The U.S. Constitution Should be Amended to Limit Judicial Activism

Currently, the Constitution does not specify how disputes over Constitutional rights should be resolved. It neither states the criteria for resolving them or the mechanism for the resolution. By tradition the Supreme Court resolves the issues using whatever criteria pleases them. The point of having a written constitution is to have laws prevail over men, so the ambiguity over the criteria and method is a serious defect that should be remedied. The Constitution should be amended to establish that (1) the Supreme Court shall have the authority to rule whether or not a law is valid with respect to rights guaranteed by the Constitution, (2) the criteria to be used in the determination by the Court is the Constitution as written and amended as intended by the authors of the Constitution and amendments, and (3) that the Congress may, by two-thirds vote, overrule Court decisions with respect to issues of intent, the nature of such issues being determined by Congress. The proposed amendment would have no effect on the Court's role in adjudicating issues of law unrelated to the Constitution, such issues being the great majority of the Court's business. Under present tradition the Supreme Court has declared that abortion is guaranteed by a right to privacy that is not spelled out in the Constitution. A future Court might ban abortion on the grounds that a right to life is guaranteed by the Constitution. In fact there is nothing in the documents describing the intent of the Constitution that suggests that abortion was considered one way or the other. It should therefore be left as a matter of law. The proposed amendment would restore that to being a legislative matter. The abortion issue is only one example, and is not necessarily the most important one. There are issues related to the death penalty, property rights, and personal freedoms where judicial activism has replaced democracy with the imperial rule of the Court. Arguments in favor of judicial activism must justify the principle of benevolent despotism over democracy, and why it can be trusted to always be benevolent. Currently the power of the Court is checked only by the amendment process, which is so onerous as to be ineffective. The proposed amendment would provide a less onerous check on Court power, although the two-thirds majority would still leave the court with substantial independence. In the democracies of other countries, rights are preserved under the sole responsibility of the legislatures of those countries. This has worked well, and no country has decided it needs an unelected body to supersede the legislature. The propose amendment does not overthrow the American tradition of Constitutional government, but instead restores a more democratic tradition mechanism for interpretation of the Constitution. Strict constructionism versus judicial activism is often framed as a conservative versus liberal issue, because in recent years the activism has been liberal. However, liberal jurists such as Lawrence Tribe have opposed judicial activism on the grounds that written law, democratically adopted, should prevail. The proposed amendment would re-establish the primacy of written law. [aaronr8684 is barred from accepting this challenge]