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posted by martyb on Friday December 11 2015, @05:50AM   Printer-friendly
from the pandora's-box dept.

The U.S. Constitution has 27 amendments; each was proposed by Congress and ratified by the states.

However, the Constitution sets forth another procedure, never before used, for amending the Constitution. At the request of two thirds of the states, a constitutional convention would be held, at which amendments could be proposed. Any proposals would become part of the Constitution if three fourths of the states ratified them, either at state conventions or in the state legislatures.

Currently, 27 of the needed 34 states have petitioned Congress for a constitutional convention, for the ostensible purpose of writing a balanced-budget amendment (BBA). However, the convention might propose other changes in addition or instead of a BBA—even a total rewrite of the Constitution—if 38 states agreed, the changes would become law.

In November, legislators from 30 states met in Salt Lake City to discuss the matter.


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  • (Score: 2) by jmorris on Friday December 11 2015, @08:20AM

    by jmorris (4844) on Friday December 11 2015, @08:20AM (#274869)

    Here is a proposed amendment.

    The Supreme Court has usurped the legitimate powers of the Legislature, the Executive and the governments of the States unto itself. To correct this problem there shall be an explicit corrective power for the Congress and the States.

    By two thirds vote of both chambers of Congress any decision of the Supreme Court can be declared an abuse of the Court's authority and rendered null and void. A ruling so declared shall have no impact on case law, no binding precedent and in fact shall be considered as an improper overreach for the purpose of future precedent.

    The same result may be obtained by a simple majority vote in the Legislatures of two thirds of the States.

    This power must be exercised within one year of the disputed ruling by the Court.

    Use of this power may not result in double jeopardy for any individual in a criminal case although it will still remove the case from the recorded case law and all use as binding precedent for any other future purpose. It also may not cause exceptions to the prohibition on expost facto convictions.

    The Justice who authors a ruling declared an Abuse according to this Amendment shall be declared unfit to serve and replaced through the normal process.

    --

    As an example of what I'm aiming for, had this amendment existed before the Miranda case was handed down and it were struck by this procedure, Miranda and any criminals set free in the intervening time would still have to remain free but it could never be cited as case law in new cases or used as precedent in new rulings so cops wouldn't have those stupid cue cards everybody who has watched Cops already can quote by memory. On the other hand were it available as a remedy when the gay 'marriage' fiasco happened it would be totally reversed leaving zero anomalies. But if the Supremes legalized weed and were then reversed the cops couldn't then round up everyone who was selling and smoking in public while the ruling was being overthrown.

    Have I missed any obvious loopholes that would lead to abuse? So what amendments would everyone else like to see?

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  • (Score: 4, Insightful) by Anonymous Coward on Friday December 11 2015, @08:31AM

    by Anonymous Coward on Friday December 11 2015, @08:31AM (#274877)

    By two thirds vote of both chambers of Congress any decision of the Supreme Court can be declared an abuse of the Court's authority and rendered null and void. A ruling so declared shall have no impact on case law, no binding precedent and in fact shall be considered as an improper overreach for the purpose of future precedent.

    So if the Supreme Court said that the government can't censor speech, for instance, you would want to possibly allow this decision to be overridden by a simple vote by Congress? That sounds like a terrible idea. Sometimes the only thing protecting our rights is the Judicial branch. I can imagine all sorts of situations where the Supreme Court would be overridden in the name of national security so that the government could violate our rights.

    Instead of this nonsense, I'd rather see politicians, judges, and those who do the government's bidding punished for attempting to overthrow our constitutional form of government. Everyone working for the TSA, NSA, etc. should be imprisoned, as well as the politicians who allowed them to engage in their unconstitutional activities. Also, politicians who voted for the Unpatriotic Act should be imprisoned.

    I'd also like to see recognition of the fact that, if the government tasks a private company with doing something that it itself could not normally do under the constitution, that company becomes a de facto part of the government in that instance. Just so they can't mandate that companies hold data for them for X amount of time; that's hardly different than the government collecting it, since they are holding it for the government because the government demanded it.

    • (Score: 0) by Anonymous Coward on Friday December 11 2015, @10:53PM

      by Anonymous Coward on Friday December 11 2015, @10:53PM (#275201)

      The Constitution describes the Supreme court as an appellate court (the last in a line of such courts).
      It definitely is NOT a legislature and NOT empowered to -create- laws.

