Among the changes Perry would like to see made are abolishing lifetime tenure for federal court judges, an override of Supreme Court decisions by a two-thirds majority of Congress, and the repeal of the Seventeenth Amendment.
Perry says of abolishing lifetime tenure that "members of the judiciary are "unaccountable" to the people, and their lifetime tenure gives them free license to act however they want." But the original intent of Article III was precisely to insulate judges and justices of the federal court from public opinion. For the Founders, the most dangerous branch--and arguably still the most dangerous branch--is the legislative branch, because it is closest to the people. Although it is without question that the Supreme Court has expanded their own power since the ratification of the Constitution, Perry's amendment would allow good originalist justices like Clarence Thomas and Antonin Scalia to be at the mercy at the likes of Nancy Pelosi, Harry Reid, and Chuck Schumer.
Although well intentioned on Perry's part, his proposal to overrule Supreme Court decisions implies that those decisions are the final arbiter of the Constitution. The Founders never intended such a thing. Perry may want to consult Jefferson on this matter: "[N]othing in the Constitution has given [the judiciary] a right to decide for the Executive, more than to the executive to decide for them...But the opinion which gives to the judges the right to decide what laws are constitutional, and what are not, not only for themselves in their own sphere of action, but for the Legislature & Executive also, in their spheres, would make the judiciary a despotic branch." In 1858, Lincoln argued in the wake of the Dred Scott decision that while he would respect the opinion of the court when it came to that particular case he would not apply it as a principle. At that time there was a case making its way up the New York court system that, if it had reached the Supreme Court, would have made slavery not only constitutional in the territories but newly formed states would have been forced to accept slavery as well.
If Perry wants to run as a principled conservative, he has to do a little better than this.
Where's the checks and balances?
ReplyDeleteI kind of agree with amending to make marriage male/female only and finally getting rid of abortion, but in this day and age just the marriage stance alone will keep him from getting elected.
Sad, but true.
I know someone who said they'd vote for Ralf Nadar because he wants to legalize weed. Of course I said he's an idiot for voting for someone for something so petty...
For Roe to be overturned, we need either a constitutional amendment or federal legislation that bans abortion in most cases and leaves some of the grey area back to the jurisdiction of the states.
ReplyDeleteOn your point on checks and balances: Congress can pass legislation in contradistinction to a ruling of the Court, whereby the Court would most likely have to take up the same question somewhere down the road. Also, Article III states that judges can hold office during "good behavior" which means that under unusual circumstances, they can be impeached.
But the main problem comes from the idea that the Supreme Court is supreme over the Constitution, an idea that most of the American people unfortunately still believe. I believe that this is what Rick Perry's whole case rests upon.
You can thank federal public education for that...
ReplyDeleteThat's what happens when the social studies curriculum in this state teaches that our rights come from the Constitution.
ReplyDeleteBefore an eventual compromise with the Anti-Federalists, many of the leading founders were against the inclusion of a bill of rights in the Constitution. One of their arguments was that the people would begin to think that their rights were granted by the Constitution.