Legislative override of SCOTUS

The proponent offers the following plan to put in check a judiciary acting in excess of their Article III powers: "Congress will propose, and the states will adopt an amendment to the Constitution to provide for a legislative override of a Supreme Court decision by either a three-fifths vote of both houses of Congress, or by a three-fifths vote of the State Legislatures. The override must be exercised within two years of the Supreme Court"s decision. It is not subject to a presidential veto or to litigation or review in any federal or state court." I disagree with this plan for two (3) reasons. The first being, Article V already provides a mechanism for Congress and/or the several States to "override" judicial precedence. The second, is that proponent's plan runs afoul of the delicate system of checks and balances the Framers constructed in the Constitution. The third is that the time limitation in the plan is arbitrary. 1. Article V of the Constitution of the United States of America provides: "The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose Amendments to this Constitution, or, on the Application of the Legislatures of two thirds of the several States, shall call a Convention for proposing Amendments, which, in either Case, shall be valid to all Intents and Purposes, as Part of this Constitution, when ratified by the Legislatures of three fourths of the several States, or by Conventions in three fourths thereof, as the one or the other Mode of Ratification may be proposed by the Congress; Provided that no Amendment which may be made prior to the Year One thousand eight hundred and eight shall in any Manner affect the first and fourth Clauses in the Ninth Section of the first Article; and that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate." This is the Amendment process the Framers provided so that the Constitution could be altered from time to time. This mechanism has been used successfully twenty-seven (27) times to date. Because this mechanism exists, the proponent's plan is unnecessary. Moreover, proponent's plan, at least as it relates to passing a bill in the Senate, effectively authorizes the legislature to force its will upon the Judiciary by simply passing legislation. A 3/5 majority requirement in the Senate exists now - that is the proportion necessary to vote down a filibuster. While this Plan does make it more difficult for the House to pass such legislation, the Proponent has failed to make a case why, upon a 3/5 majority of the House should have the Power to nullify the Supreme Court's decisions, instead of the present 2/3 supermajority required by the Fifth Article of our Constitution. Finally, Article V requires that an proposed Amendment be ratified by 3/4 of the states' legislatures. Proponent's plan offers no ratification process whereby the several States can limit the federal Legislature in their use of this Plan. The Proponent has not addressed this deviation from Article V. 2. The Constitution established three forms of power of the federal government: legislative, executive, and judicial. These powers were vested in three distinct departments of government. The legislative powers are limited to those which are granted by the Constitution, which are mostly enumerated in Article I, Sections 8, 9. The Executive is charged with taking care to faithfully execute those laws. The Legislative and Executive Departments necessarily are more powerful bodies of the federal government. Between those two bodies, each has significant checks on the other. If the Executive believes the Legislative is acting without its Article II authority, it can decline to execute the laws or execute the laws accordance with its interpretation. If the Legislative believes the Executive is acting in excess of its Article I authority, it can impeach and remove the President from office, or defund the Executive Department. But, in those instances, we fail to have a working government. What if the Legislative defunds the Executive, but cannot remove the President from office? There is no body to execute the laws. What if the Executive refuses to execute the laws of the Legislative branch, or arbitrarily executes laws is it interprets them? These circumstances are crises. The Judiciary therefore, must be able to place checks on the other two bodies and resolve these conflicts. It necessarily has the authority to determine whether the Legislature is acting within its enumerated powers, and whether the Executive is faithfully executing the laws. Chief Justice Marshall wrote in Marbury v. Madison, 5 U.S. 137, 177-78 (1803), that '[i]t is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each. So if a law be in opposition to the constitution: if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law: the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty." Similarly, Alexander Hamilton, writing in support of our Constitution in Federalist No. 78 said the following: "If it be said that the legislative body are themselves the constitutional judges of their own powers, and that the construction they put upon them is conclusive upon the other departments, it may be answered, that this cannot be the natural presumption, where it is not to be collected from any particular provisions in the Constitution. It is not otherwise to be supposed, that the Constitution could intend to enable the representatives of the people to substitute their WILL to that of their constituents. It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority. The interpretation of the laws is the proper and peculiar province of the courts. A constitution is, in fact, and must be regarded by the judges, as a fundamental law. It therefore belongs to them to ascertain its meaning, as well as the meaning of any particular act proceeding from the legislative body. If there should happen to be an irreconcilable variance between the two, that which has the superior obligation and validity ought, of course, to be preferred; or, in other words, the Constitution ought to be preferred to the statute, the intention of the people to the intention of their agents." Hamilton continued by saiying "[t]his independence of the judges is equally requisite to guard the Constitution and the rights of individuals from the effects of those ill humors, which the arts of designing men, or the influence of particular conjunctures, sometimes disseminate among the people themselves, and which, though they speedily give place to better information, and more deliberate reflection, have a tendency, in the meantime, to occasion dangerous innovations in the government, and serious oppressions of the minor party in the community." Id. The take-away, is that the Judiciary sits in defense and fidelity to the Constitution. It is to make judgment, not based on popular sentiment, or their peculiar beliefs, but within the framework of the Constitution. The Judiciary is, necessarily, not a popular branch of government. It is not a representative entity to the people. If it were, it would by subject to the whims of the majority, as are the other two branches. The purpose of the Court is to protect and preserve the fundamental rights of the people and limit the federal government to that authority which it was delegated in the Constitution. The new authority you propose, potentially increases the authority of the Legislature against unpopular judgments of the Court. However, that is an essential characteristic of the Court - to make unpopular decisions when the Constitution demands it. I will address one particular case you cited as authority for the Court acting in excess of its authority. You cited Wickard v. Filburn, 317 U.S. 111 (1942). This case expanded the interpretation of the Commerce Clause to include those activities which indirectly impact the national market. However, when supplied with historical context, this case only supports the proposition that the Judiciary ought to be INDEPENDENT of the other two departments. This case was a result of FDR's push for the New Deal and his court-packing plan. The Legislature had abdicated its responsibilities to FDR. FDR then bullied the Court into accepting the New Deal. If your Plan would be enacted, a powerful executive like FDR would have unfettered control - it would allow for a despot. 3. Finally, why provide for a limitation of only two (2) years? What purpose does that serve? It's arbitrary and you have provided no support for such a suggestion. In closing, there is already a mechanism to keep the Supreme Court in check rendering the Proponent's Plan moot. Moreover, his Plan would endanger the independence of the Judiciary, the watchdog of our government. For these reasons, I oppose the plan.