      WRT to SCOTUS' rejection of the dastardly Trail of Tears program, Andrew Jackson famously said "John Marshall has made his decision; now let him enforce it."

      In addition, an appellate court rules on **the case at hand**.
      While SCOTUS often joins together similar cases, those who are not party to the lawsuit are not bound by the decision.
      (The power that the courts have is "precedent": the realization that if someone else does the -same- type of thing and are sued, it's likely that that decision will -also- go the same way--and will waste a bunch of cash on lawyers.)

      -- gewg_

  • (Score: 2) by NotSanguine on Friday December 11 2015, @12:25PM

    by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Friday December 11 2015, @12:25PM (#274933) Homepage Journal

    Here is a proposed amendment.

    The Supreme Court has usurped the legitimate powers of the Legislature, the Executive and the governments of the States unto itself. To correct this problem there shall be an explicit corrective power for the Congress and the States.

    By two thirds vote of both chambers of Congress any decision of the Supreme Court can be declared an abuse of the Court's authority and rendered null and void. A ruling so declared shall have no impact on case law, no binding precedent and in fact shall be considered as an improper overreach for the purpose of future precedent.

    The same result may be obtained by a simple majority vote in the Legislatures of two thirds of the States.

    This power must be exercised within one year of the disputed ruling by the Court.

    Use of this power may not result in double jeopardy for any individual in a criminal case although it will still remove the case from the recorded case law and all use as binding precedent for any other future purpose. It also may not cause exceptions to the prohibition on expost facto convictions.

    The Justice who authors a ruling declared an Abuse according to this Amendment shall be declared unfit to serve and replaced through the normal process.

    I hate to break it to you, but what you're 'proposing' is already the law of the land, and has been since the ratification of the U.S. Constitution.

    1. Congress can (and has) pass(ed) new legislation in response to Supreme Court decisions, rendering those decisions null and void. The several states can (and have) overruled Supreme court decisions by ratifying amendments to the constitution.

    2. Aside from the one year restriction (which does not exist at the moment) you suggest, all the rest is already enshrined in our constitution and the amendments thereto, including the removal of Supreme Court justices.

    I suggest you familiarize yourself with this document [wikipedia.org]. It may help you to understand.

    --
    No, no, you're not thinking; you're just being logical. --Niels Bohr
    • (Score: 2) by jmorris on Saturday December 12 2015, @03:08AM

      by jmorris (4844) on Saturday December 12 2015, @03:08AM (#275286)

      Actually it appears to be you who haven't actually cracked a history book. But since you at least put up a valiant attempt vs the totally moronic AC comments I'm going to actually deal with yours. Shocking low level of civics education on display here. :(

      1. Congress can (and has) pass(ed) new legislation in response to Supreme Court decisions, rendering those decisions null and void. The several states can (and have) overruled Supreme court decisions by ratifying amendments to the constitution.

      Not really. Sure, if Congress were really determined they could in theory simply impeach every Supreme and amend the Constitution but that in fact never happens. The States themselves have never had recourse against the Supremes. They -could- convene a Convention of the States, which is what is under discussion here, but since they haven't managed to pull it off in two centuries the threat doesn't seem to be a strong deterrent to an out of control SCOTUS. Congress can override some Supreme Court rulings with a normal bill but often imperfectly.

      There is a difference between what is technically possible and what the actual reality is. There is also benefit in formalizing the concept of Congress or the States being able to check the court when it oversteps its lawful authority. In actuality it is doubtful it would ever be successfully invoked, but it would be because the mere existence of it would change the political calculus of both the Court and Congress. Currently the Congress often secretly approves of the Court's activism but the People are outraged. So Congress engages in failure theater.

