. Frank Dixon developed the TCR® approach to provide a practical and profitable way for companies and investors to engage in system change. Following Innovest, he provided sustainability and system change consulting to companies in the US and Europe. Most recently, he wrote the Global System Change series of books. Using a whole system approach, the books identify the major economic, political and social system changes needed to achieve sustainability and real prosperity.
Frank Dixon is an advisor to Ethical Markets Media. He has an MBA from the Harvard Business School.
Copyright © 2016 Frank Dixon