      My amendment ends that, requiring a straight up or down vote of disapproval, one the voters back home would unmistakably see in the record. And of course the Court would not just fear being overruled (and losing a Justice), the worst scenario would be a near miss. Imagine the nightmare scenario had this amendment existed when they legislated marriage redefinition. A majority of Congress approved of it but know it would be a career ending move to say it in public, so many would vote to override; knowing they would fail to achieve 2/3 because there are at least 34 Senators who will not oppose the Narrative for any reason. Which would have a Court making a law overthrowing the existing laws in a majority of the States and rebuked by a majority of Congress... and their law still standing. The fight would then move to pitched battles in the States, most of which had laws and recently passed Constitutional amendments of their own and would have angry populations demanding action... and again they would likely fail to get 2/3. The legitimacy of the court's authority would be broken in the process. However it still wouldn't be over since a majority of Congress would still be on record opposing, lesser remedies through regular laws would then be proposed, and having voted to override and remove a Justice, Congress would be hard pressed to fail without paying a horrific political price. Which would bring the POTUS in to veto and save the Narrative, throwing a poopstorm in that direction. And if the days of the Court making a claim to be a non-political entity was the only thing to be destroyed by the time the dust settled we would be very fortunate indeed. The Court, being politicians (despite protests of innocence), are smart enough to see that outcome of chaos. They wouldn't have made the ruling. If Progs wanted a new law in the future they would have to pass it through Congress instead of using the Supreme Court or at least be certain they could maintain a bare majority in Congress to uphold the Court's rule.

      Contrast to what actually happened. Despite a majority of the States having recently acted, despite Congress having passed DOMA back in the Clinton Admin, despite Obama himself running on a platform of opposition to marriage redefinition the Supremes made their law and everyone feigned helplessness and avoided paying a political price. This is the typical pattern. It must be ended, rule by an unelected, unrecallable, super legislature makes a mockery of our Republican form of government.

      • (Score: 2) by NotSanguine on Saturday December 12 2015, @09:54PM

        by NotSanguine (285) <NotSanguineNO@SPAMSoylentNews.Org> on Saturday December 12 2015, @09:54PM (#275563) Homepage Journal

        Actually it appears to be you who haven't actually cracked a history book. But since you at least put up a valiant attempt vs the totally moronic AC comments I'm going to actually deal with yours. Shocking low level of civics education on display here. :(

        1. Congress can (and has) pass(ed) new legislation in response to Supreme Court decisions, rendering those decisions null and void. The several states can (and have) overruled Supreme court decisions by ratifying amendments to the constitution.

        Not really. Sure, if Congress were really determined they could in theory simply impeach every Supreme and amend the Constitution but that in fact never happens. The States themselves have never had recourse against the Supremes. They -could- convene a Convention of the States, which is what is under discussion here, but since they haven't managed to pull it off in two centuries the threat doesn't seem to be a strong deterrent to an out of control SCOTUS. Congress can override some Supreme Court rulings with a normal bill but often imperfectly.

        Actually, Congress has overruled the Supreme court [prospect.org] on a number of occasions.

        What's more, Constitutional amendments have overruled Supreme court decisions (with just a quick review), including the Dred Scott [wikipedia.org] decision which was nullified by the Thirteenth Amendment [wikipedia.org] and Breedlove v. Suttles [wikipedia.org], overriden by the Twenty-Fourth Amendment [wikipedia.org].

        But since it wasn't stuff that you care about, it never happened right?

        What's more, as you point out, we are not a democracy, we are a constitutional republic. This was by design, to make sure that minority rights would be protected from the tyranny of the majority. The examples you provide about marriage equality and DOMA are perfect examples of minority rights being protected by our constitutional republican system.

        You make my arguments for me friend. Thanks!

        --
        No, no, you're not thinking; you're just being logical. --Niels Bohr
  • (Score: 3, Insightful) by snick on Friday December 11 2015, @02:32PM

    by snick (1408) on Friday December 11 2015, @02:32PM (#274974)

    In other words ... The constitution isn't rules so much as guidelines. 2/3 of Congress can do whatever it wants, and the constitution can go fsck itself.

  • (Score: 1) by Lukehasnoname on Friday December 11 2015, @03:11PM

    by Lukehasnoname (3303) on Friday December 11 2015, @03:11PM (#274987) Homepage

    Repudiating the SCOTUS involves passing an amendment or a Congressional bill. They just don't do it often.

  • (Score: 0) by Anonymous Coward on Friday December 11 2015, @03:15PM

    by Anonymous Coward on Friday December 11 2015, @03:15PM (#274989)

    Um, no. You obviously missed the concept of checks and balances introduced by the authors of the Constitution. The Supreme Court has authority most limited in scope of any of the three branches of government. They can't draft executive orders or legislation. (Think about that - that's pretty limited).

    What they can do is strike down orders or legislation, siting the Constitution, after months of well-prepped testimony from both sides and vigorous debate. There's usually a pretty good balance between conservative and liberal justices, too.